Please be aware that the following information may specifically relate to South Australian law and may be of no assistance to those in interstate jurisdictions. This information is supplied by the Riverland Community Legal Service however Riverland Community Legal Service takes no responsibility for its contents. Every attempt has been made to ensure the accuracy and currency of this information at time of publication however individuals must take care to ensure that this information has not become out of date. Persons with legal disputes are urged to seek qualified legal advice wherever available.
Should I speak to a lawyer?
It can never hurt to be aware of your legal rights and obligations, even if you decide not to proceed with the matter any further. Sometimes peace of mind is all you may need. The earlier you speak to a lawyer the better; sometimes early intervention will stop the dispute from escalating, and in certain matters there will be limitation dates after which you will not be able to initiate proceedings. Often a lawyer will be able to suggest an alternative way of resolving your dispute, such as making a complaint to the relevant ombudsman or suggesting a service provider that specialises in the relevant area.
Somebody has threatened to take me to court, what should I do?
Speak to a lawyer; your best course of action will vary wildly depending on how serious the other party is and the substance of the dispute. Usually you will receive advanced notice before someone files a claim against you in court, and you can use this time to negotiate with the other party with a view to resolving the matter. It’s never a good idea to ignore letters threatening legal action.
Someone has filed a claim against me, should I respond?
Always. If it is a Magistrates Court claim you will normally have 21 days from the date of service to file a defence in the Court. If you don’t file a defence, the Court will assume that you do not dispute the allegations and judgment may automatically be entered in the other party’s favour.
See Magistrates Court Civil Forms to locate a defence form, or otherwise contact your local court.
What is a minor civil claim?
If the total amount you are seeking is less than $25,000.00, your matter will be classed as a minor civil claim. Other matters heard as minor civil claims include neighbourhood disputes, disputes concerning the Fences Act and disputes concerning the Retail and Commercial Leases Act.
How do I file a minor civil claim?
You will need to draft a claim in which you set out who the other party is, how you think the other party is liable to you and the remedy that you are seeking. Often it can help to draft up an affidavit in support of your application (you will need an authorised person to witness your signature). A properly drafted affidavit will help the Court to understand the background details of your claim, and should cut down on the number of questions that need to be asked.
See Magistrates Court Civil Forms to locate a minor civil claim form, or otherwise contact your local court.
How much does it cost to file a minor civil claim?
At time of writing the cost for filing a minor civil claim is $120.00. See Magistrates Court Fees to inquire as to the cost of filing a claim, or otherwise contact your local court.
What happens next?
Once the defendant is served with your claim, he or she will have 21 days to file a defence in the Court (you will receive a copy of this). You will also be notified of the date of your “directions hearing”. This is a preliminary examination of the substance of your dispute, and is not the date of your trial. You do not need to bring your witnesses to a directions hearing, but be prepared to explain why you have filed a claim, the outline of your argument, and what other steps you have taken to negotiate with the other party. If no resolution can made you will likely receive a trial date.
What will the trial be like? Do I need a lawyer?
Minor civil claims are generally less formal than other proceedings, and the rules of evidence and procedure are less strict. Make sure you are prepared on the day, that any witnesses you wish to call are available and ready, and that you have all the documents you intend to rely upon. Unlike other court proceedings, the Magistrate will take a more active role in questioning both parties, so don’t be too worried if you’re unsure about the proper procedure. Be respectful and polite to the Magistrate, and make sure your responses are easy-to-follow (think to yourself, “If I was hearing about this matter for the first time what would I want to know?”). Ultimately the Magistrate will make a judgment and the successful party may be entitled to recover costs associated with the proceedings.
Lawyers are rarely involved in minor civil claims as the Court prohibits them from appearing except in certain circumstances (eg. when the person you are suing is also a lawyer). It’s always a good idea to seek legal advice prior to your court date, if only to better prepare for the day.
See also: Minor Civil Law