Limitation around the world - DLA Piper Global Litigation Guide

Limitation

Australia

In each state or territory of Australia, specific legislation imposes a time period before the end of which proceedings must be commenced for a claim or dispute.

The specific legislation is:

Limitation Act 1985 (ACT)
Limitation Act 1981 (NT)
Limitation Act 1969 (NSW)
Limitation of Actions Act 1974 (QLD)
Limitation of Actions Act 1936 (SA)
Limitation Act 1974 (TAS)
Limitation of Actions Act 1958 (VIC)
Limitation Act 2005 (WA)

These time periods vary from state to state and depend upon the type of claim. A failure to issue proceedings before the relevant time period expires is likely to result in that claim becoming time barred.

In most Australian states, actions in simple contract or tort must be brought within six years of either the date of breach (contract) or the date on which loss was incurred (tort).

The limitation period may be extended in some circumstances, for example where someone with legal incapacity (such as a minor or a person of unsound mind) has entered into a contract. Some jurisdictions also permit for the limitation period to be extended at the court’s discretion.

Austria

In general, under Austrian law, limitation periods run from the first day on which the claimant could have brought the matter to court. In terms of duration, Austrian law distinguishes between long and short limitation periods. Unless statutory law provides for a shorter limitation period, long limitation periods of 30 years are the default. Short limitation periods are generally three years. For reasons of legal certainty, the 30-year periods are absolute.

With regards to time limits (for instance, limitation periods or preclusion periods), Austrian law draws a distinction between the time limits applicable to substantive and procedural law matters respectively. The rules for the calculation of time limits in respect of substantive law matters are laid down in the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch). They apply, inter alia, to time limits that result from unilateral legal acts, and to statutory time limits, such as limitation periods or preclusion periods. However, there are also specific limitation periods which displace those set out under the Austrian Civil Code, e.g. within the framework of capital market law, the limitation period for bringing a claim is ten years after completion of the offer, which is subject to prospectus requirements. The ten-year limitation period under capital market law is absolute and applies regardless of the knowledge of the claimant.

Bahrain

The general limitation period for bringing civil claims in Bahrain is 15 years from the date on which the unlawful act was committed. However, exceptions exist for certain types of claims relating to insurance, construction, and employment, which each have a limitation period of three years, three years and one year respectively from the date on which the unlawful act was committed.

Belgium

In principle, all contractual claims are subject to a ten-year limitation period beginning on the date on which the rights under the contract could have been exercised. For tort claims, this term is reduced to five years after the claimant has learned of either the damage or its aggravation and the person liable.

Belgian law has a great variety of statutory limitation periods which can have different starting points. As indicated above, for claims based on breaches of contract the start of the limitation term does not have to coincide with knowledge of the existence of the claim, whereas for torts it does.

Brazil

The general statutory limitation period for filing civil claims in Brazil is ten years from the date when the cause of action arose but such term is shorter for specific types of claim (e.g. the limitation period for bringing a tort claim is three years).

Canada

Though there is some variance among the Canadian jurisdictions, a civil claim must typically be commenced within the two-year anniversary of the date on which the underlying cause of action arose. The limitation period will be extended if the claim could only be reasonably discovered at some point later than the date on which the cause of action arose (as might be the case where, for example, a fraud perpetrated on the plaintiff or a latent defect in a consumer product could only reasonably be discovered at some later point in time).

Chile

The general statutory limitation period for filing civil claims is five years from the date when the cause of action arose but such a term is shorter for specific types of claim (e.g. the limitation period for bringing a tort claim is four years and limitation for enforcement procedures is three years).

China

In the PRC, the general limitation period for civil claims is three years. Special limitation periods apply to certain causes of action.

Denmark

The general limitation period for civil claims is three years, depending on the nature and the subject matter of the claim.

The date on which the limitation period begins to run differs depending on the nature and the subject matter of the claim, e.g. whether the claim is in tort or contract.

