16 Mar What is Litigation and How Does it Work in Australia?
Author: Ian Aldridge, Progressive Legal
What is litigation?
Litigation is the legal process of resolving disputes between two or more parties through the Court system. In Australia, litigation can be a complex and expensive process, but it is often necessary to protect your rights and interests or that of your business. This article provides a guide to litigation in Australia, including the procedures, Courts, and legal processes involved.
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REQUEST OUR ADVICEWhat are the different types of litigation?
Litigation in Australia can be broadly categorised into two main types: civil litigation and criminal litigation. Each type addresses different legal issues and follows distinct procedures.
Civil litigation
Civil litigation is the most common type of litigation in Australia and can involve a wide range of disputes between individuals, businesses or other entities. Here are some common examples of these kinds of disputes:
- Breach of contract or when someone doesn’t fulfill the terms in your business agreement
- Property disputes arising from conflicts over ownership and boundaries
- Employment disputes such as unlawful termination and workplace discrimination
Criminal litigation
Criminal litigation, on the other hand, involves charges brought against an individual or entity by the state or federal government for alleged criminal offences. This leads to penalties such as fines, imprisonment, or community service. Some common offences include:
- Theft and Burglary
- Assault and violent crimes
- Drug offences
- Fraud and white-collar crimes
- Traffic violations
Note: at Progressive Legal, we don’t deal with criminal matters. If you’re facing criminal charges or in a criminal related dispute, please get in touch with a criminal lawyer.
In both civil litigation and criminal litigation, the procedures involved can be complex and require expert legal advice and sometimes other experts, including barristers who are Court advocacy experts.
What is the litigation process in Australia?
Litigation procedures in Australia depend a lot on the type of dispute being heard (i.e. decided) and the particular Court in which it is being heard.
In general, the litigation process involves:
- Filing a Statement of Claim or Defence with the appropriate Court or Tribunal
- Gathering evidence
- Attending pre-trial reviews
- Filing applications and interlocutory hearings
- Presenting arguments or submissions in a final hearing
- The delivery of a judgment by a judge or jury
To learn more about the civil litigation process in detail, visit our page on: ‘Understanding Civil Litigation in Australia’.
What are the courts in Australia where litigation cases are heard?
Australia has a Federal Court system and a State/Territory Court system. The Federal Court system deals with matters that fall under federal jurisdiction, such as bankruptcy, corporations law, and intellectual property.
The State/Territory Court system deals with matters that fall under state or territory jurisdiction, such as personal injury claims, family law, and criminal cases.
The Federal Court System
The Federal Court system in Australia is comprised of the High Court of Australia, the Federal Court of Australia, and the Family Court of Australia.
The High Court is the highest court in the country and hears appeals from lower courts.
The Federal Court deals with a wide range of matters, including commercial disputes, intellectual property, and administrative law.
The Family Court deals with family law matters such as divorce, child custody, and property settlement.
The State/Territory Court System
The State/Territory Court system in Australia is comprised of various courts such as the Supreme Court, District Court, and Local Court.
The Supreme Court is the highest court in each state or territory and hears the most serious cases. The District Court deals with more serious criminal and civil cases, while the Local Court deals with minor criminal and civil matters.
What are alternative methods to litigation?
Litigation in Australia can be a lengthy and expensive process, which is why alternative dispute resolution (ADR) methods such as mediation and arbitration are becoming increasingly popular. ADR methods involve a neutral third party who helps the parties to reach a settlement outside of Court.
Mediation
Mediation is a common form of ADR in Australia and involves a mediator who helps the parties to identify issues, discuss options, and reach a mutually agreeable settlement. Mediation can be voluntary or Court-ordered, and it is often faster and less expensive than litigation. The mediator does not make a decision but facilitates communication and negotiation between the parties. Notably, some litigation cases will have mandatory mediation.
Arbitration
Arbitration is another form of ADR in which an Arbitrator (just like a Judge) makes a decision based on the evidence presented by the parties. The decision of the arbitrator is usually binding and final, and the parties waive their right to appeal. Arbitration is often used in commercial disputes and other situations where parties prefer a private and potentially faster resolution.
ADR vs Litigation
ADR, like mediation and arbitration, is often more cost-effective, faster, and flexible compared to traditional litigation, which can be long, expensive, and confrontational. ADR is ideal when parties want to maintain their relationships, need confidentiality, or prefer a specialist to handle technical disputes. It also allows parties to have more control over the outcome and work collaboratively toward a solution.
On the other hand, litigation is necessary for complex legal issues that need judicial intervention or when a binding public judgment is required. In some cases, litigation can’t be avoided and this is when it’s crucial to get advice from an experienced litigation lawyer.
