AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose, Caitlin Sheehy and Sarah Aljassim, Clayton Utz
Most courts also have rules that prohibit the evi - dence 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 concur - rently – ie, the experts for all parties in the same discipline will be sworn in together to give their evidence. It is also usual 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 disa - greement, 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 elements of their claim on the bal - ance 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 federal 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 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 complex - ity will be brought in either a state or territory Supreme Court or the federal court. Civil juries are very rare in Australia, so in prac - tice 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 present - ed, the judge makes findings 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 dic - tated by the jurisdiction 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 typically 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 ter- ritory court of appeal may seek leave to appeal to the High Court, Australia’s highest appellate court. There is no automatic right to have an appeal heard by the High Court. The party want - ing to appeal must convince the High Court in “special leave” hearing that the issues in dispute are sufficiently important or that the potential for
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