If you are commencing proceedings, or you have been served with a Claim for the Small Claims Division of the Local Court, you should make yourself aware of the requirements and procedures involved. It is helpful to understand what sort of matters you can commence in the Small Claims Division of the Local Court, and the general processes that the proceedings take.
The Purpose and Jurisdiction of the Small Claims Division
The Small Claims Division of the Local Court hears matters where the claim is $10,000 or less. If the amount claimed is over $10,000, proceedings should commence in the General Division of the Local Court.
The Small Claims Division has procedures in place that differ from those in the General Division of the Local Court, the District Court and the Supreme Court. The Small Claims Division process is designed to enable the just, quick and cheap resolution of disputes. The Court aims to have proceedings concluded within six months of the date of filing the initial claim. Rather than a Registrar or Magistrate, a dedicated Assessor will facilitate the proceedings.
If proceedings are particularly complex, they can be transferred to the General Division of the Local Court.
Due to the small amount of individual claims in the Small Claims Division, parties to the proceedings can choose to represent themselves. It is still a good idea to seek initial legal advice from a solicitor if you decide to represent yourself. A solicitor with experience in dispute resolution and litigation can provide you with advice about the strength of your originating claim or defence and the evidence you will need to provide to the Court.
Remember that the Small Claims Division does not provide interpreters for self-represented parties. The Court will, however, generally allow a friend to provide interpretation assistance.
Process and Procedure
Unlike the higher Courts, the Small Claims Division does not conduct directions hearings, mentions or call overs. There is also no general ‘right’ to issue a subpoena or obtain an order for discovery or production of documents. If a party wishes to do so, they must seek leave from the Court. Leave will not be granted unless the party seeking the order can satisfy the Court that they know what exact documents they require and why they require it.
The only Court attendances required during proceedings is the pre-trial review and the actual trial or hearing of the matter. The pre-trial review is split into two distinct parts. The first part concerns conciliation and the second part is the ‘review’ of the matter.
- The Assessor will send the parties out of the Courtroom to discuss the matter among themselves. The parties are expected to explore settlement options. If settlement cannot be reached, the parties should consider and address:
- any need to adjourn the pre-trial review;
- any part of the claim that is unclear and needs to be further specified;
- any request or exchange of documents; and
- any agreed facts and issues in dispute.
- The Assessor will determine if the parties are ready for the matter to proceed to trial.
All parties must be in attendance at the pre-trial review, either in person or by their legal representative. The parties are required to complete a pre-trial review sheet, which provides the Court with a summary of the matter and a list of any evidence they intend to rely on. The Assessor will set a timetable for the parties to present their evidence, usually two weeks before the trial date. Serving your evidence in accordance with this timetable is essential as any evidence served late can be struck out.
At the Trial
Firstly, forget everything you have seen on television or in the movies. In the Small Claims Division, the Assessor will ‘read’ the affidavits or statements that have previously been filed by the parties. The parties then have a chance to raise any initial issues they may have (for example, seeking to have any inadmissible evidence struck out). The Assessor will then hear oral submissions from the parties, firstly by the plaintiff and then followed by the defendant. The plaintiff then has a chance to make submissions in reply.
At the end of the trial, the Assessor will deliver their oral judgment, which will be binding on the parties.
Right of Appeal
A parties’ right to appeal in the Small Claims Division is limited. A party can appeal a decision of the Small Claims Division to the District Court but only on the grounds of lack of jurisdiction or where there has been some denial of procedural fairness. If you are considering appealing a decision made in the Small Claims Division, you should seek professional legal advice.
Commencing or defending any Court proceedings requires careful consideration. If you wish to represent yourself, you should consider obtaining advice in respect of the strength of your claim or defence and any evidence that you may require. Representing yourself in Court can be intimidating and overwhelming and engaging an experienced disputes lawyer to represent you can be beneficial and is likely to increase your prospects of a successful outcome.
LegalVision’s litigation experts can provide you with whatever assistance you may need. Contact our office and a Client Care team member can provide you with a fixed fee quote.