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REQUEST OUR ADVICEWhat is jurisdiction in litigation?
Jurisdiction is important in litigation for several reasons. First, it ensures that cases are heard in the appropriate forum, which can help to ensure that the case is decided based on the relevant laws and procedures. This helps to ensure that justice is served and that parties are treated fairly.
Second, jurisdiction helps to prevent forum shopping, which is the practice of choosing a Court or Tribunal based on the belief that it will be more favourable to a particular party’s interests. If a Court lacks jurisdiction over a particular case, parties cannot engage in forum shopping to try to obtain a more favourable outcome.
Third, jurisdiction helps to ensure that courts and tribunals do not overstep their bounds and exceed their authority. This helps to ensure that the rule of Law is respected and that judicial decisions are made within the limits of the Law.
In summary, jurisdiction is a crucial aspect of litigation because it ensures that cases are heard in the appropriate forum, helps to prevent forum shopping, and ensures that Courts and Tribunals do not overstep their bounds. Understanding jurisdiction is essential for anyone involved in litigation, whether as a party to a dispute, a Lawyer, or a Judge.
Subject Matter Jurisdiction
Subject matter jurisdiction refers to a Court’s authority to hear cases that fall within its defined scope of authority.
For example, a Family Court may have jurisdiction over cases involving divorce and child custody, while a Criminal Court may have jurisdiction over cases involving criminal offences.
If a Court does not have subject matter jurisdiction over a particular case, it cannot hear the case and must dismiss it.
Personal Jurisdiction
Personal jurisdiction, on the other hand, refers to a Court’s authority to exercise power over a particular person or entity.
In general, a Court will have personal jurisdiction over a party if that party has sufficient contacts with the jurisdiction in question, such as living or doing business in that jurisdiction.
If a Court does not have personal jurisdiction over a particular party, it cannot make a binding decision that affects that party’s rights or interests.
What is the difference between a Court and a Tribunal?
Courts and Tribunals are two distinct bodies that serve different legal purposes. Here are the key differences between them:
A Court is a government body responsible for settling legal disputes and enforcing laws. Judges preside over courts, which have broad jurisdiction over criminal, civil, and administrative law. They can impose penalties, fines, and prison sentences, and their decisions are legally binding.
Tribunals, on the other hand, are non-governmental bodies established to settle specific disputes related to administrative law. They are typically presided over by a panel of experts or experienced individuals with specialised knowledge in a particular area. Tribunals have limited jurisdiction and can only hear cases related to specific areas of law, such as employment, environmental, or consumer law. Their decisions are also legally binding.
Courts and Tribunals differ in their formalities as well. Courts have more formal procedures and follow strict rules of conduct, whereas Tribunals may have more relaxed procedures that are designed to be user-friendly.
In summary, Courts and Tribunals have different legal jurisdictions and serve different functions. Courts have broader jurisdiction over legal disputes, while Tribunals have limited jurisdiction over specific areas of law. Courts are generally more formal and follow strict procedural rules, while Tribunals may have more relaxed procedures. Both play an important role in the administration of justice and the resolution of legal disputes.
What are the risks and rewards of litigation?
Before deciding to pursue litigation, it is crucial to understand the associated risks and rewards to determine if it is the best choice for your circumstances.
Risks of litigation
Litigation involves several risks. As we’ve discussed, it can be expensive, with costs including court fees, legal fees, expert witness fees, and other administrative expenses. These costs can quickly add up, making litigation a real financial burden.
The process can also be time-consuming, often taking months or even years to resolve. Also, despite strong evidence or a compelling case, there is always a risk of an unfavourable outcome because of the unpredictability of court decisions.
Public litigation can also expose sensitive information, potentially damaging personal or business reputations, with long-term consequences.
Rewards of litigation
Litigation also offers several rewards. It can provide definitive legal remedies such as monetary compensation, injunctions, or specific performance, effectively addressing any grievances you may have had coming into it.
Court judgments are legally binding and enforceable, ensuring compliance from the losing party and providing a clear resolution to the dispute.
When is litigation the best choice?
Under certain circumstances, litigation may be the best option. When disputes involve complex legal questions requiring judicial interpretation, litigation may be necessary to obtain a clear and binding resolution.
If the dispute involves significant financial sums or critical personal/business interests, the formal process and enforceability of litigation might be preferable. When the opposing party is uncooperative or unwilling to negotiate, litigation can compel compliance through legal means.
Consulting with experienced legal professionals can provide valuable insights into whether litigation is the best option for your specific circumstances.
