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Not all courts are the same. There is a wide variety of courts and tribunals in Australia, and your experience of ‘going to court’ will depend on which court or tribunal you are in. If you are involved in a commercial dispute that is likely to end up in court, you must understand the difference between each court and which court should hear your dispute. This article will explain the structure of the court system in Australia and how to work out which court is appropriate for your commercial dispute.

Which Court Should I Use?

Australia’s court system is divided between state and federal courts. All courts and tribunals have the power to hear only certain types of cases. 

In most cases, the type of dispute and the amount of any money claimed will determine which court will hear the dispute. If your commercial dispute involves a breach of certain legislation, that legislation will often dictate which court can hear the dispute. 

For example, in NSW, retail leasing disputes are heard by the NSW Civil and Administrative Tribunal (NCAT), while breaches of the Competition and Consumer Act 2010 are generally heard in the Federal Court.

In some disputes, you may have a choice between courts to hear your commercial dispute. 

For example, in NSW, the District Court has jurisdiction to hear claims valued between $100,000 and $750,000. In comparison, the Supreme Court has unlimited jurisdiction in the value of claims.

If your dispute involves a claim of $500,000, you can choose between the District or Supreme courts to issue proceedings. If you do have a choice of courts or tribunals, you should obtain legal advice on the pros and cons of all options for your particular dispute. In general, the higher courts hear more complex, higher-value claims, but usually have more filing fees and formal procedures, which can add to legal costs.

Some courts are ‘no cost’ jurisdictions, which mean they cannot order one party to pay the other party’s costs at the end of proceedings. Other courts, such as some local courts, have ‘cost caps’ which limit the amount of costs that the court can order.

Types of Courts and Tribunals 

All courts are independent of the other arms of government, in accordance with the Australian Constitution. The High Court is the only court created by the Constitution. Various federal or state parliaments created the other courts.

The High Court

As its name suggests, the High Court is the highest court in Australia. It can deal with: 

  • all matters to do with the Constitution; 
  • cases involving international law; and 
  • all appeals which come from the lower courts.

The High Court can only hear appeals where the matters involve sufficient public interest or where the lower courts have interpreted the law differently. The High Court has a chief justice and six justices. It sits mostly in Canberra, with regular sittings in other states. 

Until 1986, Australians could appeal beyond the High Court, to the United Kingdom’s Privy Council. However, the Australia Acts 1986 (Cth) ended that option.

The Federal Courts

Along with the High Court, there are three other Federal courts in Australia. A chief justice heads all the courts. These include the:

  • Federal Court of Australia: It hears all civil matters arising under federal laws and some criminal cases. The civil matters include bankruptcy, corporations, industrial relations, native title, taxation and consumer law, and appeals from the Federal Circuit Court (except for family law matters);
  • Family Court of Australia: This specialist court in family law deals with family disputes and hears appeals from family law matters of the Federal Circuit Court; and
  • Federal Circuit Court of Australia: Formerly the Federal Magistrates Court, this court hears less complex disputes in matters including family law, child support, administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and consumer law.

The State Courts

The hierarchy of courts in each state and territory varies, but all have a generally similar structure. Here, there is a higher court headed by a chief justice and intermediate and lower courts below that. 

For example, In New South Wales, there is:

  • the Local Court;
  • then the District Court; and
  • then the Supreme Court of NSW, as the superior court.

Each court hears both civil and criminal matters. 

On the other hand, the ACT has no intermediate court. The supreme courts in each state and territory will conduct jury trials for serious major offences such as murder, and also hear appeals from lower courts. Most states and territories also have a: 

  • Coroner’s Court, dealing with unexplained deaths and fires; and 
  • Children’s Court, for matters involving defendants aged under 18 at the time of offending.

Tribunals and Commissions

There are also tribunals and commissions with lower-level decision-making bodies set up through State and Commonwealth legislation. Tribunals have the power to make decisions that are binding. This means the successful party can enforce them. 

Tribunals are less formal than most courts and have more streamlined procedures, with fewer requirements for evidence and shorter time-frames between issuing proceedings and final hearing. They, therefore, offer a cheaper and quicker way to resolve a dispute than other courts. 

Some tribunals are ‘no-cost’ jurisdictions, meaning no costs orders can be awarded. Further, many discourage or limit the use of legal representatives and are designed for parties to represent themselves.

Key Takeaways

If you need to resolve your commercial dispute through a court or tribunal, it is important to understand:

  • how the Australian court system works;
  • how the different levels of courts operate and intersect; and 
  • what types of matters are heard by each court.

If you need advice on resolving a commercial dispute, contact LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.


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