power point - Magistrates Court

MINOR CIVIL CLAIMS in the

MAGISTRATES COURT of TASMANIA

Reproduced with permission of the Magistrates Court of South Australia whose assistance is gratefully acknowledged.

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 Claim? Legal costs are avoided because parties must represent themselves. (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 disability.)

Filing the Claim The first step is to file a claim. Claim forms are available from the Magistrates Court website at: www.magistratescourt.tas.gov.au/divisions/civil/forms 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 Company… 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: www.asic.gov.au

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: www.asic.gov.au

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 strain.

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 Court. 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.

REMEMBER

Conciliation is always available to anyone as a first option in resolving any matter before seeking Court intervention.

HOW A CLAIM PROCEEDS TO TRIAL

Discovery 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 manner. After this has been done the Magistrate will deliver a judgment.

Witnesses 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. This must be done at an early stage and not left until the trial.

Interpreters

If having an interpreter would help you or any of your witnesses, the Court will provide an interpreter free of charge. You must contact the Court Registry in advance if you need an interpreter.

Costs 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.

Costs 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.

HINTS FOR REPRESENTING YOURSELF IN COURT Addressing the Magistrate

Dress Preparation

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.

Dress

You do not need to wear a suit to Court, but it is important to be neat and presentable.

Preparation

Make sure you bring all of your evidence, for example invoices and witness statements, to Court for all of your proceedings.

RECOVERY OF MONEY 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.

Garnishee 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:

www.dpiw.tas.gov.au See section 134 of the Land Titles Act 1980 for the procedure.

Caveat on Land Titles Once registered, the judgment debtor cannot deal further with that land until the debt to the judgment creditor is paid.

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.

DISCONTINUANCE

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.

WHERE DO I OBTAIN FURTHER INFORMATION? 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 advice:

• 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: www.legalaid.tas.gov.au

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