Litigation in Victoria, Australia
I’ve been fortunate enough to visit Australia a few times, and it is a fascinating country that serves as an interesting counterpoint to the United States. It is another former British colony that adopted the common law system, but modified it in ways that distinguish it from America.
To learn more about litigation in the state of Victoria in Australia, I recently spoke with Meghan Warren, a litigator at Burke & Associates in Melbourne. I thought she was uniquely well suited to speak with me about Australian litigation since she is also admitted to the bar in New York.
Why should you continue to read this post about litigation in Victoria?
Most of your knowledge of the Australian legal process comes from an episode of the Simpsons
You’re curious about how another country divides its disputes between state and federal courts.
This interview has more hyperlinks than many of the others!
Background
is a principal at
in Melbourne, Australia. This interview has been lightly edited.
Can you tell me about the kinds of disputes you handle in your legal practice?
My practice involves civil disputes, mostly in the commercial space, involving small to medium enterprises, owners of small to medium enterprises, and / or business people.
It involves mostly: corporate disputes, shareholder disputes, contractual disputes, breach of fiduciary duty claims, ownership disputes, intellectual property disputes, investment disputes, and commercial leasing and building disputes.
My practice broadly has a focus on clients in the health, medical and / or life sciences industries.
Besides Microsoft Office, what software do you use in your practice?
Predominately, we use Practice Evolve, HotDocs / SoftDocs, Settify and a wealth of digital legal research tools.
We are currently looking at a number of different project management tools, project scoping tools and further automation and workflow tech to potentially adopt.
What books and websites do you use for legal research?
I use AustLii (the Australasian Legal Information Institute), Jade, ComLaw, and the Victorian Legislation and Parliamentary Documents website. My firm’s membership to the Law Institute of Victoria gives us access to a wealth of legal resources via the LIV Library both in hard copy and digital form (such as historical legislation, Lexis Red titles and various legal research eBooks). I also use the Supreme Court of Victoria Library, barristers’ resources, and many law books and case law reports in our office.
Are the disputes you work on generally in Victoria court or in federal court?
Mostly in Victorian State Courts, which include the Magistrates Court, County Court and Supreme Court.
In my practice, Federal Court cases arise less frequently. Although the Federal Court hears commercial and corporations cases, the process tends to be simpler and outcomes more fast-tracked for the parties in commercial matters in the Supreme Court, given the Supreme Court’s specialised Commercial Court.
Do Australian courts permit litigants to file documents electronically or must they go to the courthouse and deliver papers?
All of our courts are digital now with respect to filing of documents. You can go to the courts physically to file documents, but the courts prefer this to be done digitally and some courts / lists / particular applications (such as filing probate applications in the probate list) can now only be done electronically.
In light of COVID-19, the ability for physical filing at the court is further restricted, particularly in Victoria currently where we are in Stage 4 COVID-19 restrictions.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
Complaints tend to be around 10 – 15 pages, on average, but it really just depends how complex the proceeding is or not.
The Supreme Court of Victoria's Commercial Court does impose a number of limitations on pleadings and submissions, such as the limitation of no more than five A4 pages for interlocutory application and trial submissions. Limitations may also be imposed in the Commercial Court on the number of witnesses to be called at trial, and time spent on opening addresses, presentation of a party's case and closing addresses.
Our pleadings are not published to the public, as ones in the United States usually are.
Generally speaking, how long does it take for a case to go from complaint to judgment?
That's a tough one. It really is dependent on so many things, but mostly the court or tribunal you are in and their caseload at the time.
COVID-19 has extended the "normal" average time too, particularly in Victoria as we are still in Stage 4 restrictions (the most stringent we have had so far).
Does Australia have specialized commercial courts?
Yes, within our Supreme Court of Victoria, we have The Commercial Court, which is a specialist part of the Supreme Court which hears more complex commercial disputes.
The Court aims to resolve matters in a timely way by flexibly allocating resources, intensive and active judicial case management and fixed trial dates, where possible. It manages a diverse range of commercial disputes, including:
Proceedings arising out of commercial transactions or commercial dealings, including claims in contract, misleading or deceptive conduct under the Australian Consumer Law, breach of fiduciary duties and breach of trust.
Proceedings where a remedy is sought under the Corporations Act and the ASIC Act.
Proceedings relating to technology, engineering and construction.
Proceedings of a commercial nature relating to insurance, intellectual property, banking and finance.
Proceedings requiring the Court’s assistance to support an arbitration, enforce an award or review a decision.
Proceedings relating to taxation recovery.
