power point - Magistrates Court

in the
Reproduced with permission of the
Magistrates Court of South Australia
whose assistance is gratefully
What is a Minor Civil Claim?
The limit for a minor civil claim is $5,000.
Claims can be made to recover money arising from
situations such as:
• Unpaid debts
• Damage from a motor vehicle accident
• Property damage
• Services rendered
• Residential tenancy disputes
Why make a Minor Civil
Legal costs are avoided because parties must represent
(A party may only request Court permission to have legal
representation in special circumstances, for example if
the other party is a solicitor or you have an intellectual
Filing the Claim
The first step is to file a claim.
Claim forms are available from the Magistrates Court
website at:
The claim form must be filed at the nearest Magistrates
Court Registry.
Four copies of the claim are required by the Court.
Include in the claim:
• The exact amount to be claimed (attach copies of
quotes and invoices)
• The name and address of the other party (Note: special
rules apply for companies and businesses.)
• The date(s) of the dispute
• The "cause of action" (the factual basis upon which the
money is owed)
• The order(s) the claimant wants the Court to make eg.
vacant possession of premises; payment of $X etc
If the claim is against a
If the other party’s name includes “Pty Ltd”, the company’s
correct name and the address of its registered office will
need to be provided.
The Australian Securities & Investments Commission
(ASIC) has a list of registered companies.
The contact details for ASIC offices is:
If the claim is against a
Business …
If businesses trade under a registered business name
(either as a partnership, or as a sole proprietor) it is
essential to know the owner of the business, the correct
business name and the business address.
The Australian Securities & Investments Commission
(ASIC) maintains a list of business names.
The contact details for ASIC offices is:
Serving the Claim
After it has been filed at the Court registry, the claimant
must serve the claim on the defendant (the other party).
The claim can be served on the defendant by the
claimant personally, or engage a process server to do so.
The claim will be given an "action number“ by the Court.
This is a reference to quote whenever enquiries are made
at the Court registry.
Wait 21 Days
The claimant is in charge of the claim. The Court will not
take any further steps unless requested to do so.
Once the claim has been served, the defendant has 21
days in which to:
• Pay the full amount, or part of the amount, of the claim
to the claimant
• Agree to settle out of Court
• Defend the claim
If the Defendant does nothing
If 21 days have passed since the Claim was served and
the defendant has not responded, the claimant can go to
the Magistrates Court registry and ask for Judgment to be
entered in their favour.
This is called a Default Judgment.
Default Judgment allows the claimant to move to the next
step in the process called Enforcement.
Defended Claims
If the defendant defends the claim, a copy of the Defence
will be sent to the claimant.
The Court will then usually fix a date for a Conciliation
Conference in an effort to negotiate a resolution without
going to Court.
In some cases, the claim will be set down for a Directions
Hearing before a Magistrate first to determine the best
way for the matter to proceed.
What is a Directions Hearing?
Parties may need to attend an informal Court appearance
before a Magistrate to assist parties in exploring available
options and explaining Court procedures.
Parties may choose to settle the matter, go to mediation,
or elect to go directly to trial.
A Negotiated Settlement
Be willing to negotiate towards settlement because
proceeding to trial can be an emotional and financial
What is Conciliation?
Conciliation involves the assistance of a neutral third
party (a conciliator or mediator) and enables parties to
negotiate a mutually agreeable resolution without going to
It is cheaper.
If successful, it may assist in maintaining a favourable
relationship between the parties.
What is Conciliation?
Conciliation Conferences are conducted in a conference
room rather than a courtroom, which creates a more
relaxed environment.
A legally binding agreement, acceptable to both parties,
can be drawn up at the Conciliation Conference.
A conciliation proceeding is confidential, whereas a trial
is open to the public.
Conciliation is Free
There is no cost for this service if a Court conciliator is
appointed to mediate a Minor Civil Claim.
