AUSTRALIA Law and Practice Contributed by: Amanda Banton, Elliott Smith, Melissa Morgan and Paul Smith, Banton Group
3. Initiating a Lawsuit 3.1 Rules on Pre-action Conduct
3.5 Rules of Service Service requirements vary by document type and party, with court rules detailing the appro- priate methods. Generally, writs or originating applications require personal service, while ordi- nary service applies to other documents. Some courts allow service by email if authorised. 3.6 Failure to Respond Defendants must file a notice of appearance within a specified time. Failure to do so allows plaintiffs to seek default judgment without fur- ther notice. Procedures vary by court and claim type. 3.7 Representative or Collective Actions Class actions can be initiated in the Federal Court and in the Supreme Courts of New South Wales, Victoria, Queensland and Western Aus- tralia. These regimes require claims from seven or more individuals against the same defendant, arising from similar circumstances, and sharing a common legal or factual issue. Australian courts broadly interpret these requirements, and class actions proceed under an “opt-out” regime. 3.8 Requirements for Cost Estimate Australian lawyers must disclose costs and bill- ing information to clients, including estimates and calculation methods, and notify clients of significant changes. These obligations vary by jurisdiction.
Australia lacks a specific requirement for pre- action letters before initiating civil proceedings, though certain jurisdictions mandate formalities to promote quick, inexpensive, and efficient dis- pute resolution. For instance, the Federal Court requires a “genuine steps statement” under the Civil Dispute Resolution Act 2011, outlining Each jurisdiction in Australia has legislation limit- ing the period within which civil claims can be issued, typically starting from the cause of action date. Limitations vary, with most contracts and tort actions having a six-year limitation, except in the Northern Territory, where tort actions have a three-year limit. Australian courts can extend or postpone the limitation period in specific cir- cumstances, such as disability, acknowledge- ment by the defendant, or fraud. 3.3 Jurisdictional Requirements for a Defendant Australian courts have jurisdiction over for- eign defendants if proper documents are filed and served. Foreign defendants can challenge jurisdiction, with courts considering factors like the connection to the jurisdiction and potential inconvenience to the defendant. 3.4 Initial Complaint efforts to resolve the dispute. 3.2 Statutes of Limitations Civil proceedings in Australia typically begin by filing a writ or originating application and, depending on the court’s rules and the claim’s subject matter, accompanied by a claim or state- ment of claim. Amendments to filed documents require court permission or the other party’s consent.
4. Pre-trial Proceedings 4.1 Interim Applications/Motions
Parties can bring interim or interlocutory appli- cations to preserve rights or address pre-trial formalities. Interim orders, such as freezing or search orders, may be sought urgently, some- times on an ex parte basis.
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