In general, the limitation period starts from the earliest point at which the claimant could demand fulfilment of the claim, such as from the occurrence of the damage or the time of the breach of contract. However, if the claimant was unaware of the claim or the debtor, the limitation period runs from the day the claimant became aware or should have become aware of it. However, this rule is also subject to the absolute limitation periods, which depend on the nature of the specific claim at hand.

Czech Republic

The limitation periods in Czech law are divided into two categories: the subjective limitation period and the objective limitation period. The subjective limitation period for civil claims is three years and the time it begins to run depends on the type of claim. The subjective limitation period can only run within the objective limitation period, which is ten years from when the claim matures. In other words, the subjective limitation period cannot exceed the end of the objective limitation period. There are specific statutory provisions relating to the limitation period for different types of claims.

There are no thresholds for accessing the courts to bring a civil case. However, an appeal against the decision of the court of first instance can only be filed if the value of the disputed claim exceeds CZK10,000. An extraordinary appeal against the decision of a court of appeal can only be lodged with the Supreme Court if the value of the disputed claim exceeds CZK50,000.

Finland

In Finland, the general limitation period for initiating court proceedings in civil matters is three years, which may be interrupted by a notice to the counterparty. The limitation period of three years begins to run from a certain due date (invoice, date of performance under a contract etc.), or when the plaintiff knew or should have known about the cause of the claim. Further, there is a parallel limitation period of ten years, which is irrespective of the knowledge of the plaintiff.

France

There is a five-year limitation period usually (but not systematically) starting from the day the claimant knew, or should have known, the facts giving rise to its claim. Five years is the general statutory limitation period for filing civil and commercial claims but different periods may apply depending on the course of action.

Germany

The standard limitation period for civil claims in Germany is three calendar years, beginning on January 1 following the moment when the claimant knew or ought to have known (whichever is the earlier):

the circumstances giving rise to the claim; and
the identity of the defendant.

Hong Kong, SAR

In most commercial disputes, the limitation period for a claimant to commence a civil action is six years from the date when the cause of action accrued (for example, the date when the defendant committed the breach in a claim for breach of contract). However, in an action for breach of a contract created by deed, the limitation period is extended to 12 years from the date when the cause of action accrued. It is important to note that the Limitation Ordinance also prescribes shorter limitation periods for actions in respect of claims for personal injuries.

Hungary

The time limit within which claims may be submitted is a matter of substantive law. In most cases (e.g. breach of contract or damage claims), the limitation period is five years and the period starts to run when a claim arose i.e. the completion date of a contract or the date when the damage occurs. However, in some cases this period is considerably shorter (e.g. 30 days for administrative review proceedings).

Italy

As a general rule, contract claims are subject to a ten year limitation period, beginning on the date on which the rights under the contract could have been enforced. For tort claims, the limitation period is five years from the date when the event giving rise to the tort claim occurred.

Ireland

Claims for tort and breach of contract (and actions to enforce arbitral awards) must be issued within six years (under the Limitation Act 1957).

Cases arising from breach of a deed have a longer limitation period of 12 years.

Certain cases attract specific limitation periods, most notably:

claims for defective products, which must be brought within 3 years of damage (and there is a longstop date of 10 years following circulation of the product)
defamation claims, which must be brought within one year (which can be extended to two years in certain circumstances)
personal injury claims must be brought within two years

Judicial review actions must be brought promptly, and within three months of the actionable event.

If a cause of action has been concealed by fraud, this will normally extend the limitation period.

Japan

Under Japanese law, the general statute of limitations period for civil claims is ten years.

Kuwait

Limitation periods in Kuwait vary depending on the cause of action, but the general limitation period for civil legal claims is 15 years.

Mexico

Under Mexican law, the statutory limitation for civil claims is ten years from the date an obligation may be enforced.

Netherlands

The general limitation period for civil claims is three to five years, depending on the nature of the claim concerned.

