Commercial disputes in Australia are primarily resolved using informal negotiation, ADR, and litigation.

Informal Negotiation

Informal negotiation may occur at any stage of the dispute.  Engaging in informal negotiation early can avoid escalation to formal litigation and incurring unnecessary costs.

ADR

ADR may be entered voluntarily or by court order. The most common forms of ADR in large commercial disputes are mediation, arbitration and expert determination.

Litigation

The Australian court system is based on the common law system and is adversarial by nature.

Parties in large commercial disputes rely on either:

• court-based litigation; and/or
• ADR processes.

The litigation process requires each party to appear in court or a tribunal and to present evidence and arguments.

ADR is commonly used by parties to a dispute. It forms part of court procedures both before and during court proceedings. For example, in civil proceedings in the Federal Court, parties must show they have taken genuine steps to resolve the dispute before commencing proceedings.

Examples of ADR processes used in large commercial disputes include:

• Mediation – an independent mediator assists parties by providing a structured negotiation to facilitate a voluntary, mutually acceptable agreement based on the facts and issues in dispute and the parties’ respective positions.
• Expert appraisal or neutral evaluation – a neutral third-party expert investigates the dispute and provides advice and opinion on the facts and potential outcome.
• Expert determination – an independent expert is engaged to investigate an issue in dispute between the parties (typically involving specialised technical knowledge).
• Arbitration – a quasi-judicial process in which parties engage an impartial arbitrator to hear arguments and evidence. The arbitrator’s decision is legally binding and can only be appealed on procedural grounds.

ADR clauses are common in commercial contracts. Typically, businesses in the construction, mining and financial services industries rely on ADR, including arbitration, to resolve disputes due to the confidentiality of the process, perceived lower costs and finality compared to traditional litigation (ie no appeal rights).

Data Privacy and Cybersecurity Litigation and Legal Professional Privilege (LPP)

We continue to see a rise in regulators pursuing enforcement proceedings against companies affected by cybersecurity or data breaches.

The Federal Court recently imposed the first civil penalty under the Privacy Act 1988 (Cth) (Privacy Act). The decision is a significant milestone in the evolution of Australia’s privacy law and marks a turning point for future enforcement action under the Privacy Act.

Relatedly, as companies continue to be exposed to cybersecurity and data privacy risks, we expect the courts to oversee greater scrutiny over broad privilege claims made over third-party investigative reports commissioned by companies in response to a cybersecurity or data breach incident, particularly those reports commissioned for multiple purposes. Recently, the Full Court of the Federal Court confirmed that privilege is to be assessed objectively based on the dominant purpose of the communication; namely the ruling, prevailing or most influential purpose for which a communication was created.

Cryptocurrency and Digital Assets

Regulatory enforcement in the digital assets space is increasing. The High Court recently granted ASIC special leave to appeal a decision of the Federal Court which held that a cryptocurrency lending product was not a financial product. The decision will provide much needed authoritative guidance on the definition of financial products for digital asset businesses and is likely to shape the future of ASIC’s regulatory enforcement action.

ESG Disputes

We expect greenwashing (misleading environmental, social, and governance claims) enforcement action to continue to intensify with regulators, noting ASIC and the ACCC have imposed a combined sum of AUD42 million in penalties up to and including early 2026.

Limitation periods for commencing proceedings vary by cause of action and jurisdiction. Each state and territory in Australia has enacted legislation prescribing the applicable periods. Generally, time runs from the date of the alleged contravention.

Examples of limitation periods include:

• Contract – six years from the alleged breach (three years in the Northern Territory).
• Deed – 12 years from the alleged breach (15 years in Victoria and South Australia).
• Tort – actions in tort (excluding personal injury and defamation) must generally be commenced within six years of accrual, though this varies between jurisdictions. Defamation actions must be commenced within one year. Personal injury actions must generally be commenced within three years of discoverability or 12 years from the date of injury, whichever expires first.
• Breach of trust – six years from the date of breach (three years in the Northern Territory; no specific limitation in South Australia).
• Possession of land – 12 years from accrual (15 years in Victoria and South Australia).

Disputes in Australia are heard by federal, state, and territory courts.

High Court of Australia

The High Court is Australia’s ultimate appellate court with jurisdiction to hear appeals from federal, state and territory courts. It has original jurisdiction in Commonwealth matters, such as disputes between the Commonwealth and states.

Federal Court of Australia

The Federal Court has original jurisdiction in matters arising under Commonwealth law. It typically hears corporations law, competition, intellectual property, constitutional and administrative law disputes, along with federal tax and migration matters.

State Courts and Tribunals

Each state and territory has a lower court (Local Court or Magistrates Court), an intermediary court (District Court or County Court) and a superior court, known as the Supreme Court.

The Supreme Courts of each state and territory have inherent jurisdiction in respect of all disputes arising under state law, including equity, contract, tort, employment, and criminal matters. In limited circumstances, state Supreme Courts can exercise federal jurisdiction.

There are specialist courts and tribunals in some states to deal with certain specialised subject matters (for example, the New South Wales Land and Environment Court).

Pre-action requirements vary across Australian jurisdictions with each first instance state and territory court, as well as the Federal Court of Australia, prescribing different obligations. Any pre-action requirements are generally set out in legislation and the relevant court's procedural rules or practice notes.

Before commencing certain proceedings in the Federal Court and Federal Circuit Court, the Civil Dispute Resolution Act 2011 (Cth) requires parties to file a "genuine steps statement" outlining steps taken to resolve the dispute, or reasons why such steps were not taken. Lawyers must inform clients of this obligation. Non-compliance may result in adverse cost orders.

Conversely, the courts in New South Wales do not prescribe any pre-action conduct requirements.

Starting Proceedings

Generally, civil proceedings in Australia are commenced by the plaintiff filing originating documents, which usually takes the form of an originating process that outlines the parties and the types of relief sought which is accompanied by an originating document that sets out the issues likely to be in dispute and the facts supporting their claim.

The accompanying originating document can take the form of a statement of claim, summons, writ, points of claim or cross-claim (depending on court rules, the subject matter and the status of proceedings). An affidavit in support may also be required to address procedural matters such as the corporate status of the parties.

