AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose, Caitlin Sheehy and Sarah Aljassim, Clayton Utz
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 pro - cedure 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 settlement conference before formal proceedings are commenced. South Australia also has pre-action procedures that the parties are required to comply with before commencing formal proceedings in rela - tion to most claims. Consequences of Non-Compliance Non-compliance with the various pre-action procedures may mean that the claimants can - not commence or continue proceedings until those pre-action requirements have been com - plied 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 pre - served as soon as there is a reasonable antici - pation or reasonable contemplation of litiga - tion. 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 jus - tice. In most Australian jurisdictions, the com - mon 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, docu- ment or thing of any kind” that “is, or may be, required in evidence in a [federal] judicial pro- ceeding” , 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 “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, signifi - cant 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 legislation may also face sanction 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 in adverse inferences being drawn against the party about the content of the documents, which
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