New Zealand

Limitation is governed in New Zealand by the Limitation Act 2010. This imposes a time period before the end of which proceedings must be commenced for a claim or dispute. A failure to issue proceedings before the relevant time period expires is a defence to the claim and, if such defence is used, will result in that claim becoming “time barred”.

In general, most claims must be brought within six years of the date of the act or omission on which the claim is based unless the “late notice” provisions apply. If the claimant did not know about the act or omission at the time, they have “late knowledge”, and the limitation period expires three years after the claimant knew (or ought to have known) that a claim had arisen. The Limitation Act 2010 also provides for a longstop date of 15 years after the date of the act or omission on which the claim is based, after which a claim cannot be brought.

There are also a small number of specific limitation periods set out in specific Acts of Parliament.

Norway

As a general rule, a civil claim must be commenced before the applicable limitation period expires. Under Norwegian law, limitation periods vary depending on the nature of the claim, but the general limitation period is three years. The date on which time begins to run may differ depending, for instance, on whether the claim is in tort or contract.

Poland

The limitation period starts from the date when the claim arises (or if action is required for the claim to become due, from the earliest possible time when it could have arisen i.e. when certain action could have been taken).

The limitation periods applicable to civil claims are in general:

six years; or
three years where the claim relates to periodical performance and / or business activities (i.e. commercial cases).

However, the limitation period ends on the last day of the calendar year (unless the limitation period is less than two years – which it can be in certain cases).

Generally speaking, a creditor or claimant is entitled to pursue their claim even after the relevant limitation period has expired. It is then for the debtor or defendant to raise a limitation defense. If the debtor or defendant does not raise this defense, the court will be entitled to award relief pursuant to the claimant’s request.

Portugal

The general limitation period for civil claims in Portugal is 20 years from the date that the claimant’s right to bring the claim becomes enforceable (i.e. the moment when the claimant knew or ought to have known – whichever is the earlier – the circumstances giving rise to such right and the identity of the defendant). There are, however, exceptions providing for shorter limitation periods, notably the following:

Five years for statutory or agreed interest, namely within financial agreements, and other specific situations;
Three years for non-contractual liability;
Two years for lawyers’ fees and other payment of services claims, amongst other things; and
Six months for claims from establishments providing accommodation services against consumers, amongst other things.

The most common trigger for a limitation period to start is the event that constitutes the grounds for the claim, but a later date can be triggered if the perpetrator or details and/or consequences of the event only become known at a later date.

Given the number of potential scenarios, the limitation period for each claim must be analyzed on an individual, case-by-case basis.

Qatar

Under Qatari law, the application of limitation periods is usually a substantive law issue and therefore governed by the law applicable to a particular contract or interaction between the parties. Advice should be sought on a case-by-case basis on the applicable limitation period since its expiry can critically affect a party’s ability to bring a claim. Where Qatari law is the applicable law in respect of a limitation period, the general position is set out below.

Qatari law also prescribes a range of different limitation periods depending on the specific type of claim in issue. In particular, the position in respect of contractual claims is generally as follows:

claims which are considered to arise out of a commercial arrangement / activity will have a limitation period of ten years from the breach occurring; and
claims which are not considered to arise out of a commercial arrangement / activity will have a limitation period of 15 years from the breach occurring.

Romania

The general limitation period in Romania is three years, but there are several exceptions, depending on the nature of the rights in question.

Russia

The standard limitation period for submitting a claim in Russia is three years from the day when the claimant became aware, or should have become aware, of both the violation of its right and who the appropriate respondent is. There are certain shorter limitation periods (e.g. for challenging a voidable transaction).

Saudi Arabia

In general, limitation periods for civil claims are not applied in Saudi courts, as under Sharia law, a right to claim is not waived due to the passage of time. However, there are some exceptions where certain laws impose limitation periods such as the Commercial Maritime Law, Board of Grievances Law and Labour Law.