In most Australian jurisdictions, you may commence proceedings by electronically filing the originating application through the relevant online court registry.

Notice to the Defendant and Defence

A plaintiff must serve the originating documents on the defendant. Service is effected either by:

• personal service; or
• in the case of a corporate entity, by leaving the document or posting the document to its registered address.

There are special rules for serving parties in foreign jurisdictions, including the need to seek leave in some jurisdictions.

The defendant must respond by filing a notice of appearance or defence, usually within 14 to 28 days depending on the jurisdiction. Otherwise, the plaintiff may seek default judgment.

Stages of Litigation

Once commenced, the proceedings will be case managed by the relevant court, including by setting a timetable for subsequent stages and making procedural directions, including:

• Pleadings – the plaintiff pleads material facts and the defendant pleads a denial, admission or non-admission to each allegation. The purpose of pleadings is to narrow the focus of the court to only the issues in dispute.
• Disclosure (discovery) – parties exchange documents relevant to the issues in dispute, requiring full and frank disclosure of evidence, including electronic documents.
• Evidence – evidence is prepared as affidavits, witness statements or expert reports. Parties may rely on lay and expert evidence.
• Pre-trial matters.
• Potential referral to ADR processes (typically mediation).
• Hearing or trial.

Depending on complexity, proceedings in Australia commonly take approximately 12-18 months to reach trial, and can be longer for more complex and multi-party litigation.

Australian law recognises the principle of open justice. Civil court proceedings are generally conducted in public, subject to certain exceptions, which vary across each state and territory.

For example, in New South Wales, the statutory exceptions to the principle of open justice (in civil proceedings) include:

• if a closed court would be considered more appropriate, including for reasons that would assist in preserving the facilitation of justice;
• if a court considers it necessary to make a suppression or non-publication order, for example, because of confidentiality and commercial sensitivity; or
• where the publication of information could harm the credibility of a witness to the proceedings.

Australian courts have discretionary power to grant interim relief (interim and interlocutory injunctions) to preserve the subject matter and maintain the status quo pending final determination. Interim remedies are governed by each jurisdiction's court rules.

Interim relief is not a common remedy sought by litigants owing to the high threshold that must be satisfied to justify such an order and the requirement to proffer an undertaking as to damages. However, when sought, the following forms of interim relief may be available:

• orders for the preservation of property;
• asset preservation orders (freezing (Mareva) orders);
• orders for disposal of perishable or similar property;
• orders for payment of shares in a fund before the ascertainment of all persons interested;
• orders for interim distribution of property or income surplus to the subject matter of the proceedings;
• search orders (Anton Piller Orders); and
• security for costs.

Final relief available in commercial litigation varies by claim type. Broadly, available forms of final relief include:

• damages, in the form of monetary compensation for loss caused by the defendant's wrong, whether in contract or tort;
• equitable remedies;
• proprietary remedies; and
• statutory relief.

Damages

Damages are compensatory in nature and intend to put the plaintiff in the position they would have been in had the contract been performed or the wrong not committed. The standard of proof of damages in civil proceedings is on the balance of probabilities.

Equitable Remedies

Equitable remedies are discretionary and generally awarded where damages are inadequate compensation. Equitable remedies include:

• account of profits;
• declaratory relief;
• equitable compensation;
• injunctions;
• rescission;
• rectification; and
• specific performance.

Statutory Remedies

For statutory causes of action, the statute often provides specific remedies. For example, the Competition and Consumer Act 2010 (Cth) allows consumers to obtain repairs, replacements or refunds for faulty goods or services, and the Corporations Act 2001 (Cth) contains a broad range of remedies in relation to the regulation, administration and governance of corporations.

Damages in Contract

Damages aim to compensate the plaintiff for the wrong committed. The general rule is that where a party sustains loss from breach of contract, they are to be placed in the same position as if the contract had been performed.

The breaching party is liable to pay at least nominal damages, even if no loss occurred. If loss occurred, damages are awarded to place the injured party, so far as money can, in the same position as if the contract had been performed.

In assessing damages, a plaintiff needs to prove that it suffered loss, that the loss was caused by the breach, and that the loss was not too remote. Proof of loss invariably involves proving a hypothetical scenario: the position the plaintiff would have been in had the contract been performed.

The plaintiff has a duty to mitigate its loss, failing which damages may be reduced.

International and domestic arbitration remain popular forms of ADR in Australia.

On 26 June 2025, the Australian Centre for International Commercial Arbitration (ACICA), being Australia’s leading international dispute resolution body, published its 2024 annual statistics, reporting that the ACICA administered a total of 54 arbitration cases totalling AUD3.315 billion.

ACICA Statistics observed that the construction, infrastructure, and energy and natural resources industries remained dominant industries represented in cases administered by ACICA. The statistics noted arbitration cases were prevalent in the following industries:

• construction (30.8%);
• energy (15.4%);
• finance (15.4%);
• retail (7.7%);
• IT services (7.7%);
• sale of goods (7.7%);
• share purchase agreements (7.7%); and
• maritime disputes (7.7%).

Most commercial disputes are capable of arbitration and courts adopt a broad view of whether a dispute is arbitrable, subject to limited exceptions.

In considering whether a particular dispute is arbitrable, courts will look at whether:

• the contract expressly provides for an arbitration agreement, or whether the parties have otherwise agreed that arbitration will be the means of resolving disputes;
• there is a sufficient element of legitimate public interest in these subject matters making resolution of these matters outside the national court system inappropriate; and
• the identification and control of these subject matters is the legitimate domain of national legislatures and courts.

Certain state and federal legislation have prohibited certain matters from being capable of settlement by arbitration, including:

• criminal matters;
• certain aspects of family law (eg, divorce and custody of children);
• intellectual property disputes;
• antitrust and competition law matters;
• certain bankruptcy and insolvency matters;
• an arbitration agreement included in bills of lading or similar documents relating to the carriage of goods to or from Australia (which is void under Carriage of Goods by Sea Act 1991 (Cth)); and
• an arbitration agreement within a contract of insurance (which is void under the Insurance Contracts Act 1984 (Cth)).

