How to prepare and present a case in the Small Claims Division

If you believe that someone owes you money, goods or services, or compensation for damage to property, you might be entitled to bring a claim in the Small Claims Division of the Local Court. The Small Claims Division provides a less formal forum, aimed at settling legal disputes quickly and fairly, and with minimum expense to the parties.

Overview of the Small Claims Division

State and Territory courts in Australia offer a small claims division in their local court or tribunal. Generally, a small claim is one for an amount of up to $20,000, depending on the State or Territory in which the legal action is conducted.

The types of matters heard by the Small Claims Division typically include disputes about outstanding debts, loan agreements, unpaid bills, car accident property damage, return of personal property, goods paid for and not delivered, or services paid for that were not provided.

The simplified nature of the Small Claims Division allows most parties to represent themselves in the action, without needing to obtain legal representation.

If you reach a decision that you will not retain a lawyer to represent you in court, a lawyer can still provide useful advice as to the merits of your claim and assist with the preparation of evidence.

Starting court proceedings

To commence a claim, you will need to complete the relevant court document (for example, a statement of claim) and file it with the court. Your local court website will have information regarding the correct form to use for your claim and may also have samples or guidance on how to complete the form.

When completing the statement of claim, it is important to correctly identify the party against whom you have a grievance (the ‘defendant’). This may require some investigation, particularly if the defendant is a business or company.

After the statement of claim has been filed, it needs to be served on the defendant. There are rules regarding the proper service of court proceedings, and this will depend on whether the defendant is an individual or company.

After filing the statement of claim, the next steps will depend on whether the defendant:

• files a defence
• files an acknowledgement
• makes arrangements with you to settle the matter
• does nothing

Documents and evidence

When preparing your matter for hearing you will be required to give the other party, before the hearing, all the documents which you intend to use to prove your claim. This might include any contracts you have entered, receipts, photographs, correspondence, email exchanges, and so on. If you do not give the other party notice of this information and enough time to consider it, then the court may not let you rely on it at the hearing.

Both parties to the proceedings will generally also be ordered to make written statements of their version of events and to provide those to the other party. The preparation of written statements is a crucial step.

Your written statements should include the following information:

• the full name and address of the witness providing the statement;
• details of the dispute and the circumstances of how the dispute arose;
• any documents relevant to the statement should be attached; and
• the statement should be signed and dated by the person who is making it.

You are entitled to serve as many witness statements as you consider necessary, as long as the evidence of the witness is relevant to the claim and the issues in dispute.

Hearing

The rules of evidence and more formal procedural rules generally do not apply to hearings conducted in the Small Claims Division. The hearing itself is conducted by a Magistrate or Assessor who will have read your witness statements. They will provide the parties with an opportunity to make submissions on their claim and evidence, and they may ask questions. In this way, the hearing is conducted with less formality than a typical court case.

At the conclusion of the hearing, the Magistrate or Assessor will make a decision and may make a limited order for costs.

Conclusion

If you intend to proceed with a claim in the Small Claims Division, it is important to take time to prepare your case, collate the documents you intend to rely on and give consideration as to the witness statements you intend to serve. There might be merit in obtaining legal advice to ensure that you are preparing and conducting your case in the most advantageous way and proceeding in the correct manner. This may help save you time and money down the track.

If you need more information or if you need assistance or advice on how to proceed please call us on 1300 149 140 or email info@lawbase.com.au.

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