Litigation 2025 Comparisons

The legal framework in Australia is adversarial, whereby opposing parties present their arguments before an impartial adjudicator, either a court or tribunal, for resolution. The adjudicator considers both sides before applying the relevant law to the dispute at hand. As a common law jurisdiction, Australian courts adhere to the doctrine of precedent, meaning lower courts must follow the decisions of higher courts. This principle constrains judicial decisions but still allows lower courts to evolve legal principles not yet addressed by higher courts. Though not binding, decisions from other common law nations, such as the United Kingdom, serve as comparative legal resources. Litigation typically involves oral arguments presented before a court or tribunal, with the preference for oral testimony grounded in the common law principle of allowing parties to hear the case against them and enabling the court to assess witness credibility. Written submissions are also commonly filed and served before hearings.

Australia comprises six states (Victoria, New South Wales, Queensland, South Australia, Tasmania, and Western Australia) and two territories (Australian Capital Territory and Northern Territory), with both a federal court system and separate state and territory court hierarchies. The High Court of Australia, the apex court, covers original jurisdiction in specified areas, including constitutional matters and inter-state disputes, and appellate jurisdiction for lower court appeals. The Federal Court’s jurisdiction spans over 150 Commonwealth Acts, covering tax, corporate law, intellectual property, competition law, consumer law, employment relations, native title, and bankruptcy, and includes appellate functions. The Federal Circuit Court handles less complex matters within the same subject areas and less complex family law disputes. Each state and territory’s Supreme Court serves as the superior court, handling both original and appellate cases with unlimited jurisdiction over civil and criminal matters. Except for Tasmania, states also have mid-tier courts called district or county courts, and lower-level courts known as magistrates or local courts, with jurisdictional limits. Specialist lists within these courts address specific areas of law, and numerous specialist Commonwealth, state, and territory courts and tribunals oversee specific subject matters.

The principle of open justice mandates that court and tribunal hearings be accessible to the public to ensure transparency. However, courts can restrict public access in certain scenarios, such as suppressing evidence publication, concealing parties’ or witnesses’ identities, or excluding the public to prevent prejudice to justice or national security. Public access to court documents varies, with non-parties generally able to inspect certain documents in Federal Court proceedings unless confidentiality orders apply. Non-parties may apply for permission to inspect documents not typically available for public viewing.

Only practitioners admitted to practice in the relevant state or federal jurisdiction may appear in court or make submissions without specific permission.

In Australia, third-party litigation funding is allowed with certain restrictions, requiring funders to manage conflicts between their interests, the lawyers, and the funded party. Historically, litigation funding faced few restrictions and has grown significantly, becoming integral to Australian legal practice, notably in class actions. In 2009, the Federal Court recognised litigation funding schemes as managed investment schemes under the Corporations Act. Amendments in 2020 mandated that litigation funding scheme operators hold an Australian financial services licence (AFSL) and comply with managed investment scheme regulations. However, the 2022 Federal Court ruling in LCM Funding Pty Ltd v Stanwell Corporation Limited exempted litigation funding schemes from being managed investment schemes. As of November 2023, the Federal Parliament is consulting on legislation to amend the Corporations Regulations, explicitly exempting litigation funding schemes from managed investment scheme, AFSL, product disclosure, and anti-hawking provisions.

No restrictions exist on the types of cases that can be funded by third parties, though recent trends show funders typically backing shareholder and investor claims, mass torts, and consumer claims due to potential high recoveries. Outside class actions, third-party funding is also utilised in insolvency and high-value commercial litigation.

Though third-party funding is primarily for plaintiffs due to its entrepreneurial nature, it can be provided to defendants in rare cases, often driven by political or ideological motivations.

There are no limitations on the funding amount a third party can provide. The funding typically depends on estimated legal costs, the class size in class actions, and the claim’s complexity and merits.

The specific costs covered by third-party funding depend on the litigation type and the funding agreement. Generally, funders advance legal costs and related expenses and may cover project management and administration costs in class actions. Funders often indemnify the representative applicant and provide security for potential adverse costs.