Arbitration is a preferred ADR method for the following reasons:

• parties can choose their preferred arbitrator (unlike court proceedings where parties cannot choose the judge);
• there is flexibility in procedural rules, including limiting the scope of discovery and avoiding the strict application of rules of evidence;
• parties can agree on the jurisdiction and governing law which the dispute will be arbitrated on;
• arbitration provides the possibility of an expeditious hearing;
• providing the parties do not opt out of the confidentiality provisions in the International Arbitration Act 1974 (Cth) (IAA), the arbitration is confidential as between the parties; and
• arbitration is binding on the parties and is enforceable on application to the court.

Arbitration has been criticised for:

• Being time consuming – arbitrators tend to over commit and are not available for hearings or to provide awards in a timely manner.
• Being costly – significant legal fees are incurred by parties, including witness costs, tribunal costs and internal costs. While efficient and timely proceedings may minimise costs overall, arbitrations are not always timely.
• Having limited recourse to appeal – arbitral decision can only be appealed on points of procedure rather than substance, unlike in court proceedings where parties will commonly have an automatic right to appeal final decisions on the merits (other than in certain matters; for example, appeals to the High Court which requires special leave). 

Arbitral Institutions

ACICA is considered the pre-eminent institution for domestic and cross-border arbitration in Australia. It conducts arbitration and mediation under its own rules and under ad hoc arrangements.

ACICA has also been appointed under Section 18 of the IAA as the sole authority for appointing arbitrators for arbitrations seated in Australia under Articles 11(3) and (4) of the Model Law.

Foreign institutions, such as International Chamber of Commerce, London Court of International Arbitration and Singapore International Arbitration Centre, can also be considered by Australian litigants in cross-border disputes.

National Courts

Pursuant to the IAA, Australia has adopted the UNCITRAL Model Law on International Commercial Arbitration (Model Law) and has designated the Federal Court of Australia, or if the arbitration is to take place in an Australian state or territory, the Supreme Court of that state or territory, with powers to oversee international arbitrations seated within its jurisdiction and to enforce arbitral awards in Australia.

The length of arbitral proceedings varies depending on the complexity and subject of the matter, the number of arbitrators, and the extent of party co-operation.

Broadly and at a level of generality, timeframes for typical stages of an arbitral process are:

• preparation (normally 2-3 months);
• commencement of arbitration (1-2 months);
• constitution of tribunal and preliminary meeting (1-2 months from the commencement of arbitration);
• detailed submissions (3-5 months);
• production of documents (if applicable) (1-3 months);
• evidence (2-8 months);
• hearing (1-4 weeks); and
• award (determination) (2-4 months).

Commercial arbitration in Australia is governed by both federal and state legislative regimes. The statutes are substantially the same across each jurisdiction and are collectively referred to as the Uniform Arbitration Acts.

International commercial arbitrations are governed by the IAA.

The Model Law is given the force of law in Australia by virtue of Section 16 of the IAA.

Part II of the IAA deals with recognition and enforcement of international arbitral awards. In particular, it sets out Australia’s accession to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention). The New York Convention facilitates the global enforcement of foreign arbitral awards across over 170 contracting states.

Australia is considered a "pro-arbitration" jurisdiction. As such, where parties have agreed to refer disputes to arbitration, and a dispute arises, Section 7(2) of the IAA provides that the court shall stay the court proceedings in favour of arbitration. Further, and by way of example, the Federal Court has express statutory authority to refer, with the parties’ consent, a proceeding to arbitration.

Section 8 of the IAA provides that a foreign award is recognised as binding and enforceable on all parties. In addition, an arbitral award under the Model Law is also recognised in Australia, regardless of the country in which the award was made.

However, whilst being generally arbitration-friendly, Australian courts will refuse to recognise and enforce an award if there are established grounds for doing so. This includes, for example, where the arbitral tribunal was not appointed in accordance with the agreement of the parties (Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company (2021) FCAFC 11) or where there is a “real unfairness or real practical injustice” by reference to the accepted principles of natural justice in relation to how the dispute was dealt with: TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) FCAFC 83) at (110)-(111).

As stated in 3.8 Court Powers, Australian courts have long held a reputation of being “pro-arbitration” and as such, are cautious to intervene in an ongoing arbitration process.

In upholding Australia’s reputation of being “pro-arbitration”, courts will liberally construe arbitration agreements and give effect to the express intention of the parties to submit their disputes to arbitration.

Article 8 of the Model Law provides that, where a proceeding is brought before it on a matter which is the subject of an arbitration agreement, the court must, if a party requests it no later than submitting its first statement on the substance of the dispute, refer the parties to arbitration unless the court finds that the agreement is null and void, inoperative or incapable of being performed. In this context, the Australian courts have found that, if there is a prima facie valid arbitration agreement which appears to cover the matter in dispute, a jurisdictional challenge should be referred to the arbitral tribunal.

However, where a court considers it is better placed than the arbitral tribunal to deal with matters relating to the existence, validity or scope of an arbitration agreement (eg, if such matters can be dealt with as a discrete exercise and are not relevant to the substantive matters in dispute between the parties), it may do so: Dialogue Consulting Pty Ltd v Instagram, Inc (2020) FCA 1846, upheld on appeal in Instagram Inc v Dialogue Consulting Pty Ltd (2022) FCAFC 7.

Types of Preliminary and Interim Relief

An arbitral tribunal in Australia has broad powers to take interim measures under Article 17 of the Model Law. Briefly stated, these include orders to:

• maintain or restore the status quo pending determination of the dispute;
• take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself;
• provide a means of preserving assets out of which a subsequent award may be satisfied; and
• preserve evidence that may be relevant and material to the resolution of the dispute.

In Australia, an application for interim measures cannot be made on an ex parte basis: Section 18B of the IAA.

In addition, a tribunal is also conferred with the power to make an order assisting a party with taking evidence (unless the parties opt out of this provision by agreement): Section 23J of the IAA.

Types of Final Relief

Under Australian law, parties can obtain the same remedies from arbitrators which could be sought from an Australian court. The remedies are not limited by the IAA. Accordingly, available remedies include, but are not limited to, rectification and nullification of contracts, specific performance, interim or permanent injunctive relief, declaratory relief and statutory remedies.

