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Pre-action steps - Giving notice of intention to sue

Please note that there are additional pre-action steps that apply to lodging a general claim (over $12 000) in the Magistrates Court and legal advice should be sought.

Before commencing a minor civil action in court, the applicant must give the respondent a written notice of intention to commence legal proceedings (this does not apply in some specific circumstances or where there is a statutory time limit for the proceedings of not more than 3 months) [r 332.3(3)(f)]. This notice gives the other party 21 days in which to try and resolve the matter or seek mediation.

If no notice of intention to sue is given, the filing fee (the amount the applicant pays the Court to lodge the claim) may not be recoverable, even if the action is eventually successful [r 332.3(4)]..

Notice of intention to sue can be given by EITHER filling out and serving a Final Notice (Form P1) OR sending written notice of intention to commence legal action (i.e. a Letter of Demand).

Final Notice

A Final Notice (Form P1) gives notice to the respondent of the nature of your claim and that you intend to start an action against them (see below for information specific to personal injury claims). This form can be obtained from the Magistrates Court Registry or over the Internet. There is a cost for the form ($22.70* if filed using the online court portal; $54.50* if filed through the Court Registry).

An applicant who is successful in a claim is entitled to recover the filing fee for the final notice from the respondent [r 332.2(2)(c)].

*Fees are as of 1 July 2019.

If the applicant is willing to accept payment in instalments, the applicant can send an Enforceable Payment Agreement (Form P2) with the Final Notice. For more information, see Enforceable Payment Agreements.

After serving the Final Notice on the respondent, the applicant must wait a minimum 21 days for a response before taking any further action.

If the applicant uses Form P1 to give notice of the claim, the mediation service provided by the Magistrates Court may be used to resolve the matter, if both parties agree to attend. Information about the option to use mediation is given to the respondent on the Form P1. Parties can also get more information about the Mediation Service from the Court on 8204 2444.

If the parties want to try to resolve the claim informally, they may ask the Mediation Unit to approach the other side to see if they are willing to participate. Remember that mediation is not compulsory and there is no way to force someone to participate if they do not want to.

Service of the Final Notice

The applicant must post the form to the respondent - the court will not do it. There are three ways an applicant can serve a Final Notice of Claim or letter of demand [r 61.3]:

  • Personal service in accordance with rule 42.1
  • Express post via Australia Post to an address reasonably believed to be the address where the person to be served regularly works, carries on business or is present at

Keep a copy of the document and make a record of the date it was sent. A posted document is assumed to have been received by the person it is addressed to.

  • As an attachment in PDF or Word format to an email address reasonably believed to be actively used by the person to be served

Written notice of intention to commence action

A written notice of the applicant's intention to commence legal action puts the respondent on notice that the applicant is seeking payment of a debt, and that the applicant may seek further action. The written notice provides the respondent with an opportunity to accept the applicant's claim, or seek further negotiations with the applicant to resolve the matter. A written notice can be used instead of a Final Notice (Form P1) and must include [r 332.2]:

  • the date the notice was written
  • the full name and address for service of the applicant
  • the amount owed, or action required by the respondent to resolve the applicant's claim
  • why the debt is owed (for example, there was a contract, or services were provided) or why the action is required
  • copies of agreements or invoices when applicable
  • copies of any expert's reports relevant to the claim
  • that the respondent has 21 days in which to respond to the notice, after which time the applicant may take further action.

The applicant may wish to include information about the respondent's options, for example going to mediation. Court mediation is available in the Magistrates Court. Depending on the type of matter this may be at not cost or there may be a fee. However, you may use free community mediation services to resolve the matter.

Below is a sample written notice of intention to commence action for a debt owed (for other types of disputes, please seek legal advice):

Dear [put the name of the other person here],

I enclose a copy of my invoice [provide details of invoice number, date, amount and what it is for] which remains unpaid.

I also enclose [provide any additional supporting documentation i.e. expert reports, valuations etc.] which are relevant to the unpaid debt.

Please arrange payment of the above amount [provide details of your preferred payment method i.e. bank account details, payment by bank cheque etc. ] within 21 days of the date of this written notice. If I do not receive payment I intend to commence legal proceedings to recover the debt and my legal costs. If legal proceedings are commenced against you, you should be aware the Court may order you to pay the costs of legal proceedings.

My address for service is [provide your full name and address details].

Yours sincerely

*************************************************************************************************************************************************

Service of Written Notice

This written notice does not have to be filed in the court, and can be served on the respondent by sending by express post, by email, or by personal service. The applicant should keep a copy of the written notice. See 'Service of the Final Notice' above

Personal Injury Matters

Note that in an action for damages for personal injuries notice of the injury must be given to the respondent within 6 months of the injury, or within one month of becoming aware that the injury has caused material loss or damage [r 61.6]. An early notice of personal injury claim must be provided under rule 332.1. Extra requirements also apply in relation to the Final Notice [r 61.6], including that it sets out:

  • the date of birth and occupation of the applicant;
  • the names and addresses of each respondent potentially liable;
  • identify when, where and how the applicant’s injury was sustained;
  • the conduct of the respondent/s alleged to be negligent;
  • whether the applicant has returned to work, and if not, when that is likely;
  • whether the applicant is continuing to receive treatment;
  • identifying any medical records relating to the applicant that are required or sought from the respondent;
  • any other records held by other providers that may be relevant;

Confidentiality

Unless the parties to a minor civil action agree, the content of any communications between the parties for the purpose of pre-action steps are to be kept confidential [r 61.4] and cannot be disclosed to the court. In some circumstances the court may direct that parties provide copies of the communications to the court for the limited purpose of assessing whether a costs order or other procedural order may be granted [r 61.4 (2)].

Pre-action steps - Giving notice of intention to sue  :  Last Revised: Thu May 21st 2020
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.