AUSTRALIA: An Introduction to Dispute Resolution: The Bar

The Australian Bar is characterised by a tradition of independence and a commitment to the rule of law and access to justice. It is organised around individual state and territory Bars united around a national body, the Australian Bar Association. Many barristers, especially at the commercial Bar, practise nationally.

The Australian Bar recognises seniority and distinction by the appointment of barristers as “Silks”, but the designation given varies between “SC” (NSW Bar, Western Australian Bar) and “KC” (generally for the other independent Bars). The designations are equivalent.

Advocacy, whether oral or written, in court proceedings, international arbitrations seated in Australia and commissions of inquiry is the core specialty of the Australian Bar.

Developments and Trends: 2025 and Beyond

Below we describe some of the main developments and trends in general dispute resolution in Australia, and key areas of work for the Australian Bar.

Regulatory proceedings

Australian barristers are generally involved in providing advice during the course of regulatory investigations and are also involved in both the enforcement and defence of such proceedings.

Key Commonwealth regulators include the Australian Competition and Consumer Commission (ACCC), the Australian Securities and Investments Commission (ASIC), the Australian Taxation Office (ATO), AUSTRAC, the Australian Prudential Regulation Authority (APRA), the Office of the Australian Information Commissioner (OAIC) and the Australian Communications and Media Authority (ACMA).

The following are some areas of regulatory concern that are likely to feature in litigation in the next 12 months and beyond.

ACCC

The first priority listed in the ACCC’s priorities for 2025–26 is the supermarket and retail sector. In recent times, the ACCC conducted a lengthy inquiry in respect of this sector and provided a report to the government on the topic. It filed proceedings, which are ongoing, against the two largest Australian supermarkets in respect of their pricing practices.

Another key focus of the ACCC is the prevention of cartel conduct and other anti-competitive conduct across the economy. The ACCC’s recent cases in this area include civil proceedings against Bluescope Steel (AUD57.5 million penalty for attempting to fix prices for flat steel products, currently under appeal), Qteq (findings of cartel conduct, penalty yet to be determined), Delta Building Automation (AUD1.5 million penalty for attempting to rig a tender at the National Gallery of Australia, currently under appeal) and criminal proceedings against Aussie Skips and Bingo Industries Ltd (AUD3.5 million and AUD30 million fines for criminal cartel conduct, along with a AUD75,000 fine and sentence of imprisonment to be served by way of an intensive correction order and community service for the former CEO of Aussie Skips). In December 2024, the ACCC filed Federal Court proceedings alleging cartel conduct on behalf of various providers to the Department of Defence, which are ongoing.

ASIC

Particular priorities for ASIC in 2025 include the detection, investigation and prosecution of unlawful conduct exploiting superannuation savings, unscrupulous property investment schemes and failures by insurers to deal in good faith with customers.

ASIC commenced proceedings in the Federal Court in March 2025 against AustralianSuper Pty Ltd, the trustee of a large Australian superannuation fund, alleging that it delayed processing nearly 7,000 death benefit claims.

Commercial, corporations, insurance and insolvency advice and litigation

General corporate and commercial disputes, in both Commonwealth and State courts, continue to represent a significant area of activity at the Australian Bar. Much of this work arises from significant commercial disputes between large corporates across a range of industries, including mining and resources, telecommunications, agriculture, pharmaceutical and financial services. A projected massive transfer of inter-generational wealth in the next 10–20 years is also likely to be the catalyst for large private wealth disputes concerning family trusts, wills and estates.

Australian barristers are routinely involved in large commercial proceedings of international significance. Two recent examples are illustrative.

• In 2024, the Federal Court heard proceedings brought by Epic Games in which it alleged that each of Apple and Google had misused their market power in respect of the way in which apps are distributed on their mobile devices. The case was one of a number of similar cases commenced by Epic, including the US and UK. Judgment is reserved, and the case is being watched closely in other jurisdictions.
• In 2026, the Federal Court will hear a AUD7 billion multi-proceeding, international insurance dispute in connection with the high-profile collapse of Greensill Capital (UK). The claims are brought by applicants in Germany, Luxembourg and the UK, including entities connected with two now-collapsed banks: Greensill Bank AG and Credit Suisse. They bring claims against the alleged insurer, IAL, and related underwriters, brokers and insurers, among others, which give rise to issues including actual and ostensible authority, scope of coverage, alleged fraudulent misrepresentations and non-disclosures in procuring cover, misleading or deceptive conduct and negligence. Related proceedings have been commenced in the UK, including director disqualification proceedings against Lex Greensill, the founder of the Greensill Group. The case has attracted regulatory attention in Australia, the UK, Germany, Luxembourg and Switzerland. The Australian proceedings are the largest and most significant of the international proceedings arising from the collapse of Greensill, and will be closely watched by international stakeholders.

