Litigation Guide Australia Explained

Litigation guide Australia provides a practical overview of how litigation works for both individuals and businesses, outlining key steps, legal processes, and how to approach disputes in 2026.

What Is Litigation?

Litigation is a formal process in law used to resolve disputes, generally through a court based system. If parties cannot resolve their disputes through negotiation, mediation or other non-binding forms of determination, and one party still seeks a resolution, they may commence an action, or a case, in a court or tribunal, seeking assistance. This is usually undertaken by filing a claim with the court (or tribunal), and the name of the document used to initiate the claim varies by jurisdiction.

For example, in Western Australia, the claims in the superior courts are usually commenced by writ (or originating process in limited circumstances). Whereas, in Queensland, they are commenced by Claim, and in New South Wales, generally by Statement of Claim (which itself is a distinct type of document).

Once the claim is filed, the court then manages the dispute according to its established procedural rules up to a final hearing, after which it will make a final, binding decision.

Litigation occurs in many different types of situations. Examples include: commercial disputes, employment issues, payment disputes (such as debt recovery), construction disputes, and more personal issues, such as defamation claims or breaches of privacy.

It is important to understand the nature of litigation before you commence proceedings, as litigation is stressful, time-consuming, complex and can be costly.

Purpose of litigation

The primary purpose of litigation is to resolve disputes between two (2) or more parties through a court managed process and in accordance with legal procedures and precedents. However, the aim of all litigation processes is generally the same, namely, the efficient and cost-effective resolution of disputes in a timely manner.

Courts, which set out and manage litigation processes, have been around for a millennia and exist to:

• enforce contracts and other statutory or common law duties and obligations;
• determine legal rights and obligations;
• resolve factual disagreements and disputes; and
• provide suitable remedies to the successful party, such as damages (that is, compensation), injunctive relief, declarations, amongst many other types of remedies.

Types of litigation

There are many types of litigation. However, several categories of litigation include:

1. Civil litigation

Civil litigation generally involves disputes between individuals, businesses or organisations of a more personal nature. Common examples include:

• Contract disputes;
• Debt recovery;
• Property or residential leasing disputes;
• Negligence claims;
• Defamation claims;
• Privacy breaches;
• Employment issues; and
• Trespass claims.

2. Commercial litigation

Commercial litigation is focused more on business to business related disputes, such as:

• Shareholder disputes;
• Shareholder oppression claims;
• Corporate disputes;
• Supply issues and disputes;
• Intellectual Property infringement;
• Passing off claims;
• Breach of commercial agreements; and
• Partnership disputes.

3. Government disputes

Administrative litigation is another subset of litigation, usually involving government departments of agencies, and usually handled by a specialist tribunal which reviews a government decision. Certain types of administrative disputes include:

• Disputes with local government agencies;
• Failures to grant a permit or building approval;
• Migration issues, such as visa cancellations, revocations or refusals;
• Human-rights issues, such as breaches of anti-discrimination laws; and
• Professional regulatory body reviews, such as those involving doctors.

A simplified overview of the litigation process

According to the Australian Law Reform Comission, the civil litigation process in Australia is governed by rules of court and procedural law. While the litigation process will depend on many factors, such as the jurisdiction the claim is in, and the particular court of tribunal it is commenced in, a simple overview of the process is provided below.

1. Pre-litigation

These are the steps that occur before the case is filed with the court. It includes:

• Attempting to resolve the dispute, whether by yourself or in conjunction with a lawyer;
• Contacting a lawyer for initial advice and assistance;
• If compensation is claimed, for example, for breach of contract or negligence, sending a letter of demand;
• Attending an informal settlement conference, to discuss the issues in dispute and attempting to reach a compromise or resolution;
• Obtaining advice on your claim.

If the above does not result in a satisfactory outcome, then the next step is to commence proceedings.

2. Commencing proceedings

This is the stage where you collect and collate your evidence, and then file the necessary documents, such as the writ and the statement of claim with the court, and pay the filing fee. The usual process is:

• Provide your lawyer with your instructions and supporting documents;
• Your lawyer will then draft the necessary documents and file them with the court, along with payment of the filing fee;
• After the court has stamped the documents, a copy will need to be served on the defendants or respondents (as the case may be) in accordance with the rules of service.

3. Defending proceedings

After the claim has been served, the defendant(s) will usually need to file an appearance to the claim, and thereafter, file a defence, setting out why they say they are not liable and the plaintiff’s (or claimant’s) case should not succeed. A defence must usually:

• admit an allegation;
• not admit an allegation (and in certain jurisdictions, give reasons for the non-admission); or
• deny the allegation, and plead the reasons why the allegation is wrong.

The appearance and the defence will then need to be served on the plaintiff by the defendant.