South Africa

Limitation / Prescription Periods

The principle of extinctive prescription means that certain types of debts or obligations may be extinguished or become unenforceable within a prescribed time. The Prescription Act 1969 (Prescription Act) regulates extinctive prescription, and its provisions apply as long as they do not conflict with other statutory provisions providing for their own specified periods. Failure to meet such time periods may prevent an aggrieved person from instituting a claim.

The Prescription Act provides for different extinctive prescription periods, depending on the type of debt and debtor. These are:

thirty years in respect of:

a debt secured by a mortgage bond;
a judgment debt;
any debt in respect of tax levied in terms of any statute; and
any debt owing to the state regarding the prospecting for and mining of minerals or other substances;

fifteen years in respect of a debt owing to the state arising from a loan of money or the sale or lease of land, unless a longer period applies;
six years in respect of a debt arising from:

a bill of exchange or any other negotiable instrument; or
a notarial contract unless a longer period applies;

three years in respect of any other debt, unless specifically provided for by statute.

The prescription period starts to run as soon as a debt becomes due and may be interrupted in certain circumstances, such as an acknowledgement of the debt by the debtor (for example, paying part of the debt before prescription), or the serving of a summons by the creditor on the debtor to claim payment.

Spain

According to the Civil Code of Spain, personal actions for which there is no specific statutory limitation will become time barred after five years from the date on which fulfilment of the obligation can be demanded. While a five year limitation period is the default position, the Civil Code also establishes other limitation periods (e.g., a one year limitation for civil tort liability; a 20 year limitation for foreclosure of a mortgage; and a four year limitation for an action for annulment).

Sweden

Should a party wish to commence proceedings in Sweden, it must bear in mind that a claim must be filed within the general ten-year statutory limit, except for business to consumer claims, which must be filed within two years. The time limit can be renewed by service of notification of the debt, service of application of summons or enforcement measures.

Thailand

The Thai Civil Procedure Code prescribes limitation periods for the filing of cases, which vary according to the nature of the issues in dispute and the related law. The most commonly applicable limitation periods include:

one year for negligence and wrongful act claims, starting from the date on which the loss and the identity of the tortfeasor becomes known (up to a maximum of ten years from the date of the loss); and
ten years from the date of breach for general commercial contracts.

Where there is no specific limitation period, a general ten-year limit applies from the date the cause of action arises.

UK - England & Wales

The Limitation Act 1980 provides that claims based on torts (i.e. civil wrongs) or breach of contract must be issued within six years of the cause of action arising – this being either the date on which the negligent act or omission occurred, or the date on which the breach of contract occurred respectively. However, a different limitation period may apply where, for example, the claim is based on the breach of a deed (in which case a 12-year limitation period applies).

UK - Scotland

The prescriptive (limitation) period for contractual and tortious claims in Scotland is five years. For personal injury claims it is three years. In both cases the claim must be raised and served on the other party within this period. After the time period has expired, the claim is said to have prescribed and the right to enforce is lost.

United Arab Emirates

The application of limitation periods is usually an issue of substantive law and therefore the law applicable to the particular contract or interaction of the parties. Advice should be sought on a case-by-case basis on the applicable limitation period and its expiry, as it can critically affect a party’s ability to bring a claim.

Assuming that DIFC or ADGM law is the applicable law in respect of limitation periods, the general position is set out below.

Under DIFC law, the position is generally as follows:

an action for breach of contract must be commenced within six years after the cause of action accrued;
in respect of claims in negligence, occupiers’ liability or misrepresentation, a cause of action arises on the earliest date on which the claimant knows or ought reasonably to know about the loss that gives rise to the cause of action, and an action must be commenced within 15 years of the date that the cause of action in fact arose; and
where a cause of action arises as a result of fraud by the defendant, there is no time limit before which the action must be commenced.

