Best Lawyers for Litigation in Australia

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Practice Area Definition

Litigation Definition

Litigation in Australia typically refers to practice in all areas of dispute resolution. The practice has developed traditionally under both common law and federal and state civil procedure legislation. 

Litigation matters vary in scope and subject matter, however, they can involve everything from contract disputes and tort claims to claims arising from breaches of specific statutes such as the corporations law and competition (anti-trust) legislation. Given the large breadth of potential disputes, many litigation practitioners will specialise in a range of niche areas such as property and construction claims, personal injury matters, employment law claims, Intellectual Property disputes, tax and finance matters, or even representing corporations and individuals in State and Federal regulatory investigations, inquests, and inquiries.

Litigation practitioners frequently act for corporate entities or individuals by: 

•   advising in relation to strategy to resolve or avoid disputes;
•   negotiating on behalf of clients in disputes to obviate the need for Court proceedings;
•   instituting Court or Tribunal proceedings which can include the drafting and preparation of documents such as Court applications, pleadings (including Statements of Claim and Defences to claims), affidavits, witness statements, and other essential procedural documentation;
•   advocating on behalf of clients before Courts or Tribunals;
•   negotiating the terms of settlement of Court proceedings; and
•   enforcing judgments of Courts or Tribunals (i.e. recovering awarded sums).

Whilst in Australia professional advocate barristers are typically “briefed” by an instructing lawyer to appear in more substantial matters, advocacy before Courts and Tribunals is not restricted to barristers and any lawyers admitted to practice in the relevant jurisdiction may appear on behalf of their clients.

A growing area of Litigation practice in Australia is acting in relation to regulatory compliance. As the sheer number of laws enacted each year (at a State and Federal level) rises exponentially, so too does the compliance burden. In this respect, practitioners are increasingly being called upon to:

•   advise in relation to general regulatory compliance;
•   respond and object to penalty notices;
•   respond to regulatory inquiries and investigations;
•   defend prosecutions;
•   negotiate with regulators to settle claims; and
•   assist to comply with and observe regulatory rulings or orders which can often involve the imposition of fines, disqualifications from office, mandatory corrective action or inaction, and even organisational restructuring.

Prosecuting regulators and government agencies with whom practitioners deal include the Australian Competition and Consumer Commission (ACCC), Australian Securities and Investments Commission (ASIC), Australian Prudential Regulation Authority (APRA), and Australian Federal Police (AFP) to name but a few. In dealing with these regulators, matters can be as diverse as breaches of company directors’ duties, insider trading, white collar crime, price-fixing, and even foreign bribery matters.

Litigation practice in Australia also encompasses Alternative Dispute Resolution (ADR), that is, the resolution of disputes outside the traditional framework of State and Federal Courts and Tribunals. This generally includes varying forms of mediation, arbitration, and expert determination. Given the high costs, delay, and adverse publicity associated with Court proceedings, many parties to commercial contracts in Australia are now insisting on the provision for ADR in contracts as an antecedent step to Court proceedings. Litigation practitioners require a sound understanding of all forms of dispute resolution in order to effectively advise their clients. The choice of resolution strategy or forum will often depend on the client’s unique circumstances, the particular area of law or both.

Litigation in Australia typically refers to practice in all areas of dispute resolution. The practice has developed traditionally under both common law and federal and state civil procedure legislation. 

Litigation matters vary in scope and subject matter, however, they can involve everything from contract disputes and tort claims to claims arising from breaches of specific statutes such as the corporations law and competition (anti-trust) legislation. Given the large breadth of potential disputes, many litigation practitioners will specialise in a range of niche areas such as property and construction claims, personal injury matters, employment law claims, Intellectual Property disputes, tax and finance matters, or even representing corporations and individuals in State and Federal regulatory investigations, inquests, and inquiries.

Litigation practitioners frequently act for corporate entities or individuals by: 

•   advising in relation to strategy to resolve or avoid disputes;
•   negotiating on behalf of clients in disputes to obviate the need for Court proceedings;
•   instituting Court or Tribunal proceedings which can include the drafting and preparation of documents such as Court applications, pleadings (including Statements of Claim and Defences to claims), affidavits, witness statements, and other essential procedural documentation;
•   advocating on behalf of clients before Courts or Tribunals;
•   negotiating the terms of settlement of Court proceedings; and
•   enforcing judgments of Courts or Tribunals (i.e. recovering awarded sums).

Whilst in Australia professional advocate barristers are typically “briefed” by an instructing lawyer to appear in more substantial matters, advocacy before Courts and Tribunals is not restricted to barristers and any lawyers admitted to practice in the relevant jurisdiction may appear on behalf of their clients.

A growing area of Litigation practice in Australia is acting in relation to regulatory compliance. As the sheer number of laws enacted each year (at a State and Federal level) rises exponentially, so too does the compliance burden. In this respect, practitioners are increasingly being called upon to:

•   advise in relation to general regulatory compliance;
•   respond and object to penalty notices;
•   respond to regulatory inquiries and investigations;
•   defend prosecutions;
•   negotiate with regulators to settle claims; and
•   assist to comply with and observe regulatory rulings or orders which can often involve the imposition of fines, disqualifications from office, mandatory corrective action or inaction, and even organisational restructuring.

Prosecuting regulators and government agencies with whom practitioners deal include the Australian Competition and Consumer Commission (ACCC), Australian Securities and Investments Commission (ASIC), Australian Prudential Regulation Authority (APRA), and Australian Federal Police (AFP) to name but a few. In dealing with these regulators, matters can be as diverse as breaches of company directors’ duties, insider trading, white collar crime, price-fixing, and even foreign bribery matters.

Litigation practice in Australia also encompasses Alternative Dispute Resolution (ADR), that is, the resolution of disputes outside the traditional framework of State and Federal Courts and Tribunals. This generally includes varying forms of mediation, arbitration, and expert determination. Given the high costs, delay, and adverse publicity associated with Court proceedings, many parties to commercial contracts in Australia are now insisting on the provision for ADR in contracts as an antecedent step to Court proceedings. Litigation practitioners require a sound understanding of all forms of dispute resolution in order to effectively advise their clients. The choice of resolution strategy or forum will often depend on the client’s unique circumstances, the particular area of law or both.