However, it is possible for the terms of an arbitration agreement to provide limits on the types of remedies that an arbitral tribunal may award.

No information has been provided in this jurisdiction.

No information has been provided in this jurisdiction.

No information has been provided in this jurisdiction.

ADR forms part of court procedures both before and during the proceedings. Courts will frequently order the parties to participate in a mediation at an appropriate time in the litigation.

Engaging in ADR does not stop or suspend limitation periods from running and a party may need to consider whether legal proceedings will need to be commenced within the relevant limitation period (and stayed to allow parties to complete the ADR process). Alternatively, and depending on the circumstances, a standstill or other agreement could be entered into by the parties undertaking an ADR process, whereby the parties agree to contract out of the right to plead a statutory limitation defence as a defence or bar to proceedings, effectively agreeing to give up the benefit provided by the relevant limitation legislation (see for example, Price v Spoor (2021) 270 CLR 450).

Confidentiality is one of the significant attractions of submitting disputes to ADR. All conduct, communications and agreements made during settlement mediations are understood to be made "without prejudice" and as such, are inadmissible in court. 

Unless the parties mutually agree to disclosure, both parties and the mediator must maintain the confidentiality of discussions and documents exchanged during a mediation.

Similarly, the arbitration process is confidential and unless the parties agree otherwise, the outcome of the arbitration is also confidential. Expert determinations are not governed by legislation, and the process can be confidential upon agreement of the parties and entry into appropriate confidentiality undertakings. However, it should be noted that the confidentiality of all ADR processes are subject to limited exceptions.

Costs depend on the type of ADR process adopted and the terms of any arbitration agreement or expert determination clauses.

Generally, in mediation, expert appraisal or neutral evaluation, the costs are divided between the participating parties.

In an arbitration or expert determination, the decision-maker usually determines the question of costs unless the contract provides otherwise. The arbitrator can direct that the costs are to be limited to a specified amount.

Australian courts strongly encourage the resolution of disputes through ADR processes.

Generally, Australian courts will give effect to agreements requiring parties to refer their dispute to an ADR process, including by staying proceedings pending the outcome of that referral. Courts also have the power to refer proceedings or parts of proceedings to mediation. However, the Federal Court of Australia can only refer a proceeding to arbitration with the parties' consent.

It is mandatory in all Australian jurisdictions under the Legal Profession Uniform Law (Uniform Law) and the relevant Legal Profession Acts for law practices to disclose information about legal costs to clients, including the basis on which legal fees are charged and the estimate of the total legal costs.

In some states, such as NSW, clients are able to contract out of mandatory and detailed fee disclosure requirements for sophisticated clients as part of the engagement terms.

Generally, legal practitioners charge for their professional services on the basis of an hourly rate, fixed-fee billing arrangement, or in limited circumstances, a conditional cost agreement. 

The core principle underpinning legal costs across all jurisdictions in Australia is that legal costs must be both fair and reasonable.

Third-party funding refers to an arrangement in which a funder, with no prior relationship to the dispute, agrees to finance a party's legal costs in exchange for an agreed return – typically reliant on the outcome of the proceedings. Third-party funding is permitted in Australian jurisdictions and is especially prevalent in class action proceedings.

In Australia, solicitors are prohibited from charging an uplift on the award of damages in successful litigation (referred to as contingency fees), with the exception of Victoria.

In June 2020, Victoria amended its legislation to allow plaintiff law firms to charge contingency fees in class action proceedings (Group Costs Order). In deciding whether to award a Group Costs Order, the Supreme Court of Victoria is required to assess, amongst other things, whether:

• it is “…appropriate or necessary to ensure that justice is done in the proceeding”; and
• the rate sought by the plaintiff law firm is reasonable and proportionate to the risk undertaken by it.

In Kain v R&B Investments Pty Ltd (2025) HCA 28, the High Court of Australia held that the Federal Court of Australia does not have the power to order a Solicitors’ Common Fund Order (an order allowing compensation from any settlement or judgment to be used to pay the plaintiff's lawyers) at settlement or judgment in favour of a solicitor, however, the Federal Court has the power to make a Common Fund Order for third-party funders.

While contingency fees are not available in Australian jurisdictions outside Victoria, cost agreements can be entered on a conditional basis. That is, a client can agree to pay an uplift (up to 25%) on their lawyer's standard rates on a successful outcome. Conditional costs agreements are typically found in class action proceedings.

Following the High Court’s clarification on Common Fund Orders (CFOs) in Kain, and the introduction of Group Costs Orders in Victoria, the Supreme Court of Victoria has seen a significant rise in class action proceedings. Notably, between 2020 to 2024, 82 class actions were commenced in the Supreme Court of Victoria, representing an increase of 44.3% of the sum of all class actions ever commenced in Victoria.

Insurance for litigation costs, known as “after the event insurance” (ATE), is permitted and available in Australia. ATE policies offer protection against adverse costs orders in commercial disputes and are frequently taken out by plaintiffs in class action proceedings.

As a general rule, costs follow the event in Australia but remain subject to the discretion of the court. This means that the court will typically make an order allowing the successful party to recover a proportion of their costs from the unsuccessful party.

In certain circumstances, a court may award indemnity costs to a party. Indemnity costs, being a greater level of costs, are awarded to a party where, for example, there has been unreasonable or improper conduct shown by the other party to proceedings. Actual cost orders may also be awarded in limited circumstances.

Unless the parties are able to reach an agreement as to the amount of costs to be paid following an adverse costs order, then the amount of costs recoverable may be subject to an assessment or taxation process by a costs assessor.

While it varies across each jurisdiction, and each case, a successful party to a proceeding (with the benefits of a costs order) will typically be entitled to recover between 60% to 75% of its actual legal costs and disbursements.

The court can award costs to be paid on an indemnity basis in specified circumstances, such as where either party:

• rejected a settlement offer that it failed to better at trial;
• caused unnecessary delay or expense in the proceedings through their conduct; or
• engaged in misconduct by bringing or continuing the proceedings.