Proceedings relating to loss or damage to a ship or by a ship, or to goods carried by sea.
Are commercial disputes in Australia decided by juries?
No. They are decided by a judge alone.
I understand that in Australia, you cannot interview opposing witnesses before trial. Is that true?
That is correct in civil cases. This can, however, be done at the committal hearing stage (prior to trial) in criminal proceedings.
Does that mean that there are a lot of surprises at trial?
In civil cases, this can mean a lot of surprises at trial, particularly where pleadings between the parties are not detailed (even in requests and responses for further and better particulars) or where witness statements are not ordered by the court to be filed by the parties in advance of trial.
We do have a process which allows for interrogatories, which are written questions served by one party on an opposing party which must be answered on oath or affirmation. Answers to interrogatories may be tendered at trial as a component of a party’s evidence at trial.
Interrogatories are part of the pre-trial discovery process in civil cases and can serve to narrow the issues in dispute between the parties. The purpose of interrogatories is to enable a party to obtain from an opponent information about facts relevant to the questions in dispute.
Does Australia require litigants to respond to document requests?
Yes, if a court order has been made to that effect or disclosure of documents is otherwise required in the course of legal proceedings, pursuant to the applicable court and civil procedure rules (i.e. relating to discovery or by virtue of a notice to produce).
What is your experience about how large document productions are? Do you see productions that exceed a hundred thousand pages like American ones?
I have seen this level of discovery more earlier on in my career, around 11 years ago. In more recent years, courts are much less tolerant of large scale document discovery and there is a heavy emphasis on reasonableness, saving court and party resources, narrowing the issues in dispute and the scope of discovery, and proportionality.
The Civil Procedure Act 2010 (Vic) was enacted in 2010 which enshrined these principles in litigation in Victoria and gives courts the power to make personal costs orders against lawyers if they don't comply with its provisions in discovery and otherwise in litigation.
Document production in Australian based cases I have acted on in the last 3 years have been more around the 500 – 10,000 page mark.
If you win a commercial dispute, does the other side reimburse your attorneys’ fees?
Generally, yes. This is provided for in the applicable court and civil procedure rules. This could be on an indemnity basis, solicitor-client basis or party-party (court scale) basis.
Do you believe that Australian courts have a particular strength for resolving commercial disputes?
Yes, due to our heavy emphasis on alternative forms of disputes resolution and that litigation is a last resort. This leads to only around 5% of cases actually going to trial, a high resolution rate.
How about a weakness?
In my view, a potential weakness is that the heavy emphasis on settling a dispute and the overarching obligations enshrined in the Civil Procedure Act can sometimes be used improperly by parties not to disclosure relevant documents, and can lead to forensic shortcuts being taken and can, therefore, lead to the truth or justice of a matter not coming to light.
You participated in an American litigation and are admitted to the New York bar. What are some major differences you’ve observed between how litigation works in Australia and how it works in the United States?
In my experience, although both Australia and the U.S. have adversarial systems, the adversarial system in the U.S. is much more aggressive in terms of the pursuit of litigation. In Australia, we have a very strong emphasis on alternative dispute resolution and all of the other options before litigation. Victorian legal practitioners are personally obligated to proceed in this way as a result of the Civil Procedure Act.
Also, in the U.S., it appears that a lot more motions are filed leading up to trial and the preparation of witnesses prior to trial is much more extensive than ours (is allowed to be) here in Australia.
We also don't do depositions!
How often do you go to the courthouse?
Given COVID-19, all hearings for my matters are being conducted via Zoom video, so I don’t go to court physically at all currently.
But prior to COVID-19, on average, once every 2 months I would be in a court or tribunal. Most matters are able to be resolved via consent via lawyers with respect to case management leading up to trial, so it is really only for conciliations, mediations, or substantive contested hearings that we generally attend.
When you are there, do you need to wear a special robe or wig?
When I do attend the County Court or Supreme Court (not a tribunal) in person, only robes are required (no wigs except in exceptional circumstances), and even then, only for substantive hearings (such as trial) for the practitioner addressing the court and not the practitioner instructing the addressing practitioner.
The exception to this is when a judge presiding over a criminal jury trial considers it to be an exceptional case warranting the wearing of a wig. In those circumstances, the judge may ask permission of the Chief Justice to do so.
In putting an end to the wig wearing era, in May 2016, Chief Justice Marilyn Warren said: “The wearing of wigs represents the past and does not contribute to the administration of justice in a modern court in the 21st century…the Court will be keeping robes.”