Until recently, contingency fees were generally prohibited for legal practitioners in Australia. However, recent developments have permitted contingency fees in the case of class actions filed in the Supreme Court of Victoria and in the Federal Court of Australia. Elsewhere, solicitors cannot charge fees based on settlement or judgment amounts but may agree to be paid only if the client wins, including a regulated premium or “uplift” payment.

No time limits regulate when litigants can obtain third-party funding.

Australia lacks a specific requirement for pre-action letters before initiating civil proceedings, though certain jurisdictions mandate formalities to promote quick, inexpensive, and efficient dispute resolution. For instance, the Federal Court requires a “genuine steps statement” under the Civil Dispute Resolution Act 2011, outlining efforts to resolve the dispute.

Each jurisdiction in Australia has legislation limiting the period within which civil claims can be issued, typically starting from the cause of action date. Limitations vary, with most contracts and tort actions having a six-year limitation, except in the Northern Territory, where tort actions have a three-year limit. Australian courts can extend or postpone the limitation period in specific circumstances, such as disability, acknowledgement by the defendant, or fraud.

Australian courts have jurisdiction over foreign defendants if proper documents are filed and served. Foreign defendants can challenge jurisdiction, with courts considering factors like the connection to the jurisdiction and potential inconvenience to the defendant.

Civil proceedings in Australia typically begin by filing a writ or originating application and, depending on the court’s rules and the claim’s subject matter, accompanied by a claim or statement of claim. Amendments to filed documents require court permission or the other party’s consent.

Service requirements vary by document type and party, with court rules detailing the appropriate methods. Generally, writs or originating applications require personal service, while ordinary service applies to other documents. Some courts allow service by email if authorised.

Defendants must file a notice of appearance within a specified time. Failure to do so allows plaintiffs to seek default judgment without further notice. Procedures vary by court and claim type.

Class actions can be initiated in the Federal Court and in the Supreme Courts of New South Wales, Victoria, Queensland and Western Australia. These regimes require claims from seven or more individuals against the same defendant, arising from similar circumstances, and sharing a common legal or factual issue. Australian courts broadly interpret these requirements, and class actions proceed under an “opt-out” regime.

Australian lawyers must disclose costs and billing information to clients, including estimates and calculation methods, and notify clients of significant changes. These obligations vary by jurisdiction.

Parties can bring interim or interlocutory applications to preserve rights or address pre-trial formalities. Interim orders, such as freezing or search orders, may be sought urgently, sometimes on an ex parte basis.

Parties can request early judgment on specific issues. Courts can strike out cases lacking reasonable cause of action or defence, causing prejudice, or abusing the court process, often allowing amendments to the case.

Summary judgment or a strike-out application may be sought if a claim lacks merit, with defendants more likely to seek an order that the proceedings be struck out. Plaintiffs must show the defence is untenable to obtain summary judgment.

Third parties can join a proceeding if necessary to resolve all matters in dispute, such as contribution claims or relief similar to the plaintiff’s. Joinder must be just and convenient.

Defendants can request security for costs from plaintiffs, with courts considering factors like the plaintiff’s financial position and the proceedings’ genuineness and prospects.

Courts can order unsuccessful interim application parties to pay the other’s costs, typically a portion of actual costs. Costs orders are usually settled after final judgment.

Application timeframes vary by complexity, case circumstances, and court capacity. Urgent applications require demonstrating time sensitivity.

Discovery in Australia is limited to documents, not witness testimony. Parties access relevant documents in the other’s possession, custody, or control, subject to legal privilege. Courts seek to limit discovery scope, encouraging practical strategies like search terms for electronic documents.

Discovery from third parties requires court orders, with applicants demonstrating the third party’s possession of relevant documents. Applications must be personally served with supporting affidavits.

See 5.1 Discovery and Civil Cases.

Discovery mechanisms are not typically bypassed.

Legal professional privilege applies to confidential communications or documents for legal advice or litigation purposes. In-house counsel must demonstrate independence for privilege claims.

