How to Manage the First 90 Days of a Commercial Dispute in Australia (2026): Urgent Steps, Evidence Preservation & Case-management Checklist

Knowing how to manage the first 90 days of a commercial dispute in Australia is now the single most consequential skill a general counsel, CFO or director can bring to a contested matter. Australian courts, Federal and State, are front-loading litigation harder than ever in 2026, compressing disclosure timetables and expecting parties to have preserved evidence, assessed urgent relief options and prepared a realistic case-management proposal well before the first directions hearing. This guide provides a day-by-day, 0–90 day playbook covering evidence preservation, interlocutory relief (freezing orders and urgent injunctions), the documents needed to commence proceedings, indicative costs and the procedural deadlines that will shape the trajectory of a commercial claim.

It applies to contract and transactional disputes, payment defaults, construction claims, insolvency-adjacent enforcement and matters involving regulator contact from the ACCC or ASIC.

Overview of the Process and Who It Applies To

Commercial dispute resolution in Australia encompasses negotiation, mediation, arbitration and litigation. The remedies available range from damages and declarations to specific performance, injunctions and asset-preservation orders. This checklist is designed for decision-makers who need a structured response from the moment a dispute crystallises, whether that trigger is a demand letter, a statutory notice, a payment default or a regulator’s enquiry under section 155 of the Competition and Consumer Act 2010 (Cth).

The procedure applies across courts exercising commercial jurisdiction, including the Federal Court of Australia (under its National Court Framework), State Supreme Courts (notably the NSW Commercial List, the Victorian Commercial Court and Queensland’s commercial list) and specialist corporations and insolvency lists. Where a dispute is amenable to alternative dispute resolution, early case management should include parallel ADR planning, many court practice notes now mandate or strongly encourage mediation before trial.

Before diving into the step-by-step procedure, here is a TL;DR checklist of five immediate actions:

• Preserve evidence. Issue a litigation hold on Day 0. Freeze email deletion policies and create forensic snapshots of servers.
• Stabilise cashflow. Assess the financial exposure and secure board or executive authority for a litigation budget.
• Assess urgent relief. If there is any risk of asset dissipation, begin preparing a freezing order application immediately.
• Appoint external counsel. Instruct a senior litigator with relevant court experience within 72 hours.
• Start a chronology. Build a living timeline of key dates, communications and contractual milestones from day one.

Eligibility and Prerequisites for the 0–90 Day Playbook

Which Court or Mode to Use

The choice of court depends on the subject matter, the value of the claim and any contractual forum clauses. The Federal Court handles matters arising under Commonwealth legislation, including the Corporations Act 2001 (Cth) and the Competition and Consumer Act 2010 (Cth), and exercises associated jurisdiction over related claims. Its Practice Note C&C-1 sets out the arrangements for managing commercial and corporations cases within the National Court Framework. State Supreme Courts hear general commercial disputes and offer specialist lists (e.g., the NSW Commercial List governed by the Supreme Court’s equity and commercial practice notes under the Uniform Civil Procedure Rules 2005 (NSW)). ADR options, mediation, expert determination and arbitration, should be mapped against contractual dispute-resolution clauses before proceedings are issued.

Immediate Internal Prerequisites

Before engaging external lawyers, ensure three internal gates are cleared. First, obtain executive or board authority to incur legal costs and, where necessary, provide undertakings as to damages. Second, appoint a single internal point of contact (typically in-house counsel or the CFO) who can coordinate across IT, finance and operations. Third, check limitation periods. Most States impose a six-year limitation for contractual claims, but shorter or extended periods apply under specific statutes. Verify the relevant limitation date immediately, it is one of the few deadlines in litigation that cannot be extended by consent or court order.

Step-by-Step Procedure: How to Manage the First 90 Days of a Commercial Dispute in Australia

The following phased plan breaks the first 90 days into six stages. The consolidated timeline table below maps each step to the responsible party and its typical duration.

Phase 0: Immediate Containment (Day 0–3)

Evidence preservation is the highest priority. On Day 0, issue a written litigation hold to IT, finance and any custodian of potentially relevant documents. The hold must cover email servers, cloud storage, messaging platforms, CCTV footage, access logs and physical files. Instruct IT to create immutable forensic snapshots of relevant servers and user accounts. Suspend automated document-destruction or retention-policy deletions. Maintain chain-of-custody records for every item collected. This step is governed by the general duty to preserve evidence once litigation is reasonably contemplated, a principle reinforced by the Evidence Act 1995 (Cth) and equivalent State legislation.