Where an order for indemnity costs is made, the successful party will typically be able to recover in excess of 75% of their actual legal costs.

In some jurisdictions, including the Federal Court and NSW Supreme Court, successful parties may seek a “lump sum” costs order from the trial judge, which is an order that a specified amount be paid to the successful party by the unsuccessful party in satisfaction of an adverse costs order. Such orders are intended to provide a relatively quick resolution to costs disputes and avoid the drawn-out process of cost assessment or taxation.

Australian courts possess broad powers to grant interim relief, including the following:

• Freezing orders (also known as Mareva orders) – these prevent frustration of court process by preserving assets from dissipation. Such orders may also be made against third parties holding assets in which the respondent has a beneficial interest.
• Search orders (also known as Anton Piller orders) – these require entry to premises to secure or preserve evidence. Applications are ordinarily made without notice to the other party.
• Asset preservation orders – these provide for the preservation, custody, detention or sale of property that is the subject matter of proceedings.
• Interim and interlocutory injunctions – these restrain conduct (prohibitory) or require positive steps (mandatory) pending trial, to preserve the status quo.
• Norwich Pharmacal orders – these require third party disclosure to identify wrongdoers or trace assets.

Australian courts can grant interim relief in support of arbitration, including injunctions and freezing orders. Article 17J of the UNCITRAL Model Law on International Commercial Arbitration, given the force of law by the International Arbitration Act 1974 (Cth), empowers courts to grant any interim relief otherwise available in court proceedings, and the uniform Commercial Arbitration Acts confer equivalent powers in domestic arbitration. These powers are exercised sparingly, as recourse to open court may erode arbitration’s benefits, including confidentiality.

Disputes Not Yet the Subject of Court Proceedings

Negotiation, mediation and other non-binding ADR processes cannot themselves provide interim relief. A party requiring urgent relief must apply to the courts, which can grant interim injunctions, freezing orders and search orders prior to the commencement of substantive proceedings. Commencing litigation solely to obtain interim relief does not preclude the parties from continuing ADR in parallel.

Disputes the Subject of Existing Court Proceedings

Where proceedings are already on foot, different considerations apply depending on whether an arbitration agreement exists or the court has ordered or facilitated ADR.

Disputes subject to an arbitration agreement

The court retains the power to grant interim relief, which is not incompatible with an arbitration agreement. A party may therefore obtain relief, for example, to preserve assets, maintain the status quo or prevent the destruction of evidence, pending constitution of the tribunal. Once constituted, the tribunal may also grant interim measures under s 17(1) of the Commercial Arbitration Act 2010 (NSW) (and equivalents in each other State and Territory).

Disputes where the court orders or facilitates mediation or other ADR

Where the court orders or facilitates mediation or other non-binding ADR, its power to grant interim relief is unaffected and the ADR process does not displace the court's jurisdiction. Civil procedure legislation in each state and territory preserves the court’s full powers to grant interlocutory relief, including injunctions and freezing orders, notwithstanding any direction to mediate. A party in court-ordered mediation requiring urgent relief may apply in the ordinary way, with the application determined on usual principles.

Applications for interim relief before a court makes a final order may be made at various stages to preserve the position of a party. Applications are commonly brought at the following junctures:

• Before proceedings commence – courts have power to grant interlocutory relief before a substantive claim is filed, typically in cases of urgency. The applicant will ordinarily be required to commence proceedings promptly and to provide an undertaking as to damages. This commonly occurs where a freezing order is sought and the applicant applies to the court without notice by way of an interim application.
• At or shortly after filing – once proceedings are commenced, interim orders are commonly sought at an early stage to preserve rights, assets or evidence before the respondent has an opportunity to take steps that might frustrate the litigation.
• During the interlocutory phase – as the matter develops, parties may apply for specific protective orders such as freezing orders, search orders, or injunctions. Interim relief may also be sought after judgment to aid enforcement or preserve its fruits. Courts will consider the urgency of the application and whether any delay in seeking relief undermines the applicant's case.

A defendant may apply for an order requiring the plaintiff to provide security for the defendant’s costs of the proceeding. The purpose is to protect a defendant from having a costs order wholly frustrated by the plaintiff's inability to satisfy it. Security for costs is a discretionary remedy, exercised having regard to the facts of each case.

In determining whether to grant security for costs, the court will balance the interests of the litigants and consider factors including:

• the impecuniosity of the plaintiff, including whether there is reason to believe the plaintiff will be unable to meet an adverse costs order;
• whether the plaintiff is ordinarily resident outside the jurisdiction and has assets within the jurisdiction;
• the strength of the plaintiff's claim;
• whether a third party (such as a litigation funder) is funding the proceeding and stands to benefit from any recovery, in which case the court may order the funder to provide security;
• whether an order for security would effectively prevent the plaintiff from pursuing its claim; and
• whether the plaintiff’s impecuniosity was caused by the defendant’s conduct.

Security is more readily ordered against corporate plaintiffs under Section 1335(1) of the Corporations Act 2001 (Cth). Courts are reluctant to order security against natural persons. If security is not provided, proceedings may be stayed or dismissed.

A party may apply for an interim injunction to prevent any immediate harm and are usually short term. Interim injunctions can include orders seeking to preserve property or restrain conduct pending the hearing of an application for an interlocutory injunction. Interim injunctions are commonly heard and granted ex parte, as a matter of urgency, and are usually expressed to be operative only for a limited period to preserve the status quo until such time as an application for an interlocutory injunction can be heard and determined.

An injunction is a discretionary remedy and is not granted as a matter of course.

The court will grant an interim injunction only where it is satisfied of the following:

• there is a serious question to be tried (that is, a prima facie case that the plaintiff would be entitled to relief);
• the balance of convenience favours granting the injunction (weighing the harm to the plaintiff if refused against the harm to the defendant if granted);
• the matter is sufficiently urgent; and
• if the application is made without notice, the plaintiff must disclose potential detriment to the defendant.

The court does not normally grant an interim injunction without also requiring the applicant to give a personal undertaking as to damages, requiring the applicant undertake to the court to compensate any person negatively affected if the injunction is later found to be unwarranted.

