This article is part of our comprehensive resource, Litigation in Australia: a practical guide for global businesses and counsel. Download the full guide to access all insights.
Need to know
|
Australia’s economic and political stability make it a popular jurisdiction for investment, trade, tourism and innovation. One of the pillars that maintains that stability is Australia’s legal system.
The legal system is comprised of two sources of law: statute law and common law. Statute law is the legislation drafted and enacted by both federal and state governments. Common law is the body of law developed by Australia’s federal and state courts.
Australia’s court system
Laws are made by the federal and state parliaments passing legislation (statute law) and by Australian courts (common law). A decision made in a superior court is binding on all the courts below it, providing consistency and predictability of the application of the laws and creating a ‘precedent’.
The highest court in Australia is the High Court. It has original jurisdiction to hear certain matters, such as questions arising from the Australian constitution, and appellate jurisdiction to hear appeals from other courts. High Court decisions are final and binding on all lower courts.
The highest state-based court is the Supreme Court of that state. The Supreme Court usually hears the most complex disputes or claims involving large sums of money.
Decisions made by lower courts can be appealed to the court above. Certain matters, such as administrative or specialised disputes, can be heard by a tribunal instead of a court.
Federal courts usually hear disputes arising out of federal legislation, such as corporations, competition and consumer law, and state courts hear disputes arising out of state-based legislation and common law, such as property law, breach of trust and negligence. There is some overlap because the state supreme courts can exercise federal jurisdiction for certain matters, most commonly those concerning corporations law such as schemes of arrangement, restructuring and duties of directors of a company.
International litigation in Australia
International enforcement of judgments
Foreign judgments can, in some circumstances, be enforced in Australia. The process depends on the originating jurisdiction and the type of judgment that was issued. Some countries are covered by statutory registration regimes, while others require enforcement at common law (commencing fresh proceedings based on the foreign judgment). Whether enforcement is available often turns on reciprocity and jurisdictional rules.
Overlap with other common law countries
Australia’s legal system shares common law roots with the UK, US, Canada, Hong Kong, Singapore and others. It is not uncommon for regulatory issues or private litigation themes to overlap across these jurisdictions, with regulators coordinating investigations and litigants testing similar arguments in multiple forums.
Explore the full picture
Download the complete resource, Litigation in Australia: a practical guide for global businesses and counsel, and gain the insights to navigate disputes with confidence.
