AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose, Caitlin Sheehy and Sarah Aljassim, Clayton Utz
2.4 Jurisdictional Requirements for Product Liability Claims Australia has both a federal court system and a hierarchy of courts in each of the states and territories. The High Court of Australia deals with constitutional disputes and appeals (with leave) from either the full federal court or a state or territory court of appeal. Both federal and state courts may exercise jurisdiction in respect of the causes of action under the Australian Consumer Law outlined in 2.1 Product Liability Causes of Action and Sources of Law . In so far as a claim relates to defendants and conduct within Aus - tralia, proceedings may be commenced in any court of competent jurisdiction, regardless of where the conduct occurred. However, there is cross-vesting legislation that provides that the proceedings may be moved from one jurisdic - tion to another if they are in an inappropriate forum. Foreign Corporations The Australian Consumer Law has long-arm jurisdiction and also regulates the conduct of foreign corporations that are “carrying on busi- ness” in Australia. In order for an Australian court to validly exercise jurisdiction over a foreign cor - poration, that corporation must be validly served with initiating process. Some courts require leave to be obtained to serve overseas corporations, and for the court to be satisfied that the claim has a sufficient nexus to Australia to justify it being brought in Australia. In other courts, there is no requirement to seek leave to serve an over - seas corporation when certain claims (such as those under the Australian Consumer Law) are being made. The court rules in each jurisdiction set out a list of circumstances in which service outside Australia may be permitted. One such circumstance is that the claim is seeking recov - ery of damage suffered wholly or partly in Aus -
tralia; this is often sufficient in product liability claims to justify service on a foreign defendant. Australia is party to the Hague Convention on the Service Abroad of Judicial and Extrajudi - cial Documents in Civil or Commercial Matters 1965, so – if authorised – service may be effect - ed through Hague Convention means on other treaty parties. 2.5 Pre-Action Procedures and Requirements for Product Liability Claims Under Federal Legislation There are mandatory steps that must be taken at a federal level and in some states and territo- ries in Australia before formal proceedings can be commenced in relation to product liability claims. Federal legislation obliges parties to take “genuine steps” to resolve a dispute before com - mencing proceedings in the federal 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 undertaken 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 particulars 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 whether 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
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