The ADGM Regulations adopt selected pieces of English legislation, including the English legislation relating to limitation and in particular adopts the Limitation Act 1980 and the Foreign Limitation Periods Act 1984. The position is, generally, as follows:

an action for breach of contract must be brought within six years of the date of the breach of contract;
an action for breach of deed must be brought within 12 years of the breach of the obligation in the deed;
an action in tort / negligence generally, must be brought within six years from the date the damage is suffered;
an action in negligence, and in respect of latent damage, has to be brought within the later of six years from the date the damage occurred or three years from the date on which the claimant had the requisite knowledge and the right to bring such an action; and
an action in fraud has be to be brought within six years from when the claimant discovered the fraud, or when they could, with reasonable diligence, have discovered it.

United States

The statute of limitations is a time limit imposed by law during which a party may bring legal action. The limitation period for civil claims varies by jurisdiction and depends on the nature of the claim being brought. These periods typically range from between one and six years but can be longer depending on the applicable state law and the claim at issue. Once the limitations period expires, a court lacks jurisdiction to hear even an otherwise valid claim.

Australia’s courts operate under the common law legal system. Australia has a federal system of government, with legislative power divided between the federal branch of government and six state and two territory governments (for ease, we refer collectively to the states and territories as the state or states). Australia’s courts are similarly divided into eight separate state jurisdictions and a federal jurisdiction, which each operate on a parallel but independent hierarchy of courts. State and federal courts broadly have jurisdiction over the application of legislation enacted by the state and federal parliaments respectively. The High Court of Australia is the ultimate court of appeal in Australia for all court systems. There are also tribunals created by specific legislation under state and federal jurisdictions.

Last modified 19 Jul 2019

In each state or territory of Australia, specific legislation imposes a time period before the end of which proceedings must be commenced for a claim or dispute.

The specific legislation is:

Limitation Act 1985 (ACT)
Limitation Act 1981 (NT)
Limitation Act 1969 (NSW)
Limitation of Actions Act 1974 (QLD)
Limitation of Actions Act 1936 (SA)
Limitation Act 1974 (TAS)
Limitation of Actions Act 1958 (VIC)
Limitation Act 2005 (WA)

In most Australian states, actions in simple contract or tort must be brought within six years of either the date of breach (contract) or the date on which loss was incurred (tort).

Last modified 19 Jul 2019

The process of litigation is broadly similar across Australian courts. Proceedings are initiated by a claim or application, which must be filed in the relevant court and served on all parties to the proceeding. Parties will then exchange pleadings (such as statements of claim, defenses, counterclaims, and replies) which define the parameters of the dispute between the parties and the specific issues which are to be proved by each party. Timeframes for the progression of litigation are found in the civil procedure rules applicable in each jurisdiction. Generally, a defense must be filed within 28 days of service of a statement of claim.

For proceedings in the Federal Court, parties are required to file a genuine steps statement, which outlines the steps taken to make a sincere and genuine attempt to resolve the dispute prior to commencing litigation. Superior courts in the states may also require a party to litigation to provide details of attempts made to resolve a dispute before proceedings were commenced.

Once the exchange of pleadings is complete, parties will generally undertake the discovery (also known as the disclosure) process, and then go on to prepare their evidence for a final hearing of the dispute. It is common, particularly in complex litigation, for the parties to be obliged to attend court at regular intervals for directions hearings, in which orders are given to manage the conduct and timeframes of the case up until its final hearing.

Timeframes for each stage of proceedings vary greatly with the complexity and case management style of an individual matter and the specific jurisdiction in which the case is commenced. Each superior court in the states has in place specific practice notes or directions for the conduct of commercial disputes with the aim of ensuring that those commercial disputes are resolved in the most cost-effective and time-efficient manner possible. Generally, across all jurisdictions, parties will have 28 days from receipt of a claim to put on a defense. As noted above, the timetable from that point of time will depend on the nature of the dispute.

A straightforward commercial contract dispute will normally, court resources permitting, be resolved within 12 months.

