Australia litigation guide
Simon Burnett, Ashley Black and Max Bonnell
Mallesons Stephen Jaques
Tel: +61 2 9296 2000 Fax: +61 2 9296 3999 Website: www.mallesons.com
The Commonwealth of Australia is a federation with political divisions at a federal, state and local level and litigation may involve consideration of relevant federal and state laws and regulations, as well as the common law.
Depending on the relevant jurisdiction, litigious matters in Australia may be heard in the Federal or State Supreme Courts, and representation at superior courts is generally undertaken by barristers, with instructing solicitors. Australia also has a number of specialist bodies that have the power to hear disputes in specific areas, such as the Administrative Appeals Tribunal in the case of administrative decisions, or the Takeovers Panel for disputes concerning control transactions in widely held Australian entities.
Over the last 10 years, there has been a shift in case management practices towards increasing accessibility and convenience for parties. To this end, the Federal Court of Australia now accepts electronic filing, and makes information regarding proceedings available online, including copies of orders made in proceedings, a list of court events, and lists of documents filed by each party. Courts have also developed protocols in Australia relating to electronic discovery of documents, with such protocols providing that documents must be in a text searchable form.
Remedies
Remedies available in Australian courts may arise under statute or through common law or equity. Some remedies are available as of right, whereas others are discretionary to the court granting relief. Although the primary remedy available in Australia is a compensatory order to pay damages, other available relief includes: nominal, exemplary or aggravated damages; rights of rescission of contract; declarations; restitution; and specific relief.
Australian courts also recognise categories of urgent relief, which include interlocutory orders, interim injunctions, Mareva injunctions, and Anton Piller Orders.
Enforceability of foreign judgments
The entitlement to recognise and enforce a foreign judgment in Australia arises both under the common law and through legislation. The federal Parliament of Australia passed the Foreign Judgments Act 1991 (Cth), which follows the general form of the UK Foreign Judgments (Reciprocal Enforcement) Act 1933. The Act applies to the enforcement of money judgments rendered in first instance in superior courts of those countries listed in the regulations, including France, Germany, Hong Kong, Israel, Japan, Korea, New Zealand, Papua New Guinea, Singapore, Sri Lanka, Taiwan, and the UK. Where expressed in the regulations, the Act also extends to judgments rendered by specified inferior courts of listed countries.
Once registered under the Act, a judgment has the same force and effect – and proceedings may be taken thereon and control exercised over it – as if it had been originally given in the court of registration.
Arbitration
Aside from formal litigation, arbitration is one of the oldest means of dispute resolution in Australia and is conducted under two separate statutory regimes. Domestic arbitration (conducted between Australian parties) is governed by State legislation. During the 1980s, each State and Territory of Australia passed essentially uniform legislation termed the Commercial Arbitration Act. These acts provide certainty and a common set of rules, and are invoked where Australian parties have entered into an ‘arbitration agreement’. This is defined as “an agreement in writing to refer present or future disputes to arbitration”. The Act will also operate where a court has been vested with power under legislation to refer a matter to arbitration (which can, in certain courts, be done without the consent of the parties).
Australia is also a forum for international arbitrations, and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards came into force in Australia in 1975. Australia is also a signatory to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which came into force in Australia in 1991. The International Arbitration Act 1974 gives effect to Australia’s obligations under the New York Convention; applies to arbitrations conducted in Australia involving at least one party foreign to Australia; and provides that the UNCITRAL Model Law on International Commercial Arbitration has the force of law in Australia.
ADR
Alternative dispute resolution is a rapidly expanding area in Australian practice, and a wide range of processes are available to parties, including negotiation, mediation, evaluation and conciliation. Such processes can be taken by parties at their own discretion, or may otherwise be mandated or managed by the courts.
Presently, there are a number of organisations in Australia that provide ADR services such as accreditation. These organisations include the Institute of Arbitrators and Mediators of Australia (IAMA), Lawyers Engaged in Alternate Dispute Resolution (LEADR) and the Australian Mediation Association (AMA). Along with the Law Council of Australia, they have each developed codes of conduct.