Parties to legal proceedings in the Local Court have an obligation to assist the Court in obtaining a just, quick and cheap resolution to their matter. The NSW Local Court has jurisdiction to determine matters claiming up to $100,000. Claims of less than $10,000 are heard in the Small Claims Division of the Local Court. This article aims to set out some of the processes and procedures relevant to the General Division of the Local Court.
Default Judgment and Dismissal of the Statement of Claim
Once a plaintiff (the person making the application) has filed a statement of claim with the Court, it must then be served on the defendant. The defendant then has 28 days to file their defence. If the defendant fails to file their defence, the plaintiff can make an application to the Court for a default judgment.
If a defendant fails to file their defence and the plaintiff subsequently fails to file an application for default judgment, the Court will dismiss the proceedings after a period of 9 months.
Proceedings are listed for call over within six weeks of the defence being filed. During the first call over, the Court will give the parties directions designed for a swift determination.
Common directions that are given by the Court include:
- the filing and service of any additional pleadings;
- the allocating of a return date for any subpoena (if necessary);
- the referral of the parties to mediation or arbitration;
- the filing and service of evidence; and
- listing the matter for trial and pre-trial review.
If a trial date is not set, the matter will be listed for a second call over, usually 28 days after the first call over date. At the second call over the Court will decide whether previous orders have been complied with. If the parties are ready to proceed, a trial date will be set. However, if the parties have failed to comply with previous orders and are not ready to proceed, the Court will list the matter for a directions hearing.
A pre-trial review is listed four weeks before a trial date. During a pre-trial review, the Court will confirm whether the parties have complied with all previous court directions and whether the parties are ready to proceed to trial.
It is important that the parties are ready to proceed to trial at this point. If the parties have still not complied with previous court orders or directions, the Court can dismiss the proceedings or cross-claim or strike out a defence. A non-complying party can also be not permitted to rely on evidence filed or served out of time. The Court can also make costs orders against any non-complying party.
In some circumstances, parties are permitted to appear at a Court trial via a telephone or audio-visual link. Any party wishing to do so must make an application to the Court when the matter is listed for trial. If the Court grants a party leave to appear via telephone on a visual link, it is that party’s responsibility to make all necessary arrangements.
Discovery of Documents
The Local Court does not make standard orders for discovery. In order to obtain an order for discovery, a party must make an application (via notice of motion) to the Court within 14 days after evidence has been served. The party seeking the order must satisfy the Court that discovery is necessary. That party must also confirm the class of documents that are being sought, together with the likely costs associated with that discovery.
Any party wishing to issue a subpoena must do so as early as possible. Any party not legally represented must seek leave of the Court to issue a subpoena. Once a subpoena has been filed, the Court will list the matter for a return date. For further information about subpoenas, see our article “Subpoenas. What do I need to know?”.
A party that wishes to rely on expert evidence must seek leave from the Court do so. The Court must be advised on the specific areas where expert evidence is required. If the parties can agree, expert evidence can be given by a single expert. Otherwise, the parties will need to each retain their own experts who must prepare a joint report.
At the end of a trial, the Court can hear arguments in relation to costs including any application being made for indemnity costs. The Court can either fix a specific amount in respect of costs or can order that costs be ‘as agreed or assessed’. A party seeking a costs order, should be ready to provide the Court with a summary of the fair and reasonable costs being sought.
Court proceedings can be complex and sometimes difficult to understand. Engaging a solicitor to represent you in Court proceedings can be incredibly beneficial. LegalVision’s litigation experts are happy to assist you in any aspect of your Local Court proceedings.