AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose and Caitlin Sheehy, Clayton Utz
2.8 Rules for Expert Evidence in Product Liability Cases Expert evidence is typically an important part of the evidence in product liability cases, in respect of ques - tions of both liability and quantum. This is because they often involve complex, technical questions regarding products, standards, and the scientific state of the art. Experts must be independent and they have a duty to assist the court rather than to advocate on behalf of the party that calls them. Powers do exist for courts to appoint their own experts or refer particular mat - ters to referees. Increasingly, the use of these powers is being explored by courts in Australia in complex product liability cases. The duties of expert witnesses are usually set out in the court rules or practice notes (in addition to the common law). By way of example, the Federal Court of Australia’s Expert Evidence Practice Note (“GPN- EXPT”) states that any expert witness retained by a party for the purpose of preparing a report or giving evidence should – at the earliest opportunity – be provided with a copy of the Harmonised Expert Wit - ness Code of Conduct Practice Note and all relevant information (whether helpful or harmful to that party’s case) so as to enable them to prepare a report of a truly independent nature. Experts must also set out the basis for their opinions and acknowledge that they have complied with their obligations under the prac - tice note. Most courts also have rules that prohibit the evidence of any expert from being relied on unless the expert has served a written report well before the date for trial. Co-Ordination of Experts In addition, product liability cases often involve a court-ordered process for the evidence of experts in the same field to be given concurrently – ie, the experts for all parties in the same discipline will be sworn in together to give their evidence. It is also usu - al for a conferral process to be ordered in advance of the experts giving evidence so that they can produce a joint report that details the areas of agreement and
in adverse inferences being drawn against the party about the content of the documents, which can then be used as a basis to make findings of fact against the non-producing party. 2.7 Rules for Disclosure of Documents in Product Liability Cases The rules of the court in which a claim is commenced outline the applicable requirements with regard to dis - covery. Although these rules are similar across the various Australian jurisdictions, there are nuances between the courts. To assist the parties, the Austral - ian courts have published practice notes and direc - tions that provide further guidance, such as in relation to the court’s expectations concerning the parties’ approach to discovery. Use of technology is actively encouraged by all courts in discovery, and many pro - vide suggested protocols for exchanging documents with technological assistance. Generally speaking, the practice of Australian courts is to try to actively manage the discovery process so as to keep the level of discovery proportionate to the complexity of the issues in proceedings and the amount that is at stake. In personal injury proceedings, documentary discov - ery is only available with the court’s leave in most courts. Before making discovery orders, a court must be satisfied that the discovery sought is necessary and will assist the resolution of proceedings as quickly and efficiently as possible. Courts will generally not grant discovery requests that are expansive or may be “fishing” expeditions. The additional guidance provided by Australian courts via practice notes and directions emphasises the courts’ expectation that parties to proceedings will take all the steps neces - sary to reduce the burden of discovery. Subpoenas may also be used to obtain documents that are relevant to issues raised in a proceeding but that are held by a third party. As with discovery, in many courts a party must approach the court to request leave to issue a subpoena and must demon - strate to the court that the subpoena has a legitimate forensic purpose. A subpoenaed entity will also have an opportunity to object to the scope or timeframe of a subpoena.
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