Merger reforms

From January 2026, the regulatory clearance procedure for the merger of companies that would (or would be likely to) bring about a substantial lessening of competition will change following a significant merger reform project undertaken by the Australian government involving amendment of the Competition and Consumer Act 2010 (Cth). Any merger of companies above a particular threshold will be required to be notified to the ACCC, with ACCC approval to be obtained before the merger can proceed.

Businesses are preparing for and seeking advice in relation to the introduction of these reforms, which will be tested in the courts.

Class actions

Australia has a mature class action and litigation funding market. Typically, Australian regulatory activity and overseas litigation has flow-on effects for class action claims in Australia. There is also a consistent trend towards consumer claims across sectors (eg, motor vehicles, pharmaceutical products and financial services). Employment and industrial relations claims are also prevalent. The Federal Court publishes a list of current first instance class actions, and the Victorian Supreme Court publishes a similar list.

Very large class actions in Australia are common, and many have an international dimension. For examples, a class action was brought in the Victorian Supreme Court against Australian and international Uber entities (together, Uber), alleging that Uber engaged in conspiracy by unlawful means to operate a rideshare business contrary to Australian regulations. The matter settled in 2024 without admission of liability by Uber for AUD271.8 million.

Shareholder class actions are also common in Australia; examples follow.

• Proceedings against the Commonwealth Bank of Australia (CBA) were commenced in the wake of AUSTRAC civil penalty proceedings that resulted in a AUD700 million penalty and admissions by CBA that its anti-money laundering/counter-terrorist financing (AML/CTF) compliance systems were deficient. The Full Court of the Federal Court held in May 2025 that CBA had breached its continuous disclosure obligations in relation to its compliance with AML/CTF legislation, but that the plaintiffs had failed to prove their case on loss. The Full Court held, for example, that there was no “economic equivalence” between the pleaded non-disclosures and information disclosed in an AUSTRAC media announcement relied on by the plaintiffs because of the stark differences between the two disclosures. The Full Court otherwise provided useful guidance on establishing causation and loss in shareholder class actions, including observing that loss need not be proved with “mathematical exactitude”.
• Proceedings against professional services company Worley Ltd arose from misleading earnings forecasts. The Federal Court held, following a retrial of the proceedings, that the forecasts lacked reasonable grounds and were therefore misleading. Breaches of the company’s continuous disclosure obligations were also established. However, the plaintiffs failed to establish that the relevant conduct caused their pleaded loss, such that no compensation was awarded. An appeal from this decision was heard in March 2025, with judgment reserved at the time of writing.

Climate litigation

Climate-related litigation in Australia is presently largely focused on “greenwashing” claims. Some cases of note include the following.

• At the end of 2024, the Federal Court heard a landmark case in relation to alleged representations and non-disclosures in connection with a company’s net-zero emissions plan, which at the time of writing is reserved: ACCR v Santos Ltd.
• ASIC has recently obtained a number of significant pecuniary penalties through enforcement proceedings in the Federal Court, respectively obtaining penalties of AUD11.3 million, AUD12.9 million and AUD10.5 million against Mercer Superannuation, Vanguard and Active Superin connection with misleading claims regarding the ESG credentials of investment options and investment screens.
• A significant greenwashing proceeding brought in the Federal Court in August 2023 against EnergyAustralia by an advocacy group, Parents for Climate, settled prior to trial in May 2025. It had been alleged that EnergyAustralia had breached consumer laws in the marketing of its “Go Neutral” fossil-fuel based energy product as carbon neutral.

Cybersecurity and privacy

In late 2024, Australia introduced cybersecurity and privacy regulatory reforms, in the form of the new Cyber Security Act 2004 (Cth) and amendments to the Privacy Act 1988 (Cth). These developments reflect the Australian government’s focus on heightening Australia’s cybersecurity and data protection defences.

From June 2025, Commonwealth legislation will provide for a statutory tort in respect of serious invasions of privacy. The legislation will allow individuals to take action against others who intentionally or recklessly invade their privacy in circumstances where they had a reasonable expectation of privacy. The tort only applies where the invasion is serious and no public interest (such as the press freedom) overrides the public interest in the plaintiff’s privacy.

ASIC maintains a key focus on the cyber resilience of Australia’s financial markets and systems. ASIC recently commenced proceedings alleging that FIIG Securities Limited failed to take the appropriate steps as an Australian financial services licensee to ensure it had adequate cyber-risk management systems in place.

There has also been a series of class actions relating to major cybersecurity and data breaches against the ASX-listed companies Medibank and Optus for damage to their customers.

Artificial intelligence

Australian courts have issued guidelines in relation to the use of generative artificial intelligence in proceedings. The NSW Supreme Court has issued a Practice Note (SC Gen 23: Use of Generative Artificial Intelligence (Gen AI)), and the Victorian Supreme Court has issued guidelines. Similarly, the Federal Court has issued relevant guidance to the profession. This will be an area of ongoing development across Australian jurisdictions.

More broadly, Australia has developed a Voluntary AI Safety Standard. The Australian government is currently engaging in a process of consultation concerning the development of mandatory “guardrails” for the use of artificial intelligence in Australia.