4. Discovery and evidence

Once the pleadings have come to a ‘close’, which occurs when both a statement of claim and a defence have been filed, and sometimes, when a reply has been served, the parties will need to exchange discovery, usually by way of list, which sets out the documents that they have in their possession which are relevant to any material fact or issue in dispute, along with filing witness statements.

Types of documents which are usually included in discovery include:

• Commercial agreements, such as contracts or deeds;
• Correspondence, such as emails, letters, text messages, etc;
• Reports, such as engineering reports or medical reports and documents;
• Financial records, such as bank statements, profit and loss statements, etc; and
• Government records, such as company searches, patents, trademarks, etc.

5. Interlocutory applications

During the course of the proceedings, the parties may also wish to take additional steps, such as:

• Applying for security for costs, which, if granted, requires a plaintiff, usually a corporate plaintiff, to deposit security into the court or another nominated trust account to cover a defendant’s costs;
• Summary dismissal;
• Preliminary question determination (such as the question of serious harm in defamation proceedings); and
• Applications to strike out pleadings, or to amend pleadings.

6. Alternative dispute resolution

Courts strongly encourage settlement throughout the litigation process and will usually make orders that the parties attend and attempt a mediation or other settlement conference process before the court will list the matter for trial.

7. Final hearing

Once the parties have carried out all of the necessary steps to get the matter ready for trial, and when there are no interlocutory applications or other steps which either of the parties wish to make, the matter will usually be deemed ready for trial.

It is at this stage that the court will usually list the matter for a trial listing hearing and at that hearing, the court will list the matter for trial on dates which are convenient to it, and the parties or their legal representatives.

The trial, or final hearing, consists of, amongst other things, the following stages:

• Opening statements;
• Evidence in chief;
• Cross examination;
• Legal argument and objections; and
• Closing submissions.

8. The judgment

Notwithstanding that the trial has taken place, the parties may still settle the dispute at any point up until the court commences to hand down its judgment.

The judge will usually inform the parties that the judgment is ready, and in certain circumstances, will provide the parties with a draft copy of the judgment and orders 48 hours before it has listed the matter for hearing of the judgment.

It is at this hearing that the judge who heard the matter will give judgment, make any necessary orders, and set out their reasons for their decision.

9. Enforcement

Depending on the nature of the orders made by the court, if the other party does not comply (or, in certain circumstances, cannot comply), it will be necessary to enforce the orders and this is carried out using the court’s enforcement processes and procedures.

Costs of litigation

Litigation can be expensive. So it’s important to bear this in mind before commencing legal proceedings. Types of costs in litigation include:

• Your own legal costs;
• The legal costs of the other party (if they are successful);
• Court fees;
• An award of damages; and
• Other costs, such as expert witness fees, conduct money for subpoenas, trial listing fees, application fees, etc.

Risks and benefits of litigation

Benefits

• A binding, enforceable outcome;
• Access to legal remedies unavailable outside court; and
• Development of legal precedent.

Risks

• Significant financial cost;
• Time delays;
• Stress and uncertainty; and
• Adverse cost orders.

Alternatives to Litigation

Courts increasingly promote alternative dispute resolution processes. Examples include:

• Mediation;
• Arbitration;
• Conciliation; and
• Negotiated settlements.

Choosing the Right Lawyer for Litigation

An effective litigation lawyer should:

• Provide realistic advice about the prospects and merits of success of your claim at various stages throughout the proceedings, as they may change;
• Understand procedure and procedural strategy;
• Focus on cost-effective outcomes, such as negotiated settlement options; and
• Keep settlement opportunities front of mind.

Frequently Asked Questions (FAQs)

What does litigation mean in simple terms?

Litigation is the process of resolving a legal dispute through the court system, where a judge (and sometimes a jury) makes a binding decision.

How long does litigation usually take?

Litigation can take anywhere from several months to several years, depending on the complexity of the case, court availability, and whether the matter settles before reaching trial.

Is litigation expensive?

Litigation can be costly, particularly if it proceeds to trial. Legal costs vary depending on the issues in dispute, the complexity of the matter, the volume of documents or witnesses involved, the length of the trial, and whether interlocutory applications are made.

Do all litigation matters go to trial?

No. Most litigation matters settle before trial, often through mediation or other formal or informal negotiation processes, such as Calderbank offers or offers of compromise made under court rules.

Can I represent myself in court matters?

Self-representation is possible in some cases, but there are exceptions, including where the party is a corporation, which must usually be legally represented. Litigation involves complex rules and procedures, so legal advice and representation are strongly recommended.

What is the difference between litigation and mediation?

Litigation involves a court making a binding decision after formal legal proceedings. Mediation is a voluntary process where a neutral mediator assists parties to discuss their dispute with the aim of resolving it without the need for a court to determine the outcome.

What happens if I lose in litigation?

If you lose, the court will usually order you to pay the other party’s legal costs in addition to your own. This is based on the general principle that costs follow the event.

Contact Us