Before deciding to take legal action, consider whether mediation may be appropriate. Mediation is a process where both parties agree to sit down in the same room with a mediator to resolve their dispute. The mediator is a neutral third party who helps the parties discuss the problem. However, it is up to the parties themselves to arrive at a solution. Mediation can be seen as advantageous compared to going to trial because:

Mediation is not always advisable, for example if you feel the other party has much more power than you in the situation, or if you feel threatened by the other party.

There are a number of private mediators who specialise in resolving civil disputes. If you wish to engage your own mediator (with the agreement of the other party), you will need to meet the cost of the services, as well as arrange a suitable venue.

However there are also free services available. Uniting Communities Mediation Services provides free mediation to eligible people, to attempt to resolve disputes.

In addition, the Magistrates Court may order that the parties attend mediation at any stage of proceedings [Uniform Civil Rules 2020 (SA) r 331.1 and 131.3]. Where mediation is ordered by the Court, the parties are expected to participate appropriately in the mediation process and negotiate in good faith with a view to settling the dispute. In turn, the mediator is expected to provide a report to the Court about whether the dispute was resolved or narrowed and whether the parties did, in fact, participate appropriately. Where a dispute is resolved at mediation, the mediator is expected to assist the parties to record their agreement.

Where mediation is ordered by the Court, the costs will usually be shared equally between the parties and must be paid into Court at least 7 days prior to the mediation [r 131.3(10)]. From 29 August 2022, the Courts Administration Authority website is required to list the fees charged by external mediators for the purpose of Court ordered mediation [r 131.3(9)].

For debts, an Enforceable Payment Agreement (Form P2) can be used (see 'Enforceable Payment Agreements') [r 62.2].

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 installments.

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:

*Fees are as at 1 July 2023.

In addition to the above, if the court orders mediation as part of the proceedings, a cost may be incurred. However, not all court ordered mediation will incur a fee [Uniform Civil Rules 2020 (SA) r 131.3].

If a cost is incurred to go to mediation, this cost will usually be borne equally between the parties, and may be recoverable by the successful party at the conclusion of the matter.

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

The fee for setting a matter down for trial may be reduced by 50% if the parties have attempted mediation, and the mediator certifies the reduction [Magistrates Court Regulations 2021 (SA) reg 4(2)].

To view current fees that may apply, visit the Courts website.

Other Factors

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.

The first step in making a claim is to find out exactly who you should sue. If you do not put the correct person’s name or business name on the forms, you may have difficulty obtaining judgment or a judgment made in your favour may be set aside. If you do not find out the correct and current address, the other party may not receive your forms and you may have to start the whole process again.

Similarly, you need to identify yourself correctly on the claim form. If the claim is on behalf of your business or partnership, use this name on the claim form.

An action can be brought against a person, a business (sole trader or partnership) or a company.

To find the address of a private person:

The electoral roll is available for public inspection at any Australian Electoral Commission office. This is provided for through the Commonwealth Electoral Act 1918 (Cth), but does not include the right to copy or record the roll or part of the roll by electronic means [see Commonwealth Electoral Act 1918 (Cth) s 90A]. A person may also apply to be a silent elector, in which case their details may not be listed in the roll [s 104]. The Australian Electoral Commission will also protect personal information on the roll from misuse, but some uses are allowed under the Australian Privacy Principles and the Privacy Act 1988 (Cth). Information may be disclosed for the purpose of a confidential dispute resolution process or to establish, exercise or defend a legal or equitable claim [see Privacy Act 1988 (Cth) s 16A]. For more information, see Privacy and Access to Information.

For a business (sole trader or partnership), to find the business owner's name and the correct business name and address, you can search the Business Name Register on the ASIC Connect website .

For a company, you must use the company's name and registered address on any documentation, not the name and address of individuals running the company. To find the correct company name, you can search for it using the company ABN or ACN (these numbers should be on any documentation you have from the company) on the ASIC Connect website .

To get the registered address of a company, you can:

Further information can be obtained from ASIC on 1300 300 630.

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 - Form P1

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 ($25.25 if filed using the online court portal; $60.50 if filed through the Court Registry (as at 1 July 2023)).

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)].

If the applicant is willing to accept payment in installments, 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 pre-action written notice [r 61.3]:

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.

Pre-Action Notice

As an alternative to the Final Notice - Form P1, an applicant may issue a Pre-Action Notice to the respondent. A Pre-Action Notice is 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 the following information [r 332.2]:

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 Pre-Action Notice 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 and you are unsuccessful in defending the claim, 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 Pre-Action Notice

The Pre-Action 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:

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)].

If after the 21 day period following giving notice of the intended claim there has been either no response or an unsatisfactory response the claim itself can be started.

Beginning formal legal action against the debtor respondent

If the other party does not accept the claim, or try to negotiate after 21 days of serving the Form P1 or letter of demand, then the next step is to begin formal legal action. If negotiations are commenced and are unsuccessful, then legal action can be started without any further waiting period.

