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Australia - New Evidence Act Affects Foreign Intellectual Property Owners

The Evidence Act 1995, which went into effect on April 18, 1995, simplifies the presentation of evidence by foreign owners of intellectual property rights in Federal court proceedings relating to such rights. The principal features of the Act are summarized below.

1) Evidence of documents can be offered by producing copies, transcripts and printouts.

2) Evidence on the contents of voluminous and complex documents may be submitted in summary form under certain circumstances.

3) The original document rule has been abolished.

4) New exceptions to the hearsay evidence rule have been introduced.

5) Evidence of settlement negotiations may only be presented under the specific circumstances set forth in the Act.

6) The law governing legal professional privilege has been amended. A communication will be considered privileged if its dominant purpose was to provide legal advice or legal services relating to a relevant legal proceeding, including a foreign proceeding. In this connection, it should be noted that, in Australia, a communication between a patent attorney and his client is privileged to the same extent as a communication between a solicitor and his client.

7) The ability to submit evidence of foreign statutes, proclamations, treaties and law reports and to produce Australian government records has been simplified.

8) Although there had previously been some uncertainty on the issue, it is now quite clear under the Act that corporations may not rely on the privilege against self-incrimination.

9) The Act will only apply to proceedings heard after the commencement of the Act.


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