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Only a very small percentage of proceedings commenced in Court ever reach a Court hearing. Most matters settle before (or during) Court proceedings. Settlement is where the parties are able to reach an agreement about the claim (eg by you agreeing with the plaintiff on how much money you owe and a reasonable way for you to pay it). It is always worthwhile trying to negotiate with the plaintiff (the person taking you to Court). Refer to our Factsheet called Negotiating with Creditors: What happens when I can't pay?
You do not have to have a lawyer to represent you in Court. If you cannot afford or do not want a solicitor to defend you, make sure you receive good advice from a Community Legal Centre, Legal Aid or the Chamber Magistrate about how to defend yourself. You need to be prepared. You will probably need to file documents before the court date and it is best if you are familiar with court procedure and protocol. Anybody can watch proceedings in a local court and it is a good idea to go to the court a couple of weeks early, on the same day of the week as your case will be heard, and watch the magistrate deal with matters that are similar to your own.
This will depend on the amount being claimed and the court in which the matter was originally brought. For debts less than $10, 000 the matter will be in the small claims division of the Local court. For claims greater than $10, 000 and up to $60, 000 the matter will be in the general division of the Local Court. Claims above $60,000 must be brought in the District or Supreme Courts depending on the amount and nature of the claim. This fact sheet deals with the small claims division of the Local Court only.
Usually if you are going to court it is because you have decided to defend the claim against you. You should have prepared your Notice of Grounds of Defence and filed it with the court within 28 days of receiving the original Statement of Liquidated Claim (refer to our Factsheet called What happens if I receive a Statement of Liquidated Claim? Insert link). If the person claiming money from you also owes you money, you should include a set off claim in your Notice of Ground of Defence or prepare and file a Cross-Claim, also within 28 days of receiving the original Statement of Liquidated Claim (refer again to our Factsheet called What happens if I receive a Statement of Liquidated Claim? Insert link). Your Defence and Cross-Claim (if there is one) would need to be "served on" (given to) the other party as well. There will be contact details on the Statement of Liquidated Claim that they served on you, and you should use these to serve them with your documents. Refer to our Factsheet called What do I do about getting forms, and filing and serving documents?.
If you have any witnesses, you should ask them to prepare a written statement of what they saw and heard. There are forms for these statements, which you can get from the court. The written statements will need to be signed by the witness and the signature witnessed by a solicitor or a justice of the peace. The statements must contain only information the person writing them knows to be true. Other evidence, such as receipts, contracts or other documents which are relevant to your case should be taken with you to court. Make sure you have the photocopies and originals, which you may need to hand up to the magistrate hearing your matter.
You will be asked to attend a pre-trial review. This is an informal meeting and is usually for the Court to see how the case is progressing. It is also an opportunity for you and the other person (or your solicitors) to try to settle the matter. Settlement is encouraged by the Court. Before the pre-trial review, try to think of what kind of settlement you would accept and what you would not accept and why. Write it down and take it with you but don't show the other party. Thinking carefully about settlement in advance may prevent you from being pressured into a settlement you do not want. It is also important to listen carefully to what the plaintiff says and to consider whether you agree with it. The pre-trial review is not a trial but you should bring evidence with you. You will receive an information sheet from the court (when it advises you of when you need to go to court) setting out what you need to do before the court date and what to bring with you.
The matter will be given a date for hearing. It is still possible to negotiate a settlement between the pre-trial review and the hearing. If you do not reach an agreed settlement, you must attend the Court hearing.
If you are not ready to have the matter heard on the hearing date you are given by the Court, you should ask to have the matter adjourned. However, you must have a good reason to obtain an adjournment eg insufficient time to seek legal advice, or ongoing negotiations for settlement. You may be asked to pay the plaintiff's costs of turning up to the hearing, if you seek an adjournment.
The Court may decide to send you to mediation. A mediation is run by a mediator who is an independent third party appointed by the Court. The mediator will assist you in clarifying the issues in dispute and possibly in reaching an agreed settlement with the plaintiff. A mediator does not have the power to make a decision on your matter and cannot force you to agree to a settlement.
The hearing will usually be run by a magistrate. During the hearing, you should call the magistrate "your honour". You may refer to the plaintiff by his or her name or as "the plaintiff".
The magistrate in the small claim division conducts the hearing with the least amount of formality possible and it is very common for people to come before the court without legal representation. If you have any questions about what is going on in the court, do not be afraid to ask the magistrate. There will often also be a legal aid solicitor in the court on the day and they may also be able to help you, even if they cannot represent you.
At the hearing, the person bringing the claim (the plaintiff) will usually present his or her case first. You may then have the opportunity to ask questions about the evidence but you will not usually be able to cross-examine the plaintiff's witnesses. Sometimes the magistrate will ask questions of the witnesses. You will have an opportunity to present all your evidence. All your witnesses should attend the hearing, just in case the magistrate wants to ask them questions. However, if they can't attend, they can sign an Affidavit or Statutory Declaration about their knowledge of the facts in your case. (If a witness is subpoenaed they MUST attend). The plaintiff may be given the opportunity to ask about your evidence but will not usually be allowed to question your witnesses.
It is important to remain calm and polite during your Court hearing regardless of what the plaintiff or the plaintiff's witnesses say or do.
You are allowed to bring an interpreter and should give the court some notice of this. In most cases, you will have to organise your own interpreter. If you need an interpreter and one is not available, ask for the matter to be adjourned until you can organise an interpreter. You will have to pay for your interpreter in most debt matters so it is best to find out how much it will cost before you go to court. You should also make sure you have an interpreter when you receive legal advice.
You may have to. There are limits to the costs that can be claimed though. Usually you will have to pay the costs for specific things, such as filing fees and service. You might also have to pay the costs of the other party's solicitor. If you win you can ask for your own costs to be paid, but you should have evidence of what these costs are.
One option is to ask the Magistrate or apply later to the Court to pay by instalments. This might reduce the financial burden on you. Otherwise, the person who is seeking to have the judgment enforced can take other actions to get their money. They might be able to take money from your wages or bank account or sell some of your goods. See the fact sheet called What happens when I have a judgment debt to pay?.
Produced by Redfern Legal Centre.
This factsheet is no substitute for legal advice. If you have a problem
please seek legal advice from your local community legal centre
Last updated January 2006