Commencing a Civil Action
The first step in taking a matter to the Magistrates Court lies with the plaintiff taking out a originating claim, form 2.1, or statement of claim against the defendant. Depending on the nature of the claim the statement of claim form will either be:
- form 2.2 (debt or liquidated demand);
- form 2.3 (motor vehicle death or personal injury);
- form 2.4 (employment death or personal injury);
- form 2.5 (death or personal injury other than motor vehicle or employment-related); or
- form 2.6 (general).
The claim will contain contact details of all the parties to the action as well as details about the claim and the type of relief that is sought. A filing fee is payable to the Court upon issuing the claim. Court Fees for 2016-2017 sets out filing as well as other Magistrates Court fees.
A claim may be filed in the court up to six years after the cause of action arose (with some exceptions set out in the Limitation Act 1985) and must be served on the person or group within twelve months of the date of issue.
Part 2.2 of the Court Procedures Rules 2006 (volume 1) sets out in detail the Court's requirements concerning the commencement of civil proceedings.
Defending a claim
A defendant who has been served with a claim can either accept or dispute the claim made against them. If the defendant wishes to pursue the matter in Court and dispute the claim then he or she must complete a Notice of Intention to Respond Form (form 2.8) or a Defence and Counterclaim Form (form 2.9). Upon completion one copy is given to the Court and another provided to the plaintiff (the person making the claim).
For information on Court requirements on how to defend a claim against you, see part 2.3 of the Court Procedures Rules 2006 (volume 1), 'Notice of intention to respond and defence'.
If you require additional assistance on commencing or defending an action please contact the ACT Magistrates Court, Civil Section.
If the defendant does not deliver to the Court their completed Defence and Counterclaim Form within 28 days of the claim against them being served, then the plaintiff may request the Court to enter judgment by default. A judgment can be enforced for a period of 12 years from the date of judgment.
A decision reached by the Court must be followed by each of the parties involved in legal proceedings. The successful party can request the Court to enforce its decision if the other party does not comply with Court orders. Enforcement of a decision will only commence upon the Court receiving a request from the party. For more detailed material please refer to Guide to Enforcement of Judgments.
Once the Court has received a signed Certificate of Readiness for trial from the parties (form 2.38) a pre-hearing conference will usually be arranged. At the pre-hearing conference - attendance of which is compulsory - the Deputy Registrar will seek to resolve the issues between the parties in an informal setting. The pre-hearing conference also provides an opportunity for the parties to narrow and clarify the issues in dispute and to attend to any procedural matters. The discussions are confidential and the pre-hearing conference can be attended by the parties' or their legal representatives.
It is important that the parties attend the pre-hearing conference as the Deputy Registrar may dismiss the claim or strike out the defence if the plaintiff or defendant do not appear.
If the parties are unable to reach agreement concerning their conflict then the matter will go to Court for resolution.
When parties to the dispute are unable to resolve the matter between themselves, the issue will be put to the Court for determination. At the hearing the parties are able to present evidence supporting their position. The Court will decide the matter based on the "balance of probabilities", that is, whether the claim is more likely to be true than not.
For various reasons, parties to civil proceedings may seek to defer or postpone a hearing. When seeking an adjournment, it is first necessary to advise the other party of your intention to defer or postpone the hearing. If the other party agrees to the adjournment then you should notify the Court and obtain a new date for the hearing. If consent cannot be reached then the Court is to be informed before the hearing date so that parties may have an opportunity to argue for or against the adjournment before a Magistrate.
Litigation is an expensive undertaking and in many instances winning in Court may still mean that not all the legal expenses you incurred will be covered by the Court order for costs. Costs is a broad concept and include such matters as fees, charges, disbursements, expenses and remuneration for work done by a barrister or solicitor. When considering going to Court you must consider what costs will be involved and what costs will be recoverable if you win and what costs payable if you lose.
Costs may be broken down into:
- Solicitor-client costs - this refers to the amount a party must pay their own solicitor;
- Party and party costs - the losing litigant is expected to pay not only their own legal costs but the other party's expenses as well. The winning party's legal expenses will not usually be completely covered by the Court order. In arriving at the order for costs the Court will refer to its Scale of Costs. Party and party costs relate only to expenses arising out of employing legal counsel and any expenses such as fining fees and witnesses expenses and not to any inconvenience or money lost by the litigant; and
- Disbursements - Court fees and expenses incurred in preparation of the Court hearing.
Interest is payable on any unpaid amount of a judgment at the rate prescribed in Schedule 2, Interest Rates, of the Court Procedures Rules 2006 (volume 3). It is calculated on a daily basis.
The Court may also order that interest be paid on the judgment amount for the time from when the action arose and the day before judgment is given. The amount of interest is in the discretion of the Court.