If a party wishes to have a private conciliator, that party
will be responsible for contacting that person and for the
payment of their fees.
Conciliation is always available to anyone as a first
option in resolving any matter before seeking Court
Parties will need to make discovery of all the relevant
documents you intend to rely on in Court. This means
creating a list of relevant documents, and giving copies of
these documents to all other parties and to the Court.
If a party attempts to use a document in Court that they
have not disclosed to the other party, they run the risk of
the Magistrate excluding it.
This Court process ensures there are no surprises for
either party in the trial and maintains fairness.
Presentation in Court
Parties may seek legal advice about the claim, however
the general rule for minor civil actions is that lawyers are
not allowed at the trial.
Exceptions are made if one party is a lawyer, or both
parties agree, or if the Court thinks a party would be
unfairly disadvantaged if not represented.
Presentation in Court
Each party will need to present their evidence
themselves via relevant witnesses, documents and
exhibits. The Court may assist you, as these trials are
conducted as an inquiry by the court rather than an
adversarial contest.
The Court will expect parties to limit the issues for trial.
Trials are expensive and should focus on the essential
issues only.
Procedure in Court
At trial, the Claimant will commence by giving an opening
statement (a summary of their claim), followed by the
calling of any witnesses. Both parties are entitled to
question each witness. After witnesses have been called
and the evidence presented, the claimant may sum up
their case in their closing address.
The Defendant will then present their case in the same
After this has been done the Magistrate will deliver a
Written witness statements may be used in Court although
they may be required to give their evidence in person so
that the other party can question them if they choose.
Written witness statements must be in the form of an
Affidavit or Statutory Declaration.
Limit the number of witnesses to those necessary, as each
witness costs you money to be heard in court.
The parties (not the Court) will be responsible for payment
of any expenses that your witnesses incur in attending
Court. You may be able to recover those expenses from the
other party if you win the case.
Expert Reports
If there is an unresolved matter between the parties:
The parties may engage an appropriately qualified
expert to prepare a report on the issues, and to give
evidence at the trial; or
The Court may appoint an expert to make an
independent assessment.
If a party is going to rely on an expert report, they should
send a copy of it to the other side not less than 21 days
before the trial date.
Third Party Claims
Advice for Defendants:
If the defendant admits partial liability and believes that a
third party is also at fault and should contribute to paying
the claimant’s claim, the defendant can take steps to join
that party to the proceeding. A ‘Third Party Notice’ does
This must be done at an early stage and not left until the
If having an interpreter would help you or any of your
witnesses, the Court will provide an interpreter free of
You must contact the Court Registry in advance if you
need an interpreter.
Costs are kept to a minimum in minor civil actions, but
the Magistrate may award the winner compensation for
nominal witness fees, expenses etc.
The Court can only award legal costs if a lawyer has
been engaged by a party and (in rare circumstances) the
lawyer has represented that party at trial.
The Court does not generally make orders
compensating a self-represented party for the time spent
on preparing the claim or conducting the trial.
Ensuring you have followed Court procedures will assist
in conducting your case and prevent costs being
unfavourably awarded against you.
In some cases, costs are awarded against parties for
unduly wasting Court time, for example coming to Court
unprepared. Be aware that it is very important that you
come to Court prepared and be courteous to everybody,
including the other party.
Addressing the Magistrate
Addressing the Magistrate
You may refer to the Magistrate as “Your Honour”, or
“Sir” or “Madam”.
It is important to speak to the Magistrate with respect.
Avoid interrupting, and ensure you direct your answers
to the questions you are asked by the Magistrate.
You do not need to wear a suit to Court, but it is
important to be neat and presentable.
Make sure you bring all of your evidence, for example
invoices and witness statements, to Court for all of
your proceedings.