See 5.5 Legal Privilege.

There is various injunctive relief available depending on the circumstances.

Permanent Injunction

A permanent injunction is a lasting resolution of the parties’ rights and remains in effect indefinitely, unless limited by the terms of the order or dissolved by a subsequent court order. A court will grant a permanent injunction only after making a final determination at trial. The applicant must prove the elements of the cause of action and the likelihood of ongoing or repeated harm.

Interlocutory Injunction

An interlocutory injunction usually sought at the outset of proceedings to preserve the position until the parties’ rights are determined at trial. It typically governs a person’s conduct until the trial or a further court order.

Interim Injunction

An interim injunction is applicable to conduct until a specific date or the return date of an application for an interlocutory injunction. The order typically lasts for several days and is issued in urgent situations when the court determines that the applicant would experience irreparable harm without the injunction. The application for this order is made without notifying the affected person. The applicant must provide all relevant information and certain undertakings to the court.

Other injunctions

There are also injunctions that seek to preserve property and documents relevant to the dispute. A freezing injunction prevents a person from dissipating their assets until the trial of a proceeding. A search order requires a person to allow the applicant to search for, copy and collect for safekeeping specific documents. The applicant must demonstrate that there is a real possibility that the defendant may destroy such material.

Urgent injunctions can be quickly obtained if requirements are met, especially for ex parte applications. Urgency should be highlighted to the judge.

Ex parte injunctive relief is available in urgent situations. Applicants must disclose all material facts, including potential respondent evidence. Material non-disclosure can result in the injunction being set aside.

Applicants must undertake to compensate for any losses caused by interlocutory injunctions. This applies to ex parte injunctions, covering only damages from the injunction proceedings.

Freezing orders can preserve Australian assets for foreign proceedings under the Foreign Judgments Act 1991. Applicants must meet Supreme Court Rules requirements.

Injunctions can bind third parties, who must comply or risk contempt of court. Courts distinguish between innocent third parties and those collaborating with respondents.

Non-compliance with injunctions can lead to contempt charges, fines, sequestration, or imprisonment, with proof beyond reasonable doubt required.

Civil trials in Australia involve oral arguments, supplemented by written submissions. Plaintiffs begin with opening statements, followed by evidence presentation and witness cross-examination by defendants. Defendants then present their case, followed by closing submissions. Defendants may also submit a “no case submission” if plaintiffs fail to establish a prima facie case.

Before trials, case management hearings set timetables and address interlocutory disputes, often through written affidavits. Cross-examination of witnesses is rare.

Jury trials are rare but available for some civil cases, like defamation. South Australia and the Australian Capital Territory have abolished civil jury trials.

Evidence is admissible if it could affect the probability assessment of a fact in issue. Hearsay evidence is generally excluded, though exceptions exist. Privileged and opinion evidence are also inadmissible, with expert opinion evidence being an exception.

Expert witnesses provide reports and testify at trials. Experts may confer before trials to reach agreement and submit joint reports. Courts can appoint referees for complex technical matters.

Public access to court documents and transcripts varies by court, often requiring application and fees.

Judges in Australia play a non-interventionist role, focusing on ensuring fair trials and clarifying legal arguments. Judgment may be immediate or reserved.

Trial duration varies by case complexity and evidence volume. Civil proceedings are formal and lengthy, with urgent matters expedited by courts.       

Settlements usually do not require court approval, except in class actions. Parties provide draft orders to dismiss settled cases. Unilateral settlements can be filed without defendant consent.

Settlement terms can remain confidential if parties agree, though dismissed case records are public.

Settlement agreements are enforceable as contracts. Court orders based on settlements prevent reopening matters.

Settlement agreements can be set aside for reasons like mistake or misrepresentation, following general contract law principles.

Monetary damages are the most common award, compensating for losses due to unlawful conduct. Other remedies include injunctions, restitution, profit accounting, and declarations.

Damages types and calculations depend on the cause of action, covering loss of opportunity, indirect loss, restitution, and account of profit. Punitive damages are rare and conservative.

