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Defending against Product Liability Down Under

In this second collaborative blog post with the Australia-based law firm DibbsBarker, we take a look at the litigation process for product liability claims in Australia and how in some ways it differs from the process in the United States.

As detailed in the previous blog post, “Dealing with Product Liability Down Under,” there are a number of product liability causes of actions that arise in Australian product liability lawsuits. Those are negligence, breach of contract and failure to comply with the Australian Consumer Law legislation.

Civil litigation in Australia for personal injury cases can be conducted as pre-litigation (e.g., pre-court proceedings), which can result in litigation if the claim is not resolved during the pre-court process. In other jurisdictions, cases only originate by way a of litigated claim.

Pre-court proceedings
In most Australian jurisdictions (with the exception of the State of Queensland), parties are not required to follow any legislated pre-court proceedings prior to being allowed to enter into litigation.

If a claim arises in Queensland, for example, pre-court proceedings involve a claimant (the injured party) issuing a claim document that sets out the facts, allegations and damages sought. The parties then can obtain expert factual and/or medical evidence, exchange this evidence and then attempt to resolve the matter, usually at a settlement conference (where the parties hold discussions in an attempt to settle the matter without prejudice) or by way of mediation. If a claim does not resolve during this pre-court process, then the claim proceeds to litigation.

In the vast majority of cases, product liability litigation in Australia will generally run in the following manner.


  • Claims are generally commenced by a plaintiff with a “pleading,” usually a statement of claim document that outlines the facts of the claim, the cause of action and allegations, and the remedy sought.
  • The defendant then enters an appearance in the relevant court where the statement of claim document was filed and also files a defense.
  • Other documents that may be filed include reply statements, cross-claims, statements outlining the loss and damage suffered in personal injury claims, requests for particulars and interrogatories.

Evidence and Discovery

  • Subpoenas can be issued by each party for the production of evidence for the purposes of discovery (and for the purposes of a person giving oral evidence at a trial).
  • The engaging of experts and the rules governing discovery of expert evidence varies depending on jurisdiction. In some jurisdictions, draft expert reports and even file notes of conversations with experts need to be exchanged with the other parties. In other circumstances, joint expert reports may be ordered that require all experts engaged in a particular matter to appear at a conclave and provide one report that details areas of agreement and areas of dispute among the expert opinions. Experts also may be required to provide oral evidence concurrently before a court, in a practice that has been informally dubbed “hot-tubbing.”
  • Written affidavits of witnesses (expert or lay) also may be exchanged before a trial depending on the jurisdiction, and if affidavits are served, they can later be tendered in court as evidence in chief and witnesses can then be cross-examined. In jurisdictions where no affidavits are filed, evidence is given orally by a witness at trial.
  • Unlike in the United States, there is no deposition process in Australia during discovery; however, if someone is dying, a deposition may be taken from that person as their evidence.

Inspection of Physical Evidence

  • All parties to a claim are entitled to inspect the subject product. This is usually undertaken with representatives of all parties in attendance. At inspections, parties can take photographs and video evidence.
  • If a party wishes to test the subject product, this can be agreed to between the parties or ordered by the court. If it is non-destructive, it will in all likelihood be ordered by the court. If it is destructive, the court may seek to have certain conditions imposed depending on the circumstances.
  • If physical evidence was previously in possession of a party but is later lost or destroyed, a claim can still proceed but will cause difficulties for a plaintiff attempting to prove a defect or issue with the product.

Alternative Dispute Resolution

Parties are generally encouraged to participate in alternative dispute resolution (by way of either informal discussion or formal mediation) prior to the commencement of trial. Mediations can be arranged at any time during a claim proceeding or can be ordered by the court to be held by a certain date in the future at any directions hearings held during the matter.

Litigation Schedule

In some jurisdictions, parties are required to follow an agreed or court-ordered timetable that details the steps to be undertaken and time frames to ensure that litigation proceeds in a timely manner. In other jurisdictions, directions can specifically be sought from the court.

Trial Process

  • In the great majority of product liability litigation, cases are heard before a judge without a jury. In many jurisdictions, particularly in personal injury cases, juries are not available.
  • At the commencement of trial, opening submissions are made by the plaintiff and then the plaintiff presents its evidence and witnesses; cross examination is followed by the defendant’s witnesses, including expert evidence.
  • Once all of the evidence is heard, the parties make oral closing submissions, which can sometimes be accompanied by detailed written submissions for consideration of the court.
  • Judgment is delivered at a later date


  • As a general rule, the losing party pays the successful party’s costs.
  • When a plaintiff is successful with their action, damages awarded are always “plus costs.”
  • The amount of costs will vary depending on the jurisdiction, the outcome of the trial and whether any formal offers of settlement have been made.

As you can see, Australian product liability cases are handled differently from how they are litigated in the United States. We hope this blog post will be helpful to those risk managers who are unfamiliar with the process in Australia. However, as is the case with U.S. product liability litigation, private settlements are the predominant method for resolving these disputes. In our next post, we will detail the laws in Australia that govern the manner in which settlement agreements are implemented and executed. As always, we welcome the questions and comments of our readers.

This blog post was published originally on June 20, 2016.