Lawyers are only allowed in certain circumstances (if the other party is a lawyer, if all parties agree, or if the court gives permission because it believes a party would be unfairly disadvantaged without legal representation) [see Magistrates Court Act 1991 (SA) s 38(4)].
Once a defence has been filed, the court will post out to both parties the date, time and place of a directions hearing. A directions hearing is not the trial but is held to determine the position of each party and to encourage a resolution of the matter. You do not need to bring any witnesses to a directions hearing. Mediation or conciliation may be suggested by the court.
Examples of orders which may be made at a directions hearing are:
- an order for discovery, that is, that one or both of the parties must provide copies of the documents they will use in court to the other party
- an adjournment for settlement terms - if the parties appear to agree in general but not on the finer points, they will be given more time to finalise their agreement
- a consent order and payment arrangement filed - if the creditor admits to the debt and agrees to a payment arrangement
- a date for trial may be set if no agreement is reached.
It is important that you understand and comply with any orders made by the court at the directions hearing. If you are confused about what orders the court has made, you may get a copy of the court record for your hearing from the court registry. If you do not understand the order, you may ask at the registry.
The case may be referred to an independent mediator or the magistrate may try to get the parties to come to a settlement by agreement. Where a case is settled by mediation or conciliation, the terms of settlement are recorded as a judgment [see Magistrates Court Act 1991 (SA) s 27].
Where mediation does not result in a settlement by agreement, the mediator may certify that mediation was attempted. This may result in a reduction of 50% of the setting down for trial fee, which applies when the matter is listed for trial [Magistrates Court (Fees) Regulations 2004 (SA) reg 4(1a)].
Where the case is referred by the court for mediation, a cost of $500 for conducting the mediation may apply unless the court agrees to waive it. This cost is usually borne equally between the parties and may be recoverable by the successful party at the conclusion of the case [see Third Schedule: Cost Scales, Cost Scale 2: Minor Civil Actions, item 5 contained in the Magistrates Court (Civil) Rules 2013, available here. See also Magistrates Court Civil Practice Directions 2015, Practice Direction 11(6) available here].
Preparing for trial
Before the trial, if one party believes the other party has documents that will be needed he or she can make a written request for a list of the documents that relate to the claim discovery, and request to see them.
If the other party does not comply an application can be made to the court asking for an order that they do so. The court's permission is required to make the application but it can be asked for as part of the application for the order. The application is made by filling a Form 21 and by completing an affidavit explaining that a written request was made and that the other party did not comply with that request. (A copy of the letter sent to the other party should be attached to the affidavit). This application and the supporting affidavit is served on the other party by post and the court fixes a hearing date on the front of the application at which both parties must attend to decide the matter. If an application of this type has to be made it should be done promptly so that there is time for it to come before the court and be dealt with before the trial.
If one party believes someone else has documents which will be needed at the trial and that they will not voluntarily attend at the trial a summons to witness to produce documents can be issued and served on them before the trial. This form can be filled in at the court registry. It is up to the person who asks for the summons to be issued to serve it on the person and this has to be done a reasonable time before the hearing date.
A summons to witness can also be issued and served in the same way to make sure that someone whose evidence is required at the trial (e.g. such as a witness to an accident) will attend. The witness’s reasonable expenses to come to the court have to be paid to them.
If an interpreter is required this can be arranged by the court registry. This should be done as soon as possible after the court date has been fixed.
A setting down for trial fee applies to matters that are listed for trial. This fee varies depending on the value of the claim, and must be paid by the plaintiff within 14 days of the day on which the trial date is set [Magistrates Court (Fees) Regulations 2004 (SA) reg 4(1a)(a)]. The trial will not proceed on the day listed until the fee is paid [Magistrates Court (Fees) Regulations 2004 (SA) reg 4(1a)(c)]. If there is more than 1 plaintiff, the fee can be paid in equal portions by each of the plaintiffs.
To view the current Magistrates Court fees, visit the Courts website here.
Most minor civil claims do not make it to trial. If your matter does go to trial you should be prepared in the following ways:
- ensure your witnesses are available on the day
- ensure you have all relevant documents and evidence you intend to rely on (such as plans, photos, objects, etc)
- arrive at court 15 minutes early and check the time and location of your hearing on the court notice board.
You will be called into the courtroom when it is time to hear your matter. The witnesses will be asked to wait outside. You should stand whenever the magistrate enters or leaves the court and address him or her as "Sir" or "Madam", or "Your Honour".
The procedure for minor civil claims is less formal than in most other courts. The magistrate will conduct the hearing more like an inquiry, and will ask questions of the parties, ask to see documents, and ask questions of any witnesses. Speak slowly and clearly as the magistrate and their clerk will need to write down details. If you are confused about the procedure you may ask the magistrate questions.
Usually a number of other minor claims will be listed to be heard on the same day and the cases therefore have to be dealt with quickly. Although a magistrate can receive written statements from witnesses he is not obliged to do so and it is therefore important to make sure that any important witnesses attend in person.
The procedure followed at the trial is up to the magistrate. Usually the plaintiff will present their case and call their witnesses first. All of the witnesses are able to be questioned by both the magistrate and the defendant. The defendant can then present their case and call their witnesses who can also be questioned by the magistrate and the plaintiff. After the magistrate has heard the evidence, the magistrate usually makes a decision straight away.
If the court is not satisfied on the balance of probabilities (i.e. that it is more likely than not that the facts occurred as the plaintiff has said), then the plaintiff has not proved their case and will not win.
Lawyers are only allowed in certain circumstances (if the other party is a lawyer, if all parties agree, or if the court gives permission because it believes a party would be unfairly disadvantaged without legal representation).
Once the trial has finished, the magistrate will make their decision. Whoever receives judgment in their favour has “won” the case. In debt matters, judgment in your favour may be for the entire debt or for part of it. If you seeking some action from the other party, the court will decide exactly what the other party must do. A judgment in your favour means that the court recognises your claim. If your claim was for money, judgment means that you are owed the debt and that it must be paid.
If you are successful you can ask the court for an order that the defendant pay your witness fees or other out of pocket expenses. The magistrate has the final decision about whether to order the defendant to pay and, if so, how much. A schedule of costs that may be ordered is available at the Courts Authority website at http://www.courts.sa.gov.au.
The court can conduct an investigation summons hearing at the end of the trial to question the defendant about their ability to pay and, if they are unable to pay the full amount at once, can order installment payments be made.
However, a judgment is no guarantee that money will be paid and it is up to you to enforce judgment. Even with judgment, you cannot force someone to pay if they do not have the money.
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.