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Deciding to take legal action

If you decide to take legal action there are several decisions you will need to make before you can proceed. Depending on your situation it may be that legal action is not necessarily an option. You need to make an assessment of the pros and cons of pursuing the claim in the courts before you proceed.

There are several factors to consider before taking legal action:

Proof

Can you prove your claim? Do you have relevant documentation such as an invoice, text message, letter or email, or witnesses who will back up your version of events?

Legal Issues

If there are issues of law involved, or if there is some doubt about how a court may view your claim, it may be advisable to obtain legal advice before proceeding.

Time

A matter in the Minor Civil Claims Court can be settled at any time. However, it will be some months before a trial occurs if the other party does not agree to your claim. Enforcing the judgment will take some time after this and, if the other party has been ordered to pay you money, the debt may not be paid in full straight away but in instalments.

You would need to be available in court at the time set for your directions hearing and trial.

Costs

Fees in relation to a minor civil action need to be paid when:

  • you give notice of intention to sue ($21.60 * if you use the court's online portal; $52 * if filed through the Court Registry; no fee if you send a letter of demand);
  • you file the claim ($146 *); and
  • your matter is set down for trial ($204 * for claims $4000 and less; $613 * for claims $4001 - $12000); and
  • you file a counterclaim (where appropriate) ($146 *); and
  • if you need to enforce the judgment (the amount varies according to the method of enforcement used – ring the Courts call centre on 8204 2444) .

*Fees are as of 1 July 2018.

In addition to the above, if the court orders mediation as part of the proceedings, a cost of $500 may be incurred unless the court agrees for the cost to be waived. This cost will usually be borne equally between the parties, and may be recoverable by the successful party at the conclusion of the matter. See Third Schedule: Cost Scales, Cost Scale 2: Minor Civil Actions, item 5 contained in the Magistrates Court (Civil) Rules 2013 (SA). See also Magistrates Court Civil Practice Directions (SA), Practice Direction 11(6).

All these costs are usually recoverable from the opposing party if you win.

The fee for setting a matter down for trial made be reduced by 50% if the parties have attempted mediation, and the mediator certifies the reduction [Magistrates Court (Fees) Regulations 2004 (SA) reg 4(1a)].

To view current fees that may apply, visit: The Courts Website .

Other Factors

  • Do you wish to preserve the relationship with the opposing party(s) or others?
  • Will mediation or further negotiation be more likely to produce a desirable result? (see below)

Writing the matter off

If negotiation and mediation are not successful or possible, and if any of the above factors mean that you do not wish to take legal action, then you can choose not to take action. That is, you can 'write the claim off'. In some cases, a business debt that is written off may be tax deductible.

Deciding to take legal action  :  Last Revised: Fri Jul 6th 2018
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.