Civil Litigation in Australia

Civil Litigation in Australia

Civil litigation means a dispute between two or more parties without criminal accusations involving monetary damages or specific performance. Civil litigation is how a court of law resolves civil disputes. People’s relationships with one another can be described as civil matters, such as marriage or a dispute over a contract. Several types of civil litigation, including Business Torts, Civil Procedure, Civil Remedies, Liability for products, civil rights, and professional malpractice.

The High Court of Australia exercises original and appellate jurisdiction. Appeals from the appellate divisions of the state and territory Supreme Courts and the Federal Court of Australia make up the bulk of High Court cases. Appeals to the High Court of Australia will require a special leave of appeal, which cannot be granted as of right. Legal challenges to laws are matters the High Court of Australia heard in its original jurisdiction. The full court of seven justices hears essential matters, including constitutional issues, assuming that all justices are available. The majority of other matters are heard by at least two justices, although some requests for special leave do not have an oral hearing. The decisions of the High Court bind all lower courts.


The Federal Court of Australia deals with most civil disputes under Australian federal law. Moreover, the Federal Court of Australia hears disputes concerning intellectual property, taxation, bankruptcy, corporate law, industrial relations, and consumer protection laws. A discrete, high-volume area of law is managed by a discrete court explicitly created for this purpose.

The Civil Litigation System in Australia

Courts in Australia have a heavy caseload due to the jurisdiction’s high level of Civil Litigation. Various methods are used to manage this caseload, including specialist lists, docket judges, streamlined interlocutory processes, and case management conferences. Furthermore, courts often refer parties to mediation and other alternative dispute resolution options to minimize litigation in cases that parties can resolve otherwise.


Procedures and timetables for civil claims

The relevant civil procedure rules contain provisions regarding the service of an originating process. In New South Wales, each defendant must be personally served with an originating process.


Almost all documents can be served through ordinary means, including sending them by post, facsimile, or email (if the other party consents). After a claim is filed with the Supreme Court, it must be served within six months. Within 28 days of service of the statement of claim, a statement of defense must be filed unless the court orders otherwise. There may be some circumstances where it will be necessary to obtain further and more detailed information about the matters pleaded in the statement of claim to understand it better.


There is considerable variation in the civil claims timeline depending on the case’s complexity, the amount of evidence to be collected, and the court hearing the case. A commercial dispute can be heard within a year of the occurrence in a specialist list. A representative action (class action) may take over five years. The courts provide guidelines regarding the approximate delivery date of judgments, but these are only indicative.


The evidence: pre-trial

In Australia, witnesses generally submit written statements of their evidence in the form of an affidavit, statutory declaration, witness statement, or expert report before a hearing. Most of the documents are signed under oath or affirmation.


The rules of most courts of Civil Litigation require notice that an expert witness will be called and a report of the expert’s testimony to be served before the hearing takes place for expert evidence. It is possible to admit a joint expert report or an individual expert report in proceedings following a conference of experts. Unless otherwise ordered, the expert’s opinion must be supported by one or more reports.


Availability to the public

A confidential hearing or confidentiality order can be made in a commercial dispute to protect trade secrets, intellectual property, or commercially sensitive information. Online portals are now available in some jurisdictions for public access to court documents, such as court orders. However, the public usually has to request access to court documents. Access to materials tendered as evidence or otherwise disclosed in open court is usually granted subject to particular circumstances and confidentiality orders.


Possible remedies

When a matter in Australia reaches trial, a judgment will be published by the relevant judge. A judgment is a formal order issued by a court that concludes the proceedings.


In a judgment, the Civil Litigation court can address the substantive issue in the case, or it may address an interlocutory issue, such as a motion for injunctive relief or a discovery request. Furthermore, courts have the power to grant consent judgments, summary judgments, and default judgments. In most interlocutory applications, courts will publish written reasons for their decisions. Both parties can request written reasons from the court. Occasionally, judges will deliver ex tempore judgments (orally, during the motion hearing) but publish written reasons later.


Damages are typically awarded to compensate the plaintiff for losses sustained due to the defendant’s negligence. The court can also order other damages, such as exemplary damages, restitution damages, nominal damages, and liquidated damages.


In general, although courts have discretion regarding costs orders, they usually follow the principle that ‘costs follow the event,’ meaning that if one party loses a lawsuit, the other party has to pay some of the other party’s costs.


The court has the authority to order interest on awards of damages and costs.


The enforcement

Writs of execution, garnishee orders, or charging orders can enforce domestic judgments.


Australian law governs the registration and enforcement of foreign judgments. Regulatory legislation governs Australia’s procedure and scope of enforceable judgments under the Foreign Judgments Act 1991 (Cth). In this Act, a judgment is registered straightforward and cost-­effective manner.

Unless Australia has an international agreement or the circumstances are not covered by the statute, foreign judgments can be enforced through common law.


What are the order costs?

 All proceedings are subject to the court’s broad discretion regarding costs. As a general rule, a court can order whatever costs are justifiable under the circumstances, but generally, court rules guide that decision.

In most cases, costs follow the event, which means a successful litigant receives them unless exceptional circumstances justify another decision.


Costs are usually assessed regularly for any issue in which a party prevails.

Costs can be divided into two classes:


  • Costs arise as a result of a retainer with the client or are governed by the contract (legal or client costs); and
  • Indemnity costs refer to costs that arise from a court order, which can be ordinary costs (parties or parties) or indemnity costs (lawyers or clients). A party is usually awarded indemnity costs if they engage in unreasonable behavior during the proceeding. When a settlement offer is rejected, the party can claim indemnity costs after the trial. It is not sufficient for a party to be entitled to indemnity costs by simply making an offer. Various discretionary factors are also taken into account.



Although Civil Litigation insurance is not typical in Australia, parties can obtain coverage through adverse costs insurance.


Class action

In Australia, there are essentially identical rules for representative proceedings in the federal court system and in the courts of New South Wales,  Victoria and Queensland.


There are a significant few factors:

  • It is unnecessary to certify the proceedings as appropriate to bring as a class action, which means that there is no prerequisite. After a class action is commenced, it continues until a judgment or settlement is reached, unless the defendant can convince the court to end the proceedings on precisely limited grounds.
  • Common issues do not need to take precedence over individual issues.
  • Class actions may be divided into ‘sub-groups’ or even dealt with as individual issues, as permitted by the rules.
  • Defining class members by description can be done by the representative plaintiff. Persons who meet the criteria outlined in the class definition will be class members unless they opt-out of the proceedings. When class members do not opt-out by the deadline, they are included in the proceedings. As a result, a person can be a class member without knowing it and without consenting to the results of the proceedings.


It is necessary to meet these three requirements before a claim can proceed as a representative:

  • There must be at least seven claims against the same person or persons;
  • The claims of all these persons must rise out of the same, similar or related circumstances; and
  • There must be at least one substantial common issue of law or fact for all of these claims to succeed.


Technically, public funding is available via legal aid services; however, rigorous criteria determine eligibility.


As a general rule, the public sector will not resolve commercial disputes.

However, class actions in Australia are increasingly using third-party funding as payment for claims.

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