A party may apply for summary judgment seeking determination without a full trial. The court may grant summary judgment if it is satisfied that:

• there is no reasonable cause of action or defence;
• the claim/defence has no real prospects and no trial is needed; or
• the proceeding is frivolous, vexatious, an abuse of process, or determinable on a clear legal question.

The bar to obtaining summary judgment is high. Courts are reluctant to grant summary judgment where contested facts require oral evidence or credibility findings, or where legal issues are novel or complex. If summary judgment is granted, the successful party obtains a final judgment without a trial. If refused, the proceeding continues to trial in the ordinary course.

Class actions may be brought in the Federal Court and in the Supreme Courts of Victoria, New South Wales, Queensland, Tasmania and Western Australia, each of which has enacted a dedicated class action framework. South Australia, the Northern Territory and the Australian Capital Territory have not yet established their own class action frameworks, but class actions may still be commenced in those jurisdictions through the relevant Federal Court registry. Representative proceedings may otherwise be pursued in those jurisdictions under the older representative proceedings procedure, which applies the long-standing “common” or “same” interest rule rather than a bespoke statutory regime incorporating opt-out procedures, court-supervised settlement approval and similar machinery.

All Australian class action frameworks establish that a class action proceeding may be commenced by one or more persons as representative of the group members where:

• seven or more persons have claims against the same person;
• the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
• the claims of all those persons give rise to a substantial common issue of law or fact.

Other notable mechanisms that underpin the class action regimes in Australia include the following:

• Group members' consent is not required to commence a class action, but they must receive notice and an opportunity to "opt out" of the proceeding. Group members who do not opt out will be bound by the outcome of the class action.
• Class actions are subject to judicial oversight through "case management conferences" or "directions hearings", where the presiding judge sets a court timetable and monitors compliance to ensure that proceedings are resolved quickly and efficiently.
• Settlement may occur at any stage of the class action but requires court approval. If a settlement is approved, the parties will generally agree to a settlement scheme to determine how each member’s claim is to be assessed and how individual entitlements will be calculated and distributed.
• The representative plaintiff (or sub-group representative plaintiff) may appeal a judgment on behalf of all group members (or sub-group members) within a specified period. If no appeal is lodged within that time, any group member may lodge an appeal within a further specified period.

A person with sufficient interest to commence proceedings on their own behalf has sufficient interest to commence a class action. The representative party must have their own claim against the respondent. The requirements to constitute a "class" are that:

• seven or more persons must have claims against the same person;
• the claims of all persons must be in respect of, or arise out of, the same, similar or related circumstances; and
• claims must give rise to a substantial and common issue of law or fact.

To participate in the class action, a person must fall within the class definition.

A court may do any one or more of the following:

• determine an issue of law;
• determine an issue of fact;
• make a declaration of liability;
• grant any equitable relief;
• make an award of damages for group members, sub-group members or individual group members, being damages consisting of specified amounts or amounts worked out in such manner as the court specifies;
• award damages in an aggregate amount without specifying amounts awarded in respect of individual group members;
• oversee the distribution of damages or settlement amounts; or
• make such other order as the court thinks just.

Courts have flexibility in that the awards may specify individual amounts, calculation methods, or aggregate sums. Damages are assessed on compensatory principles, with the objective of placing group members in the position they would have been in but for the defendant’s conduct. In shareholder class actions, damages are commonly calculated by reference to “market-based causation” principles, measuring the drop in share price attributable to the defendant’s misleading conduct.

Class actions and mass claims are not frequently brought in arbitration in Australia.

Australian arbitration law does not expressly contemplate multi-party arbitration or class-wide claims, and the statutory class action regimes are confined to court proceedings.

For a class action to proceed in arbitration, all group members would need to be party to a binding arbitration agreement with the respondent. Most multi-party disputes therefore proceed through the court-based class action framework.

Australia has one of the world's most developed class action markets. The 1,000th Federal Court class action was filed in 2025, with the first 500 taking 25 years and the second 500 taking just 8 years. Key trends are identified below.

Victoria and New South Wales Are the Most "Class Action Friendly"

Victoria and New South Wales are the principal jurisdictions for class actions. As at April 2026, there are at least 219 open class actions in total, comprising:

• 161 in the Federal Court (94 in the Victorian Registry and 47 in the New South Wales Registry);
• 32 in the Supreme Court of Victoria;
• 17 in the Supreme Court of New South Wales;
• 8 in the Supreme Court of Queensland; and
• 1 in the Supreme Court of Western Australia.

Subject Matter of Major Cases

The dominant categories of class action litigation in Australia include:

• Shareholder and securities disputes – though new filings have declined following adverse judgments where plaintiff loss was not established, shareholder and securities disputes remain a significant risk for listed entities.
• Data and privacy breach claims – this is a growing area driven by high-profile cyber incidents. Class actions arising from the Optus and Medibank breaches remain ongoing. Privacy Act reforms, including a statutory privacy tort, are expected to heighten risk.
• Natural disaster claims – prominent mass tort litigation includes the Kilmore Bushfires, Murrindindi Bushfires (AUD300 million), and Queensland Floods (AUD440 million) settlements.
• Employment disputes – a core category including wage and overtime underpayment claims and, increasingly, vicarious liability for harassment and sex discrimination claims following positive duty requirements on employers.

Discovery is the main form of document disclosure. Broadly, there are two common forms of discovery: standard or general discovery, which requires parties to produce documents that are directly relevant to pleaded issues and within their possession, custody or power; or discovery by categories, where disclosure is limited to documents falling within specified categories.

Some jurisdictions provide a general right to discovery, though litigants in the Federal Court and New South Wales Supreme Court do not have a general right and are required to apply to the Court for discovery orders. Pre-trial discovery may be available where the prospective defendant's identity is unknown or more information is needed to determine whether to pursue proceedings. Discovery orders are otherwise generally made after both parties have filed pleadings, and in some courts, only after the filing of evidence.

Discovery is limited to documents (or categories of document) that are relevant to a fact in issue. In the Federal Court and Supreme Courts of Tasmania and Victoria, a relevant document will include any document that:

• the party intends to rely upon;
• adversely affects the party’s own case;
• supports another party’s case; or
• adversely affects another party’s case.

