AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose, Caitlin Sheehy and Sarah Aljassim, Clayton Utz
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 com - menced outline the applicable requirements with regard to discovery. Although these rules are similar across the various Australian juris - dictions, there are nuances between the courts. To assist the parties, the Australian courts have published practice notes and directions that provide further guidance, such as in relation to the court’s expectations concerning the par - ties’ approach to discovery. Use of technology is actively encouraged by all courts in discov - ery and many provide suggested protocols for exchanging documents with technological assistance. Generally speaking, the practice of Australian courts is to try to actively manage the discov - ery 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 discovery 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 resolu - tion of proceedings as quickly and efficiently as possible. Courts will generally not grant discov - ery requests that are expansive or may be “fish - ing” expeditions. The additional guidance pro - vided by Australian courts via practice notes and directions emphasises the courts’ expectation that parties to proceedings will take all the steps necessary to reduce the burden of discovery. Subpoenas may also be used to obtain docu - ments that are relevant to issues raised in a pro -
ceeding 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 demonstrate to the court that the sub - poena has a legitimate forensic purpose. A sub - poenaed entity will also have an opportunity to object to the scope or timeframe of a subpoena. 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 questions 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 matters 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 addi - tion 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 pur - pose of preparing a report or giving evidence should ‒ at the earliest opportunity ‒ be provided with a copy of the Harmonised Expert Witness 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 practice note.
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