AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose and Caitlin Sheehy, Clayton Utz
in relation to product liability claims. Federal legisla - tion obliges parties to take “genuine steps” to resolve a dispute before commencing proceedings in the fed - eral court. Under the federal legislation, genuine steps include the requirement to file a statement specifying the steps that have been taken to resolve the issues in dispute or the reasons why such steps were not taken. Under State Legislation Many states and territories also have various different pre-action procedures in place, which must be under - taken before formal proceedings can be commenced. By way of example, the Australian Capital Territory (ACT) requires the claimant of a personal injury claim to provide a potential respondent with a notice of their claim (in the approved form), which includes brief par - ticulars and copies of any documents directly relevant to a matter at issue in the claim. The respondent must respond to the notice of claim, acknowledging wheth - er they are in fact the proper respondent to the claim or whether they have knowledge of who may be the proper respondent to the claim. If the respondent on whom the notice of claim was served is the proper respondent to the claim, they have an obligation to provide the claimant with copies of all documents in their possession that are directly relevant to a matter at issue in the claim. There is then an obligation on the respondent to attempt to resolve the dispute by making an offer of settlement or counter-offer to any offer made by the claimant. Queensland has a very similar pre-action procedure provided for by the Personal Injuries Proceedings Act 2002 (QLD), except that – in addition to the obligations of the parties outlined above for the ACT – parties in Queensland must also attend a compulsory set - tlement conference before formal proceedings are commenced. South Australia also has pre-action pro - cedures that the parties are required to comply with before commencing formal proceedings in relation to most claims. Consequences of Non-Compliance Non-compliance with the various pre-action proce - dures may mean that the claimants cannot commence or continue proceedings until those pre-action require - ments have been complied with. Furthermore, non- compliance may result in the court awarding costs
reasonably incurred because of the non-compliance against the non-complying party once proceedings are commenced. 2.6 Rules for Preservation of Evidence in Product Liability Claims The general rule is that documents must be preserved as soon as there is a reasonable anticipation or rea - sonable contemplation of litigation. The definitions of “document” are extremely broad and extend to information in many forms and to the product itself. The rule first existed under common law, where it is expressed as an offence involving perverting the course of justice. In most Australian jurisdictions, the common law offence has now been supplemented or replaced by statute – examples of which follow. • The Crimes Act 1914 (Cth) contains an offence for the destruction of “a book, document or thing of any kind” that “is, or may be, required in evidence in a [federal] judicial proceeding”, provided the intention is to prevent the book, document or thing from being used in evidence (Section 39). • The Crimes Act 1958 (Vic) contains an offence for the intentional destruction/concealment of a “document or other thing of any kind” that “is, or is reasonably likely to be, required in evidence in a legal proceeding” (Section 254). The relevant intention here is the “intention of preventing it from being used in evidence in a legal proceeding” – this offence applies to a legal proceeding that is in progress or that is to be, or may be, commenced in the future. Depending upon the jurisdiction, penalties include up to five years’ imprisonment, significant fines and the ability of the court to strike out affected parts of the defence of a contravening party. Lawyers who advise their clients to act contrary to the obligations in legis - lation may also face sanctions and penalties. From a procedural perspective, if documents that were relevant to litigation are no longer available because of steps taken by a party who was aware of (or should have been aware of) actual or likely proceedings, this may result in that party’s claim or defence being struck out, to the extent that the documents would have been relevant to that claim. It may also result
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