Other state and territory Supreme Courts have formulated similar tests for relevance which broadly reflect the principles above. For example, in New South Wales, a document will be relevant to a fact in issue if it contains material “that could rationally affect the assessment of the probability of the existence of that fact”, irrespective of whether the document would be admissible in evidence.

Parties have a continuing obligation to disclose relevant documents until the proceedings are finalised. Time limits vary by court. Some courts have published guidelines on electronic discovery and artificial intelligence use. Failure to comply may result in dismissal, striking out of pleadings, exclusion of documents, or criminal sanction for deliberate destruction.

Australian law recognises several forms of privilege that may be asserted to withhold documents from disclosure:

• Legal professional privilege – this protects confidential lawyer-client communications from compulsory disclosure. It covers communications and documents created for the "dominant purpose" of seeking or obtaining legal advice (advice privilege) or actual or anticipated legal proceedings (litigation privilege).
• Without prejudice privilege – this applies to all communications made between parties in connection with genuine attempts to negotiate a settlement of legal proceedings.

Other recognised privileges include: common interest privilege, privilege against self-incrimination, public interest immunity, professional confidential relationship privilege, journalist privilege, sexual assault communications privilege, and privilege against self-exposure to civil penalty.

Privileged documents that are discoverable can be withheld from production, but they must be identified in a schedule containing details of each document and the basis for the privilege being claimed. Privilege is only waived in limited circumstances, primarily where the privilege holder acts inconsistently with confidentiality, including by disclosing the gist, substance or conclusion of legal advice.

Australian law does not recognise a general right to withhold evidence solely on grounds of confidentiality. However, statutory exceptions exist:

• Professional confidential relationship privilege – evidence legislation in New South Wales, Tasmania, the Australian Capital Territory and Western Australia confers a judicial discretion to exclude evidence of a “protected confidence”. This captures confidential communications made to a person acting in a professional capacity who was under an obligation not to disclose it. The court may exclude the evidence if satisfied that harm to the confider outweighs the desirability of the evidence being given.
• Religious confession privilege – members of the clergy are entitled to refuse to divulge religious confessions under evidence legislation in most states and territories. This entitlement will not apply where the confession was made for a criminal purpose.
• Physician-patient privilege – specific provisions in Tasmania’s evidence legislation operate to prevent physicians from divulging some patient information in civil proceedings.
• Journalist privilege – statutory provisions under most state and territory legislation permit journalists to refuse to disclose the identity of informants where they have promised confidentiality. This privilege is subject to public interest balancing.
• Sexual assault communications privilege – several jurisdictions across Australia protect counselling communications made by, to or about victims of sexual offences. Disclosure of these communications is generally prohibited unless the court grants leave.

In civil cases in superior courts, witnesses provide written evidence (affidavits, witness statements or outlines) before trial, and in some circumstances will be required to give oral evidence in-chief at trial. The form of the evidence at final hearing is a matter of discretion of the trial judge. Written evidence must comply with evidence rules; otherwise, objectionable parts may not be admitted.

At a final hearing, following the conclusion of a witness’s oral evidence-in-chief (which may involve little more than confirming the accuracy of their written evidence), the opposing party will usually have the opportunity to test that evidence in cross-examination. During cross-examination, the witness may also be asked questions by the judge.

Once cross-examination is concluded, the party who called the witness may re-examine the witness about matters arising from the evidence given in cross-examination.

At interlocutory hearings, leave is required to cross-examine witnesses.

Witness depositions are not a feature of Australian litigation.

Expert evidence is permitted in Australian courts, subject to the overriding requirement that expert witnesses provide independent assistance to the court on matters within their expertise, irrespective of which party has retained them.

Appointment Procedure

Different courts and judges have different rules and preferences as to whether expert evidence should be adduced by competing experts retained by the parties, or by a single joint expert. Expert evidence is typically adduced through an expert report, coupled with cross-examination.

Where there is a single joint expert, the parties must confer and agree on the expert to be appointed; failing agreement, the court will appoint the expert.

Role of Experts

An expert witness is subject to an overriding duty to the court (not the party who retained them) to provide independent, objective and unbiased opinions on matters within their expertise. An expert must not mislead the court or become an advocate for the retaining party. Each state and territory has an expert witness Code of Conduct setting out the court’s expectations. An expert witness must acknowledge and agree to be bound by the relevant Code of Conduct.

Cross-Examination of Experts

Where parties each adduce expert evidence (rather than appointing a single joint expert), the plaintiff typically serves an expert report in chief, the defendant serves an expert report in response, and the plaintiff serves an expert report in reply. Sometimes, the report in reply is replaced by the experts conferring (without lawyers) before the final hearing to narrow their differences. During the hearing, each party will typically have the opportunity to cross-examine the opposing party’s expert, either individually or concurrently.

Fees

Each party bears the cost of engaging experts. The fees of a court-appointed expert witness are split between the parties. However, where a party is successful and obtains a costs order, experts’ fees may form a component of the costs recovered.

Foreign judgments may be recognised and enforced through statute or common law.

Foreign Judgments Act 1991 (Cth) (the FJA)

The FJA permits registration of foreign judgments from countries listed in Schedule 1 (including the UK, France, Germany, Italy, Japan, Singapore, Hong Kong, Switzerland, Israel, Korea and Papua New Guinea). Registrable judgments include:

• a final or interlocutory judgment or order given or made by a court in civil proceedings;
• a judgment or order given or made by a court in criminal proceedings for the payment of compensation or damages to an injured party; or
• an arbitral award that has become enforceable as a judgment in a court of that country.

The Federal Court registration procedure requires the applicant to file an originating application (with a certified copy of the judgment and supporting affidavit) within six years of the judgment date. A party may seek security for costs. At the hearing, a second affidavit must address: the causes of action; that the judgment is enforceable in the original court; the applicable interest rate; and, for money judgments, the amount outstanding and Australian currency equivalent.

Courts have no discretion to refuse registration where statutory requirements are met. Once registered, the applicant must serve the order personally before enforcing. The respondent then has 14 days to apply to set aside the registration or stay enforcement.