Successful parties can recover pre- and post-judgment interest, with rates varying by jurisdiction.

Judgment enforcement options include writs for property sale, wage garnishment, and bankruptcy or winding-up orders.

Foreign judgments can be enforced in Australia by registration under the Foreign Judgments Act 1991 or through common law liquidated claims.

Generally speaking, the unsuccessful party has a right of appeal in relation to final orders made by a court. Most courts also permit a party to seek leave to appeal from an unfavourable interlocutory or interim order.

Any decision by a trial judge can generally be appealed to a higher court. State-level decisions may go to the Court of Appeal or the Full Court of the Supreme Court in that state or territory. Federal Court decisions are appealed to the Full Federal Court, which comprises three judges. The ultimate appeal court in Australia is the High Court, but special leave is required, granted only in rare cases involving new or significant legal issues. There is no appeal beyond the final determination of the High Court.

See 10.1 Levels of Appeal or Review to a Litigation.

The timeframe for filing an appeal is specified by the rules of each court and jurisdiction. Typically, an appeal must be submitted within 28 days from the date the decision was made, though this period can vary depending on the nature of the decision. In certain cases, parties may request extensions of this timeframe, or file preliminary appeals until a final decision is reached.

Appellate courts can uphold, dismiss, or vary lower court orders.

Courts can impose conditions on granting an appeal. Conditions include requiring the appellant to provide security for costs, giving undertakings such as refraining from specific actions during the appeal or taking steps to expedite the appeal, or complying with interim orders. Courts may impose deadlines for procedural steps, limit the appeal to specific issues, or require the appellant to pay outstanding costs from earlier proceedings. A stay of execution may be granted to pause enforcement of the original judgment, ensuring the appeal is not rendered futile. In some cases, leave to appeal may be required, with conditions set on how the appeal should proceed.

Following an appeal, the appeal court can make orders to uphold, dismiss or vary the orders of the court below.

The general rule is that the unsuccessful party pays the successful party’s costs. Costs assessors determine fair and reasonable costs.

Courts consider party conduct and conventions when awarding costs, with discretion to apportion costs.

Interest on costs varies by jurisdiction, typically accruing from the judgment date or costs order date.

ADR is common in Australia, offering cost-effective dispute resolution. Mediation is particularly popular in commercial disputes.

Some jurisdictions require ADR before filing claims in court. Courts can refer cases to ADR at any stage, with non-attendance penalties.

National and state institutions promote and offer ADR, with high industry collaboration. Key organisations include the Mediator Standards Board, Australian Disputes Centre, and Resolution Institute.

Australia’s arbitration regimes are based on international conventions, with federal law governing international arbitrations and state and territory laws governing domestic arbitrations.

Criminal law matters and regulatory enforcement proceedings cannot be referred to arbitration.

A court can refuse to enforce an award in certain limited situations, such as when there are significant irregularities or breaches of natural justice in the arbitration process, or if enforcing the award would violate public policy.

No response has been provided in this jurisdiction.

There are no proposals for dispute resolution reform.

In Australia, the top three growth areas for commercial disputes include:

• Energy Sector Disputes: The transition to renewable energy has led to a surge in disputes related to the construction, connection, and operation of renewable energy projects. Challenges such as greenwashing claims, misleading statements about energy transition efforts, and actions seeking to prevent the commencement of new fossil fuel or renewable energy projects are becoming more prevalent. Additionally, the emergence of battery projects and other technological advancements in energy storage and distribution are contributing to the complexity and volume of disputes in this area.
• Competition and Consumer Law Disputes: Recent reforms to Australia’s merger regulations aim to address concerns about reduced competition in sectors such as retail, travel, and banking. 
• Cybersecurity and Data Privacy Disputes: The rise in cyber threats and data breaches has heightened the focus on cybersecurity and data privacy. Regulatory bodies are increasingly scrutinising companies’ data protection practices, leading to a rise in disputes related to data breaches, privacy violations, and compliance with cybersecurity regulations. This trend is expected to continue as digital transformation accelerates across industries.