Most state and federal courts require a corporate entity to be represented by a lawyer (which could include a lawyer employed by a company). Some jurisdictions dealing with small claims / employment issues may allow a company to appear by its director. Individuals may appear on their own behalf in most jurisdictions without a lawyer.

Last modified 19 Jul 2019

In Australia, the discovery process is designed to allow parties to civil litigation to obtain from an opponent all documents relevant to the issues in dispute. Australian courts strictly prohibit “fishing expeditions” through discovery. Discovery is usually undertaken after the close of pleadings (although in some courts in some states this may not be permitted until after evidence is complete) when the points of dispute between the parties have crystallized. Discovery may however be ordered, in limited circumstances, prior to the commencement of proceedings where an applicant is able to satisfy the court that he or she needs to obtain discovery in order to find out whether or not a cause of action exists against a potential defendant.

The practice of disclosure varies between those jurisdictions which mandate a general right of discovery and those in which the right is more limited. In the Northern Territory and the states of South Australia and Queensland, parties have a mandatory duty of disclosure which is discharged by the exchange of lists or copies of discoverable documents. In Tasmania, Victoria and Western Australia, a party may, by written notice to another party, require that party to make general discovery. In the Federal Court of Australia and New South Wales, the right to discovery is limited and requires an order of the court and will usually be limited to specific categories.

There have been recent attempts by some of the states’ superior courts to more tightly control the disclosure process. For example, the preparation of disclosure plans (which identify the categories of documents to be disclosed and how they will be disclosed), and the courts ordering that discovery being provided after the exchange of written evidence with a view to limiting the number of documents to be exchanged.

In the Federal Court and most state courts, discovery can be ordered to be made by non-parties to the dispute where the court is satisfied as to the likelihood of the non-party having relevant documents. Courts in Australia will also generally permit the issuing of subpoenas to produce documents to non-parties to litigation and this process will be more straightforward than seeking non-party disclosure orders.

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Default judgment can be applied for in proceedings in any court where a defendant does not:

file a defense within the specified timeframe after a statement of claim has been served; or
fails to make an appearance at a hearing.

Once a default judgment is ordered against a defendant, a defendant can, in limited circumstances, seek to challenge the granting of judgment by default. The defendant will need to file an application or motion to set aside the default judgment within a specified period of time and show cause for why (usually lack of notice of the claim or that notice was given of intent to defend but that notice was not brought to the attention of the court which granted the default judgment) the judgment should be set aside.

Last modified 19 Jul 2019

Judgments of civil courts in Australia can be appealed to a superior court. Civil procedure legislation in each jurisdiction sets out the rules and procedure for appeals. Ordinarily, it will be necessary to seek leave from the superior court to appeal. The Court of Appeal in each state, and the Full Federal Court, are the ultimate courts of appeal for each of those jurisdictions. Cases that emanate from the Federal Circuit Court are appealable to the Federal Court and then the Full Federal Court, whereas matters emanating from a State Magistrates Court are appealable to the Supreme Court and the Court of Appeal. Decisions made by the District Court (County Court in certain states) are appealable to the Supreme Court and decisions of the Supreme Court can be appealed to the state’s Court of Appeal. The High Court of Australia hears appeals from courts of appeal (sometimes referred to as the full court) in all jurisdictions, and has limited original jurisdiction (which predominantly relates to constitutional matters).

Parties generally, depending on the jurisdiction, have 28 days from the date of judgment or final order, to lodge an appeal in a civil matter to the relevant appeal court. Appeals will generally, because of the limitation of introducing new evidence in most civil appeals, be resolved more quickly than matters at first instance. Most appeals of civil matters will be heard and judgment given within six to eight months from commencement of the appeal.

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All superior Australian courts have a wide power and discretion to grant both interlocutory orders and interlocutory injunctions. An interlocutory application, generally speaking, is an application which seeks any order other than a final judgment.