Trans-Tasman Proceedings Act 2010 (Cth) (the TTPA)

New Zealand judgments may be registered under Part 7 of the TTPA by filing Form 5 and a hard copy of the judgment within six years. The court then issues a registration order. The applicant must then serve notice (Form 6) on each liable person within 15 working days by registered post or personal delivery.

Once registered, a New Zealand judgment has the same force as an Australian judgment and may be enforced accordingly (including for costs and interest), provided it remains enforceable in the original court. A liable person may apply to set aside the registration within 30 working days of receiving notice.

Common Law

For judgments not covered by statute, enforcement may proceed at common law. Four conditions must be met: the foreign court had jurisdiction recognised by Australian courts (through presence, residence or voluntary submission); the judgment is final; the parties are the same; and the judgment is for a fixed sum. Once satisfied, the judgment is presumed enforceable unless the defendant establishes a recognised defence, which includes that:

• enforcement would be contrary to Australian public policy;
• the foreign judgment was obtained by fraud;
• the foreign judgment is penal or a judgment for a revenue debt; or
• enforcement would amount to a denial of natural justice.

Foreign Arbitral Awards

Foreign awards subject to the New York Convention may be enforced under the IAA. An application is filed with an originating application, the original award (or certified copy), arbitration agreement, and supporting affidavit. Enforcement may be ordered as if the award were a court judgment. Australian courts adopt a pro-enforcement approach.

Section 8(3A) of the IAA provides that a court may only refuse to enforce a foreign award on limited grounds, including:

• a party to the arbitration agreement was under some incapacity;
• the arbitration agreement is not valid under its governing law;
• a party was not given proper notice or was otherwise unable to present its case;
• the award deals with matters beyond the scope of the submission to arbitration;
• the arbitral procedure was not in accordance with the parties’ agreement;
• the award has been set aside or suspended at the arbitral seat, or has not yet become binding;
• the subject matter is not capable of settlement by arbitration; or
• enforcement would be contrary to public policy (including where the award was affected by fraud or corruption, or where there was a breach of natural justice).

Domestic Arbitral Awards

Domestic awards are enforced under state and territory Commercial Arbitration Acts which follow the Model Law. The party applies to the relevant court and the award is enforceable as a court judgment. Australian courts maintain a strongly pro-arbitration approach.

Enforcement timing depends on the method used and whether contested.

Statutory registration under the FJA or TTPA is relatively quick. Uncontested cases may be completed within weeks. If contested, proceedings may take significantly longer.

Common law enforcement requires fresh court proceedings and may take twelve months or more if contested.

Arbitral award enforcement under the IAA is intended to be summary. Uncontested enforcement may complete in weeks; contested matters take longer but courts apply a strong pro-enforcement presumption.

Foreign judgments from countries not covered by statute must be enforced at common law. The process involves fresh proceedings, and courts have broader discretion in relation to enforcement.

Foreign Judgments

Under Section 7 of the FJA, registration must be set aside if: the judgment is not registrable or has ceased to be; it was registered for more than payable; it was registered in breach of the Act; the foreign court lacked jurisdiction; there was inadequate notice to defend; fraud; reversal or discharge; full satisfaction; or enforcement would be contrary to public policy.

Under Section 72 of the TTPA, New Zealand judgments may be set aside if registered in contravention, contrary to public policy, or concerning immovable property not in New Zealand.

At common law, defences include fraud, public policy, penal/revenue judgment, and denial of natural justice.

Arbitral Awards

Under Section 8(5) of the IAA, grounds for resisting enforcement include: party incapacity; invalid arbitration agreement; lack of proper notice; award exceeding scope; procedural non-compliance; award set aside at seat; non-arbitrable subject matter; or public policy (including fraud, corruption, or breach of natural justice).

The use of AI in dispute resolution is not yet governed by a single comprehensive framework. Regulation is emerging through court rules, practice notes, judicial guidelines and professional conduct obligations across jurisdictions.

Most recently on 16 April 2026, the Federal Court issued a practice note on the use of generative AI, which sets out when practitioners must disclose their use of AI in a proceeding. The practice note also recognises that AI can bring significant risk to the proper administration of justice, and that adverse costs orders may apply in circumstances of noncompliance.

At the state level, formal guidance has been issued:

• The Supreme Court of New South Wales has amended its Uniform Civil Procedure Rules to address generative AI (including Practice Note SC Gen 23). Significantly, the guidance prohibits the use of generative AI in the preparation of evidence.
• The Supreme Courts of Victoria, Western Australia and South Australia have issued guidelines governing the responsible use of AI in litigation, including document review and witness evidence.
• The Supreme Court of Queensland has issued a practice direction requiring verification of written submissions to ensure the accuracy and relevance of references.

All jurisdictions currently emphasise that existing professional conduct rules (competence, diligence, honesty, confidentiality, duties to the court) apply to the use of AI.

AI is increasingly being recognised as a tool that facilitates efficiency and productivity in document review processes, chronology generation and legal research.

Courts emphasise that practitioners remain personally responsible for document accuracy – verifying not merely that cited cases exist, but that they are authority for the principles relied upon, remain good law, and are relevant.

There have also been instances involving fabricated legal citations submitted without verification. In Dayal (2024) FedCFamC2F 1166, a solicitor's practising certificate was varied after failing to verify an AI-generated case list. This marked the first Australian professional sanction for AI misuse. Subsequent cases have seen practitioners referred to regulators, reprimanded, or named in judgments for submitting non-existent authorities.

Australian courts have adopted a cautious but receptive approach, recognising the efficiency potential of AI while requiring robust safeguards.

Practice notes across jurisdictions permit the use of AI for document review, submissions preparation, chronologies and summaries, while reinforcing that content generated by artificial intelligence must be independently verified. All content filed remains the practitioner's personal responsibility.

Regulatory development continues. South Australian rules are scheduled to be amended in early 2026; the Victorian Law Reform Commission has recommended eight principles for safe artificial intelligence use. The trajectory points toward greater formal regulation, potentially including court rule amendments and prescriptive practice directions, while preserving the principle that AI supports – but does not replace – professional judgment.