AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose and Caitlin Sheehy, Clayton Utz
disagreement, as well as the reasons for that disa - greement. 2.9 Burden of Proof in Product Liability Cases Under the law of contract, the law of negligence and the majority of provisions in the Australian Consumer Law, the claimant bears the onus of proving the ele - ments of their claim on the balance of probabilities. 2.10 Courts in Which Product Liability Claims Are Brought Claimants may bring product liability claims in either the federal court or state or territory courts. Each state and territory has either two or three levels of court: a magistrates’ or local court, a district or county court and a Supreme Court. The federal court has the fed - eral circuit court, the federal court, and the full court of the federal court. There are jurisdictional limits for lower courts, which vary from state to state (they are usually in the range of AUD750,000 to AUD1.25 million for the district courts). The Supreme Court of each state and territory has unlimited jurisdiction (subject only to other laws that may separately restrict the quantum of damages payable for certain types of claims, including personal injury claims). Most product liability litigation of any complexity will be brought in either a state or territory Supreme Court or the federal court. Civil juries are very rare in Australia, so in practice most product liability cases are heard by a judge alone. The usual practice in Australia is for a single judge to sit at first instance and a panel of three or more judges at appellate level. All civil litigation in Australia is adversarial in nature. Individual parties present their evidence to the judge and make submissions on the law. After consideration of all the materials presented, the judge makes find - ings of fact and law. 2.11 Appeal Mechanisms for Product Liability Claims In virtually all jurisdictions, unsuccessful parties have the right to appeal a judgment of a trial judge. The applicable appeal procedure is dictated by the juris - diction in which the trial took place. In the case of
interlocutory judgments, it is generally necessary for the unsuccessful party to apply for leave to appeal (from the original deciding judge). Appeals are typi - cally raised on a particular question of law, but it is not unusual for some of the evidence presented at trial to be reviewed in the course of an appeal. Parties who are unsuccessful on appeal to the Full Court of the Federal Court or a state or territory court of appeal may seek leave to appeal to the High Court, Australia’s highest appellate court. There is no auto - matic right to have an appeal heard by the High Court. The party wanting to appeal must convince the High Court in a “special leave” hearing that the issues in dispute are sufficiently important or that the potential for miscarriage of justice is sufficiently great to justify the appeal being heard by the High Court. Once a matter has been determined by the High Court, there is no further appeal and the decision is binding on all other Australian courts. Appeals in most Australian courts are by way of rehearing, meaning that the court has the power to consider all of the evidence afresh. However, no new evidence may be put before the appellate court unless that court grants leave. It is extremely rare for such leave to be granted in civil matters. Timeframes In the Full Court of the Federal Court, appeals from final judgments must be filed and served within 28 days of the trial decision. Timeframes for state and territory courts of appeal vary based on jurisdiction but are all of a similar order. 2.12 Defences to Product Liability Claims Negligence The following defences may be available to a claim in negligence:
• voluntary assumption of risk; • contributory negligence; and • the learned intermediary defence.
Voluntary assumption of risk is when a plaintiff con - sciously decides to take responsibility for injury, loss or damage. In establishing this defence, the defend - ant must show that the plaintiff properly perceived
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