Simultaneously, restrict access to sensitive commercial data. If the dispute involves a departing employee, joint venturer or distributor, review and lock shared-drive permissions, VPN access and CRM exports.

Phase 1: Early Assessment and Notice (Day 4–14)

With evidence secured, conduct a rapid legal triage. Review the relevant contract(s), identify notice requirements (many commercial agreements mandate a cure period or specified dispute-resolution steps before litigation may commence) and map potential causes of action and defences. Build a chronology, a living document that logs every relevant date, communication and approval.

Instruct an external senior litigator with relevant court experience. Together with counsel, prepare a preliminary damages assessment and identify any cross-claims or set-off arguments. If a regulator is involved, for example, if the ACCC has issued a section 155 notice, obtain specialist advice immediately, as non-compliance with a s.155 notice is a criminal offence.

Consider sending a formal letter of demand or a without-prejudice offer to explore ADR. Early engagement signals reasonableness to the court and can reduce costs exposure later.

Phase 2: Urgent Interlocutory Relief (Day 1–30, If Required)

If there is a genuine risk that a counterparty will dissipate assets, destroy evidence or cause irreparable harm, apply for urgent interlocutory relief without delay. The two most common forms are:

• Freezing orders (Mareva injunctions). These restrain a respondent from dealing with assets up to a specified value. The applicant must demonstrate a good arguable case on the merits and a real risk of asset dissipation. Courts require a full and frank disclosure of all material facts, an undertaking as to damages and, frequently, security for damages. The freezing order process can be initiated ex parte (without notice) in cases of extreme urgency.
• Interlocutory injunctions. An urgent injunction in NSW or other State courts requires the applicant to show a serious question to be tried and that the balance of convenience favours granting the injunction. The applicant must also give the usual undertaking as to damages.

Affidavit evidence must be thorough: attach a clear chronology, documentary exhibits, asset-search results (PPSR and ASIC register extracts) and any evidence of dissipation or threatened destruction. If the application is ex parte, the applicant has an overriding duty to bring all relevant matters, including those adverse to the application, to the court’s attention.

Phase 3: Commencing Proceedings and Early Case Management (Day 15–60)

If ADR has not resolved the dispute, commence formal proceedings. The originating process, the form and procedure vary by court, is the foundational document. In the Federal Court, proceedings are commenced by filing an originating application and supporting affidavit. In the NSW Supreme Court, proceedings in the Commercial List are commenced under the procedures set out in the Uniform Civil Procedure Rules 2005 (NSW). Check the relevant court rules to confirm the correct form and filing requirements.

After filing, serve the originating process and supporting documents on each respondent. Seek an early case management conference or directions hearing. Under the Federal Court’s National Court Framework, the docket judge will typically schedule a first case management conference shortly after filing, and the court expects the parties to have conferred on timetabling before that conference. Approach the first directions hearing with a proposed timetable that covers pleadings, evidence and mediation.

Phase 4: Disclosure and Preservation Compliance (Day 30–90)

Begin preparing for disclosure as soon as proceedings are on foot. Compile a catalogue of all documents within your possession, custody or control that are relevant to the issues in dispute. Prepare a privilege log identifying documents over which legal professional privilege (advice privilege or litigation privilege) is claimed. Agree an ESI protocol with the opposing party, covering file formats, metadata fields, de-duplication and search terms, to reduce cost and avoid later disputes about the adequacy of electronic discovery.

The disclosure timeline varies by court: the Federal Court may direct disclosure within 28–60 days after pleadings close, while State courts impose their own timetables. Under the trend toward front-loaded early case management, courts increasingly expect parties to begin document collection and privilege review well before the formal disclosure deadline. Compliance with the Australian Privacy Principles under the Privacy Act 1988 (Cth) must also be considered when handling personal information during ESI collection.

Phase 5: Costs Control and Settlement Planning (Day 30–90)

Set budget gates at the 30-day and 60-day marks. Review actual spend against the litigation budget approved by the board or executive. Reassess the merits and quantum as new documents emerge. Carve out a settlement-negotiation window, ideally before interlocutory costs escalate. If the matter involves cross-jurisdictional enforcement (foreign counterparties or offshore assets), plan the enforcement strategy early, as recognition and enforcement of Australian judgments abroad may require separate proceedings.

