If you are commencing legal proceedings in the New South Wales (NSW) Local Court, you have an obligation to assist the court in obtaining a just, quick and cheap resolution to your matter. The NSW Local Court has the power 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 will explain some of the processes and procedures relevant to the NSW Local Court. Therefore, you will be informed at every step of the process.
Default Judgment and Dismissal of the Statement of Claim
Once you, a plaintiff, have 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, you can make an application to the court for a default judgment.
If a defendant fails to file their defence and you subsequently fail to file an application for default judgment, the court will dismiss the proceedings after a period of nine months.
Proceedings are listed to appear in court within six weeks of the defence being filed. During the first appearance, the court will give the parties directions designed for a swift determination.
Common directions that the court gives include:
- filing and service of any additional pleadings;
- allocating of a return date for any subpoena (if necessary);
- referral of the parties to mediation or arbitration;
- filing and service of evidence; and
- listing of the matter for trial and pre-trial review.
If a trial date is not set, the matter will be listed for a second appearance, usually 28 days after the first one. At the second appearance, the court will decide whether previous orders have been complied with. If both 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.
Proceeding to Trial
A pre-trial review is listed four weeks before a trial date. During a pre-trial review, the court will confirm whether both parties have complied with all previous court directions.
It is important that both 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. If you do not comply, you may also not be permitted to rely on evidence filed or served out of time. The court can also make cost orders against any non-complying party.
In some circumstances, you are permitted to appear at a court trial via a telephone or audio-visual link. If you wish to do so, you must make an application to the court when the matter is listed for trial. If the court grants you leave to appear via telephone on a visual link, it is your responsibility to make all the necessary arrangements.
Discovery of Documents
Discovery refers to the pre-trial procedure where you can request evidence from the other party. This evidence will likely build on the basis of your case.
To obtain an order for discovery, you must make an application (via notice of motion) to the court within 14 days after evidence has been served. You must satisfy the court that discovery is necessary. You must also confirm the class of documents that are being sought, together with the likely costs associated with that discovery.
A subpoena is a formal court order which will be served on someone who is not a party to the court proceedings at hand. It orders that the person produces documents or provides oral evidence for the matter.
If you wish to issue a subpoena, you must do so as early as possible. If you are not legally represented, you 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.
If you wish to rely on expert evidence, you must seek leave from the court to 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 defendant and yourself will each need to retain your own experts who must prepare a joint report.
At the end of a trial, the court can hear arguments in relation to costs. These will include any applications for the other party to pay the winning party’s legal costs. The court can either fix a specific amount in respect of costs or can order that costs be ‘as agreed or assessed’. If you seek a costs order, you should be ready to provide the court with a summary of the fair and reasonable costs that you seek.
If you wish to commence proceedings through the NSW Local Court, you should be aware of the court process. Court proceedings can be complex and sometimes difficult to understand. Therefore, engaging a solicitor to represent you in court proceedings can be incredibly beneficial. If you have any questions about court proceedings, contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.
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