If a party has received Judgment, either by trial or by
default, and the other party still hasn’t paid, there are
certain Court orders which are part of the enforcement
process that can be obtained to assist in the recovery
of money:
• Warrant to Sell Property
• Garnishee
• Judgment Summons
Warrant to Sell Property
This Warrant can be issued by the Court to a Bailiff or
Assistant Bailiff to seize and sell goods owned by the
judgment debtor (person ordered to pay money in the
judgment) to the value of the amount owing, plus expenses
of enforcement.
It is valid for 12 months from the date of issue.
The Warrant does not allow for the sale of personal clothing
or bedding or tools of trade up to a value of $3,000.
Real property (eg, house and land) can also be seized and
sold under a Warrant to Sell Property.
A garnishee can be issued where you know that:
•the judgment debtor is in receipt of income (eg.
salary or wages); or
•a third person owes the judgment debtor money.
You can obtain a Court order that the money be paid
directly to you rather than to the judgment debtor.
Judgment Summons
This order requires the judgment debtor to come to Court
for an investigation of how they can pay the judgment
debt. The judgment debtor can be questioned under oath
about their assets and liabilities, income and expenses.
The summons must be served personally on the judgment
debtor by the judgment creditor (person who is owed
money in the judgment) or a process server.
Under the Debtors Act 1870, the judgment debtor must
also be provided with “conduct money” to cover the cost of
travel from their home to the Court.
Judgment Summons
Once the summons is served, the judgment creditor will
have to appear in court when the judgment debtor
attends. The judgment creditor will have a chance to ask
questions about their ability to pay the judgment.
The Court will only make an order if satisfied that the
defendant has the means to pay the Judgment Debt.
Caveat on Land Titles
A Caveat can be lodged on the judgment debtor’s title
deeds when it is known that the judgment debtor owns
real estate either in their own name, or jointly with
someone else.
A Caveat can be registered at the Lands Titles Office
(LTO). Contact details for the LTO can be found at:
See section 134 of the Land Titles Act 1980 for the
Caveat on Land Titles
Once registered, the judgment debtor cannot deal further
with that land until the debt to the judgment creditor is
Charging Order
A Charging Order can be made when the judgment
creditor knows that the judgment debtor owns shares,
debentures, stock or other securities.
Procedures for obtaining a Charging Order are set out in
the Supreme Court Rules 2000, Part 36.
A Charging Order can be registered at the Australian
Securities & Investments Commission (ASIC).
Once registered, the judgment debtor cannot deal
further with those securities until the debt to the
judgment creditor is paid.
If the claimant or judgment creditor wishes to discontinue
their action at any stage, they must notify the Court and
the defendant or judgment debtor either in writing or by
completing a Notice of Discontinuance.
Parties may choose to seek legal advice from:
• a lawyer; or
• the Legal Aid Commission of Tasmania; or
• Community Legal Services
Staff at Magistrates Court registries are not permitted to
provide legal advice, except in relation to procedural
matters only.
Legal Aid Commission
The Legal Aid Commission of Tasmania offers free legal
• via its Telephone Advice Service on 1300 366 611
• at clinics held at its offices.
No appointment is necessary.
Information about these services, and contact details for
Legal Aid Commission offices, can be found at:
Community Legal Services
Hobart Community Legal Service Inc
166 Macquarie Street
Hobart Tasmania 7000
Telephone: (03) 6223 2500
Hobart Community Legal Service Inc
Cove Hill Fair Shopping Centre
Bridgewater Tasmania 7030
Telephone: (03) 6263 4755
Community Legal Services
Northern Community Legal Service Inc
4A George Street
Launceston Tasmania 7250
Telephone: (03) 6334 1577
North West Community Legal Service Inc
62 Stewart Street
Devonport Tasmania 7310
Telephone: (03) 6424 8720
Community Legal Services
The Tenants Union of Tasmania
166 Macquarie Street
Hobart Tasmania 7000
Telephone: (03) 6223 2500
Office of Consumer Affairs & Fair Trading
15 Murray Street
Hobart Tasmania 7000
Telephone: (03) 6233 4503 or 1300 654 499
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