Litigation 2025

AUSTRALIA Law and Practice Contributed by: Amanda Banton, Elliott Smith, Melissa Morgan and Paul Smith, Banton Group

1. General 1.1 General Characteristics of the Legal System The legal framework in Australia is adversarial, whereby opposing parties present their argu- ments before an impartial adjudicator, either a court or tribunal, for resolution. The adjudicator considers both sides before applying the rel- evant law to the dispute at hand. As a common law jurisdiction, Australian courts adhere to the doctrine of precedent, meaning lower courts must follow the decisions of higher courts. This principle constrains judicial decisions but still allows lower courts to evolve legal principles not yet addressed by higher courts. Though not binding, decisions from other common law nations, such as the United Kingdom, serve as comparative legal resources. Litigation typi- cally involves oral arguments presented before a court or tribunal, with the preference for oral testimony grounded in the common law principle of allowing parties to hear the case against them and enabling the court to assess witness cred- ibility. Written submissions are also commonly filed and served before hearings. 1.2 Court System Australia comprises six states (Victoria, New South Wales, Queensland, South Australia, Tas- mania, and Western Australia) and two territo- ries (Australian Capital Territory and Northern Territory), with both a federal court system and separate state and territory court hierarchies. The High Court of Australia, the apex court, covers original jurisdiction in specified areas, including constitutional matters and inter-state disputes, and appellate jurisdiction for lower court appeals. The Federal Court’s jurisdiction spans over 150 Commonwealth Acts, covering tax, corporate law, intellectual property, compe- tition law, consumer law, employment relations,

native title, and bankruptcy, and includes appel- late functions. The Federal Circuit Court handles less complex matters within the same subject areas and less complex family law disputes. Each state and territory’s Supreme Court serves as the superior court, handling both original and appellate cases with unlimited jurisdiction over civil and criminal matters. Except for Tasmania, states also have mid-tier courts called district or county courts, and lower-level courts known as magistrates or local courts, with jurisdictional limits. Specialist lists within these courts address specific areas of law, and numerous specialist Commonwealth, state, and territory courts and tribunals oversee specific subject matters. 1.3 Court Filings and Proceedings The principle of open justice mandates that court and tribunal hearings be accessible to the pub- lic to ensure transparency. However, courts can restrict public access in certain scenarios, such as suppressing evidence publication, concealing parties’ or witnesses’ identities, or excluding the public to prevent prejudice to justice or national security. Public access to court documents var- ies, with non-parties generally able to inspect certain documents in Federal Court proceedings unless confidentiality orders apply. Non-parties may apply for permission to inspect documents not typically available for public viewing. 1.4 Legal Representation in Court Only practitioners admitted to practice in the relevant state or federal jurisdiction may appear in court or make submissions without specific permission.

CHAMBERS.COM