Required Documents and Information for Early Commercial Litigation in Australia

The following table consolidates the documents needed during the first 90 days. Gather these items early, organise them chronologically and provide them to external counsel in a structured, indexed format.

Timeline and Key Deadlines in Australian Commercial Litigation

The litigation timeline in 2026 is shaped by courts’ increasing insistence on early case management. The table below summarises typical procedural deadlines. Note that exact timeframes are jurisdictional, always verify deadlines in the specific court rules and any directions orders that apply to your matter.

The disclosure timeline deserves particular attention. Under the Federal Court’s Practice Note C&C-1, the court expects the parties to address discovery at the first case management conference and will often set a disclosure timetable considerably tighter than the default rules allow. In the NSW Commercial List, disclosure directions may be tied to the complexity categorisation of the case. Begin document collection and privilege review as soon as proceedings are reasonably contemplated, waiting until a formal order is made is a common and costly mistake.

Indicative Costs, Fees and Tax Considerations

Costs vary significantly by jurisdiction, complexity, counsel seniority and urgency. The following table provides indicative cost bands for the early stages of a commercial dispute. All figures are approximate and should be verified with instructed counsel before budgeting.

Legal costs incurred in earning assessable income or in carrying on a business are generally tax-deductible. However, the treatment of specific items, such as capital-account costs in enforcement proceedings or costs of defending regulatory penalties, requires case-by-case tax advice.

What Changes in 2026: Front-Loaded Litigation and the New Case-Management Landscape

The litigation timeline in 2026 reflects a systemic shift toward earlier and stricter case management. The Federal Court’s Practice Note C&C-1 continues to emphasise the National Court Framework, under which docket judges actively manage matters from filing and expect the parties to arrive at the first case management conference with an agreed or competing timetable that addresses pleadings, evidence, discovery and ADR.

Industry observers expect this trend to accelerate. The practical consequence is that decisions once deferred until after close of pleadings, scope of discovery, expert appointment, mediation timing, must now be addressed in the first 90 days. Early indications suggest courts are also placing greater scrutiny on evidence preservation, with judges increasingly willing to draw adverse inferences or impose costs sanctions where a party’s litigation hold was inadequate or delayed.

For businesses, the message is clear: the first 90 days of a commercial dispute in Australia are no longer a preliminary phase. They are the period in which the case-management architecture is set, the evidence base is locked in and, in many matters, the realistic settlement range is established. Failing to treat them as such carries material cost and strategic risk.

Common Pitfalls and How to Avoid Them

• Delayed litigation hold. Postponing the IT hold even by a few days can result in automated deletion of emails or overwriting of backup tapes. Implement the hold on Day 0, preserve native file formats and metadata, and document every step.
• Commencing proceedings without securing assets. Filing an originating process before applying for a freezing order gives the respondent notice and time to move assets offshore. If asset-flight risk exists, prepare the freezing order application concurrently and, where justified, apply ex parte before serving the originating process.
• Incomplete affidavit evidence. Courts regularly criticise affidavits that lack a clear chronology, omit adverse facts or fail to exhibit key documents. Use a structured chronology template and interview witnesses promptly while recollections are fresh.
• Failing to verify limitation periods. Limitation periods vary by State, cause of action and, in some cases, by contract. Check the relevant limitation statute immediately and suspend any internal document-destruction procedures until the position is confirmed.
• Poor internal delegation. Disputes stall when no single person has authority to instruct counsel, approve budgets and coordinate IT holds. Appoint one internal lead and establish clear decision triggers and budget gates from the outset.

Sources

1. Federal Court of Australia, Commercial and Corporations Practice Note (C&C-1)
2. Law Council of Australia, Case Management Handbook
3. Legislation.gov.au, Evidence Act 1995 (Cth)
4. Legislation.gov.au, Corporations Act 2001 (Cth)
5. NSW Legislation (including Uniform Civil Procedure Rules 2005)
6. Supreme Court of New South Wales, Practice Notes
7. Australian Competition & Consumer Commission (ACCC)
8. Australian Securities & Investments Commission (ASIC)
9. Office of the Australian Information Commissioner (OAIC)
10. Australasian Legal Information Institute (AustLII)