As in other jurisdictions, interlocutory injunctions are a species of interlocutory orders. Where those orders are sought on an urgent and temporary basis until a more extended form of relief is sought, they are often referred to as interim orders.

Interlocutory orders (including interlocutory injunctions) can require a party to undertake or refrain from a particular act, and can be granted before proceedings have commenced, once they are on foot and after judgment has been entered. Applications for these types of orders may be made by self-represented litigants or through legal representation.

The categories of non-urgent interlocutory orders that an applicant may seek are many and varied and include, by way of example, applications for security for costs, discovery (including preliminary discovery before proceedings have been commenced), the filing of expert evidence or orders for particulars, The evidence required to obtain non-urgent interlocutory orders will turn on the type of orders sought, although at the very least substantive interlocutory applications usually require a sworn affidavit to be filed.

The kinds of relief that can be sought by way of an urgent interlocutory injunction are equally varied. This is because the orders have the purpose of preserving the status quo until the rights of the parties can be determined finally, and the types of matters that can be heard by the court are vast. Common urgent interlocutory injunctions include applications for the preservation of property, the freezing of assets and applications to search premises to preserve evidence.

An applicant for an interlocutory injunction (either urgent or not) must prove that:

there is a serious question of law to be tried;
the balance of convenience favors the granting of the injunction; and
an award of damages (at the conclusion of the proceeding) would not be an adequate remedy.

It is possible for urgent interlocutory injunction applications to be heard by the court ex parte, without the opposing party’s involvement. Any orders given ex parte will generally operate only for a limited period of time until the matter can be brought to a hearing. The duration of any ex parte order will ordinarily be limited to a period terminating on the return date of the summons, which should be as early as practicable (usually not more than a day or two) after the order was made, when the respondent will have the opportunity to be heard. For this reason appeals of ex parte interlocutory injunctions are not usually made to a superior court. The applicant will then bear the onus of satisfying the court that the order should be continued or renewed. A party seeking an interlocutory injunction will ordinarily be obliged to give an undertaking to pay any damages by the defendant suffered as a result of the injunction in the event that the claim for final relief at trial fails.

The decision to grant an interlocutory injunction can be appealed on an urgent basis to a relevant appeal court. The appeal court will usually list the matter before a single judge to assess the urgency (often the same or the day following the day on which the appeal is lodged) and set a timetable based on the information provided at that first listing.

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Australian state and federal courts can grant interim freezing orders, which restrain a defendant from disposing of property prior to judgment. These orders are a species of interlocutory orders. Such applications may be filed at the Supreme Court or Federal Court. A freezing order is normally obtained ex parte without notice to the respondent, before service of the originating process, because notice or service may prompt the feared dissipation or dealing with assets. A freezing order or an ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets. It would therefore be possible for a freezing order to encompass bank accounts as well as assets such as real property, art, securities or motor vehicles. Such orders would, however, normally allow for access to funds for reasonable expenses, living costs and payments in the ordinary course of a defendant or third party’s business. A court may also order a freezing order against a third party, where it can be established that there is a risk that a judgment or prospective judgment may be unsatisfied as a result of a third party’s power, possession or influence over the assets in question. The power to issue a freezing order is a function of courts’ authority to prevent an abuse of the court process by the frustration of court-ordered remedies. A freezing order will be made only to preserve the status quo for the purpose of resolving a substantive cause of action brought by the plaintiff, and not as a stand-alone remedy.

The criteria for the issue of a freezing order is similar to the ordinary principles for the grant of interim relief, as discussed above, although the potentially serious impact on a defendant’s property rights raises the threshold for the granting of a freezing order. This may be overcome by an undertaking as to damages given by the applicant of the freezing order, where the applicant undertakes to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person affected by the operation of the order. The High Court of Australia described freezing orders as 'a drastic remedy which should not be granted lightly.' Broadly and generally, an applicant must show that:

the applicant has a good arguable case (in the substantive cause of action);
the refusal of a freezing order will give rise to a real risk that any judgment pronounced in the action will remain unsatisfied, or that the recovery of any judgment will be prejudiced by reason of the removal by the defendant of assets from the jurisdiction, or their dissipation within it; and
the balance of convenience favors the making of the order.