Key takeaways
Litigation is a complex process that requires expert legal advice and representation. In Australia, litigation procedures, Courts, and legal processes can vary depending on the type of case and the Court in which it is being heard. Alternative dispute resolution methods such as mediation and arbitration are becoming increasingly popular as a way to resolve disputes outside of Court.
By understanding the procedures, Courts, and legal processes involved in litigation in Australia, you can make informed decisions about your legal rights and options. It is strongly advised to consult an expert litigation lawyer prior to the commencement of legal proceedings.
Contact us for expert litigation advice – If you need expert litigation legal services, please get in touch with us today via phone or by requesting our advice below.
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REQUEST OUR ADVICELitigation in Australia FAQs
Why is jurisdiction important in litigation?
Jurisdiction is a fundamental concept in litigation because it determines whether a Court or Tribunal has the power to hear and decide a particular litigation case.
In simple terms, jurisdiction refers to the legal authority of a Court or Tribunal to make decisions that are binding on the parties to a dispute.
There are two main types of Jurisdiction:
- subject matter jurisdiction, and
- personal jurisdiction.
What does the phrase if you represent yourself, you have a fool for a client mean?
The phrase “If you represent yourself, you have a fool for a client” is a common idiom in the legal profession that suggests that individuals (even lawyers and barristers) who choose to represent themselves in Court proceedings are likely to make mistakes and face negative consequences as a result.
Litigation can be stressful and having someone independent from that emotion can be of great assistance to the case.
In other words, the phrase is meant to convey the idea that representing oneself in court is generally a bad idea and can result in negative outcomes. This is because the legal system is complex and can be difficult to navigate without the assistance of a trained and experienced legal professional.
Individuals who represent themselves in Court may not be familiar with the rules of evidence and procedure, may have difficulty presenting their case effectively, and may not be able to fully understand the legal implications of the decisions they make.
This can lead to unfavourable outcomes in Court, such as losing a case, being subject to penalties or fines, or facing other negative consequences.
While the phrase is sometimes used in a humorous or light-hearted way, it serves as a reminder of the importance of seeking professional legal assistance when navigating the legal system.
Do the Laws of Evidence apply strictly in Tribunals?
In Australia, the laws of evidence generally apply in tribunals (but not strictly), although there may be some differences in the application of these rules compared to Courts.
Tribunals in Australia are subject to the principles of natural justice, which require that parties be given a fair hearing and be able to present their case. This includes the right to present evidence in support of their case.
However, Tribunals are often less formal than Courts and may have more relaxed rules of evidence. For example, in some tribunals, hearsay evidence may be admitted, whereas in a court of law hearsay evidence is generally not admissible.
The rules of evidence that apply in a tribunal will depend on the specific legislation that created the tribunal and the nature of the case being heard. For example, the rules of evidence in an environmental tribunal may be different from those in a workers’ compensation tribunal.
In some cases, tribunals may have the power to depart from the strict rules of evidence in order to achieve a just outcome. For example, a Tribunal may allow evidence that is relevant to the case, even if it would not be admissible in a Court of Law.
Overall, while the laws of evidence do generally apply in tribunals in Australia, there may be some differences in the application of these rules compared to Courts, and the specific rules will depend on the legislation and nature of the case being heard.
What are the costs of litigation?
Litigation can be costly. This is why getting a grasp of the financial implications is crucial when going down this route.
The costs involved in litigation include various fees and expenses such as court filing fees, legal fees for solicitors and barristers, costs for expert witnesses, and other administrative expenses. These costs can add up quickly, making litigation an expensive option for resolving disputes.
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01 February, 2024
18 January, 2024
Ian Aldridge is the Founder and Principal Lawyer Director at Progressive Legal. He has over 15 years experience in advising businesses in Australia and the UK. After practising in commercial litigation for 12 years in major Australian and International Law Firms, he decided to set up a NewLaw law firm in Australia and assist growing Australian businesses. Since then, he has advised over 2,500 small businesses over the past 6 years alone in relation to Intellectual Property Law, Commercial, Dispute Resolution, Workplace and Privacy Law. He has strived to build a law firm that takes a different approach to providing legal services. A truly client-focused law firm, Ian has built Progressive Legal that strives to deliver on predictable costs, excellent communication and care for his clients. As a legal pioneer, Ian has truly changed the way legal services are being provided in Australia, by building Legal Shield™, a legal subscription to obtain tailored legal documents and advice in a front-loaded retainer package, a world-first. He has a double degree in Law (Hons) and Economics (with a marketing major). He was admitted to the Supreme Court of NSW in 2005.
