What is Litigation and How Does it Work in Australia?

Author: Ian Aldridge, Progressive Legal

What is litigation?

Litigation in Australia is the formal legal process used to resolve disputes between individuals, businesses, or other entities through the court system. While it can be complex and costly, litigation is often essential to protect your legal rights, business interests, or personal reputation. Whether you’re facing a civil dispute, contract issue, or commercial litigation, this guide explains how litigation works in Australia, including key procedures, courts involved, and what to expect when navigating the legal system.

What 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: 

1. Filing a Statement of Claim or Defence with the appropriate Court or Tribunal 
2. Gathering evidence 
3. Attending pre-trial reviews 
4. Filing applications and interlocutory hearings 
5. Presenting arguments or submissions in a final hearing 
6. 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 the Alternatives to Litigation in Australia?

Litigation in Australia can be a complex, time-consuming, and expensive legal process, especially for businesses, entrepreneurs, and individuals managing ongoing commercial or civil disputes. Fortunately, there are cost-effective legal alternatives to litigation, known as Alternative Dispute Resolution (ADR) methods. These include mediation and arbitration, both of which aim to resolve issues without going to 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.

What Is Jurisdiction in Litigation, and Why It Matters

In Australian litigation law, jurisdiction determines which court or tribunal has the legal authority to hear and resolve your dispute. Whether you’re dealing with a civil litigation case, a contract dispute, or an intellectual property issue, jurisdiction plays a vital role in ensuring your matter is handled lawfully and fairly.

1. Correct Court, Fair Process
   Jurisdiction ensures that your litigation is heard in the appropriate legal forum based on the nature of your case, such as Federal or State courts. This means the dispute is handled under the correct laws, helping to ensure fair treatment and a just outcome.

2. Prevents “Forum Shopping”
   Jurisdiction blocks parties from trying to manipulate outcomes by choosing courts they believe may be more favourable to them. If a court doesn’t have jurisdiction, the case cannot proceed there, protecting both businesses and individuals from unfair legal tactics.

3. Limits on Overreach by Courts and Tribunals
   Jurisdiction keeps courts operating within the boundaries of the law. This maintains judicial integrity and prevents decisions from being made outside of legal authority, vital in high-stakes commercial or civil litigation.

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? 

In Australian litigation law, understanding the difference between a Court and a Tribunal is essential, especially if you’re a business owner, entrepreneur, or individual involved in a civil dispute or facing a legal issue that requires resolution. While both Courts and Tribunals handle legal matters and make binding decisions, they operate very differently in practice, authority, and formality.

A Court is a formal government institution responsible for resolving legal disputes and enforcing the law. Courts deal with a wide range of legal areas, including civil litigation, criminal law, and administrative matters. Court cases are overseen by a judge, and decisions can result in penalties, fines, or even imprisonment. Courts follow strict procedural rules, which can make the litigation process more structured but also more time-consuming and costly.

Tribunals, on the other hand, are independent or quasi-governmental bodies created to resolve specific types of legal issues, usually under administrative law. These may include disputes related to employment, tenancy, discrimination, consumer rights, or immigration. Instead of a judge, Tribunal hearings are often led by a panel of experts with specialised knowledge in the relevant field. While Tribunal decisions are legally binding, the process is generally quicker, more informal, and more accessible, designed to help everyday people resolve legal issues without the complexities of full court proceedings.

Another key distinction is that Courts have broad jurisdiction and can hear a variety of legal matters, while Tribunals have limited jurisdiction and only hear specific types of cases. This means a civil dispute involving breach of contract or intellectual property, for example, would be heard in Court, while a consumer complaint about a faulty product might be taken to a Tribunal.

For individuals and businesses navigating the legal system, choosing the right forum is critical. Engaging with a Court or Tribunal that lacks the appropriate jurisdiction can result in delays, increased costs, or even dismissal of the case. That’s why understanding the difference between Courts and Tribunals isn’t just theoretical, it can directly impact the outcome of your litigation strategy.

If you’re unsure whether your legal issue belongs in Court or should be handled by a Tribunal, seeking early advice from a qualified litigation lawyer can help you avoid costly missteps and ensure your matter is resolved efficiently and fairly.

What are the risks and rewards of litigation?

Before pursuing litigation in Australia, it’s essential to weigh the potential risks and rewards, especially if you’re a business owner, entrepreneur, or individual involved in a civil dispute. Whether you’re considering commercial litigation, contract enforcement, or a personal grievance, understanding both sides of the legal process helps you decide whether litigation is the right path or if a more cost-effective legal solution is available.

Risks of litigation

While litigation can offer legal clarity, it also carries several challenges. First and foremost is the financial cost. Legal proceedings often involve significant expenses, including court filing fees, legal representation, expert witness fees, and other administrative charges. These can escalate quickly, making litigation a considerable investment, particularly for small businesses.

In addition to the cost, civil litigation is rarely quick. Many disputes can take months or even years to resolve, with delays arising from court scheduling, evidence gathering, or appeals.

There’s also the uncertainty of outcomes. Even with strong legal grounds or compelling evidence, court decisions can be unpredictable, and there’s always a chance of an unfavourable ruling.

Lastly, litigation is a public process, meaning sensitive financial or reputational information may become part of the public record. This could expose personal or commercial details that affect your brand, customer trust, or long-term partnerships.

Rewards of litigation

Despite these risks, litigation can provide powerful legal advantages, especially when your rights or business interests are at stake. A successful case may result in:

• Monetary compensation for financial loss
• Injunctions or court orders to stop harmful activity
• Specific performance of a breached contract or agreement

In many cases, civil litigation offers a legal resolution that alternative methods like mediation or arbitration may not. Most importantly, court judgments are legally binding and enforceable, ensuring the losing party complies and your dispute is formally and conclusively resolved.

When Is Litigation the Best Option?

Litigation is often the most effective legal path when a dispute involves complex legal questions, significant financial risk, or uncooperative opposing parties. In scenarios where judicial interpretation is required to resolve ambiguity in contracts, laws, or business agreements, litigation provides a binding, court-enforced outcome that other resolution methods may not.

It is particularly appropriate when a dispute involves high-value commercial interests, breach of contract, intellectual property infringement, or critical reputational damage. In such cases, the formality, authority, and enforceability of civil litigation can protect your rights, secure compensation, or stop further harm through injunctions or court orders.

Litigation may also be the best route when the other party refuses to negotiate or participate in alternative dispute resolution. A court order can compel compliance, helping you move forward with certainty and legal protection.

If you’re weighing whether litigation is the right course of action, consulting with an experienced litigation lawyer can provide the legal clarity and strategic insight you need. Every case is unique, professional guidance ensures you’re choosing the path that best aligns with your goals, budget, and risk exposure.

Key takeaways

Navigating litigation in Australia can be complex, costly, and emotionally draining, especially for small businesses, startups, or individuals facing serious civil or commercial disputes. Every case is different, and outcomes depend heavily on the court, jurisdiction, and legal procedures involved. That’s why it’s critical to understand the litigation process and explore all available options, including Alternative Dispute Resolution (ADR) methods like mediation and arbitration.

When you understand how litigation law works, what courts handle which disputes, how jurisdiction impacts your case, and when ADR may be a better fit, you’re empowered to make smarter, more strategic legal decisions. Whether you’re trying to enforce a contract, protect your business reputation, or resolve a partnership disagreement, legal guidance makes all the difference.

Don’t navigate litigation alone. If you’re unsure about your next steps or need help evaluating the best legal pathway for your situation, we’re here to help.

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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