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Australian courts have wide discretion to award costs orders against either party to cover the opposing party’s costs of litigation. The general rule is that costs follow the event. This means that the unsuccessful party will be liable to pay the litigation costs of the successful party. The aim of this rule is to achieve a just outcome by shifting the costs burden on to the party which is found to have either unjustifiably brought another party before the court or given another party cause to have recourse to the court to obtain their rights.

Where each litigant has enjoyed some success in the proceedings, courts may modify the general rule to make costs orders that reflect the litigants’ relative success and failure. Courts may depart from the general rule by requiring a successful party to bear their own costs where there is good cause to do so. Such an outcome may be justified where, for example, a successful plaintiff is awarded only nominal damages, or a party succeeds only due to late and substantial amendments to their case.

Of particular strategic importance is the rule that generally a court will not award costs to a successful party which has obtained relief no more favorable than had already been offered by his or her opponent in settlement discussions. This rule is designed to encourage the early resolution of litigated disputes.

Costs orders are subject to a costs assessment process administered by the courts. It is unusual that a party will be able to recover all of its actual legal costs through this process. On a standard assessment, parties may recover approximately 60% to 75% of their actual costs. A higher rate of assessment, on an indemnity basis, may be employed where a party has engaged in unreasonable conduct in the proceeding.

All courts in Australia will charge fees for commencing civil proceedings (often referred to as a filing fee). Some jurisdictions, particularly superior courts, will also charge additional fees including but not limited to daily hearing fees (calculated by reference to the length of the trial), filing fees for notices of motions/applications and the issuing of subpoenas to third parties. These fees are set by the courts and are published on their websites. They are usually reviewed on a yearly basis. By way of example, the current (2019) rate for commencing proceedings in the Federal Court of Australia is AUD4,045 for corporations and the hearing fee for a five-day trial is AUD19,730 for corporations.

Last modified 19 Jul 2019

In all Australian jurisdictions, a representative proceeding, or class action (as it is more commonly known in Australia) may be commenced by or against any one person as a representative of numerous persons (the minimum number required is generally seven people) who have the same interest in the proceeding and the claims brought give rise to a substantial common issue of law or fact. It is possible to commence a class action against multiple defendants and there is no requirement for every group member to have a claim against every defendant.

An overarching consideration of the courts in hearing a representative proceeding is whether it involves less delay, expense, and prejudice to the parties than alternative forms of trial. If not, the court may discontinue the proceedings.

The Federal, New South Wales, Victorian and, most recently, Queensland jurisdictions contain further statutory provisions in relation to representative proceedings, which are arguably more liberal and plaintiff-friendly than other jurisdictions. These jurisdictions allow representative proceedings to be brought where seven or more people have claims which arise out of the same or related circumstances and give rise to a substantial common issue of fact or law. Over 90% of all class actions filed in Australia from 1992-2009 were filed in the Federal Court of Australia.

When a representative proceeding is commenced, all potential plaintiffs who fall within a class become members of the class, whether they are aware of the claim or not. Members can then opt out of the proceedings before a date set by the court. All class members who do not opt out will be bound by the judgment of the court or by any approved settlement.

It is important to note that, although some states have yet to formally abolish the law of champerty and maintenance, outside of the US, Australia has one of the most developed class action industries, with a variety of large, class action plaintiff law firms and with many litigation funders having been active in the jurisdiction for over 20 years. This active funding industry has seen a continued increase in the number of class actions being commenced in Australia.

Last modified 19 Jul 2019

Cameron Maclean

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DLA Piper Australia
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Cameron Maclean