Fill out a Claim (Form 1), which you can get at the online portal CourtSA Civil or the court website.

A claim must be accompanied by a statement of claim, which may either be [r 333.1(3) and r 63.1 (5)]:

A Statement of Claim uploaded with a Claim is Form 1S. If an applicant wishes to amend its claim after it has been filed, a minor civil claim can only be amended once without having to seek permission (leave) from the court [r 334.4]. The amended claim must be filed in the court marked “Revision 1” [r 33.2] and once filed, the applicant must serve the amended claim on the respondent. Minor civil claims under the Building Work Contractors Act 1995 (SA), Retail and Commercial Leases Act 1995 (SA) and the Second-hand Vehicle Dealers Act 1995 (SA) must be made using the specific Forms 1A, 1B and 1C respectively.

Other minor statutory proceedings and neighbourhood disputes must be made by filing an Originating Application (Form 2) supported by an Affidavit (Form 12 - the original must be retained if the Affidavit is filed on the CourtSA portal [Uniform Civil Rules 2020 (SA) r 31.10]).

Minor civil claims under the Fences Act 1975 (SA) must be made using Form 2A Originating Application.

Information required on claim form

The person who is making the claim is called the applicant. The person against whom the claim is being made is called the respondent. The names and addresses of both of the parties must be filled in and at the bottom of the form under the heading 'Statement of Claim' the applicant must provide details of what the claim is about. These particulars should include the date on which the matter took place and the basis on which the claim is made (this is called the 'cause of action'). For a Minor Civil Action, the applicant should complete Option A of the Statement of Claim section. The applicant should try to be as clear and brief as possible.

For all other claim types (including general civil claims over $12 000), applicants should complete Option B of the Statement of Claim section.

Where the respondent is a company

If the respondent is a company the address which should be put on the form is the address of the registered office. This can be obtained by searching the records at the Australian Securities and Investments Commission (www.asic.gov.au). If the respondent is using a business name the claim should be issued against the proprietors of the business at the time the claim arose. Their names can be obtained by searching the Business Name Registration records at ASIC Connect.

What documents to provide

If the claim is for property damage, such as the cost of repairs to a car following a car accident, a copy of the repair quote or other documents to prove the amount of the claim should be attached.

If relevant invoices and quotes are not attached, then default judgment in the event that the respondent does not respond may be subject to a further process and hearing for the assessment of damages.

The Court charges a fee to issue the claim. This fee is $175 as at 1 July 2024. To view a list of the current fees for minor civil actions, visit the Courts website.

The filing fee must usually be paid upfront. If the claim succeeds, it will be added to the amount the respondent must pay. To learn how to request a fee reduction or waiver, read our Court and tribunal fee waiver guide (PDF download, 657KB).

The Court gives each new claim an action number and stamps each copy of the claim with the Court seal to show that it has been issued. The Court will need the action number to provide information parties may request about the progress of the claim.

If the claim is filed online through CourtSA, it is conditionally accepted by the Court if a claim number is allocated to the proceeding, a file number is allocated to the document and the Court’s seal is applied to the document by the electronic system [Uniform Civil Rules 2020 (SA) r 32.1]. The Registrar may reject a document lodged for filing if [r 32.3]:

If a document is filed electronically and conditionally accepted but then rejected by the Registrar, it is treated as not having been filed [r 32.3(2)].

The applicant must generally serve (give) a sealed copy of the claim documents on each respondent and interested party (if any) as soon as practicable [Uniform Civil Rules 2020 (SA) rule 63.3(2)].

A Multilingual Notice (Form 31) must also be served with the claim [rule 63.3(1)(b)].

The claim may be served by personal service, email service or post service [rule 63.4(3)].

Personal service [rule 42.1]

When court documents are served in person, this is called personal service. Personal service may be carried out by the applicant, another adult, the Court Sheriff or a private process server. The Court Sheriff and private process servers will charge a fee which may or may not be recoverable from the respondent.

Personal service on an individual means that either:

or

Email service [rule 42.2]

Court documents may be served by email if:

*Documents should only be served by email if the applicant knows that the respondent uses that email account. This means that the respondent has consented to being served documents by email, or the respondent has previously communicated with the applicant about the dispute using the email account.

If documents are sent to an email that is not known to be used by the respondent, then the Court may not accept that the documents have been properly served.

The documents are regarded as having been served when the applicant's email account records the email as having been sent, or when the respondent replies or actively acknowledges receipt of the email.

Post service [rule 42.3]

Court documents served by post must be sent by express post to a physical address or post office box if the respondent:

The applicant should retain proof that that they posted the documents by taking a copy of the express post envelope before sending it and keeping the Article Lodgement Receipt showing when the envelope was received over the counter at the post office.

The applicant must also demonstrate proof of delivery of the documents by using a printout of Australia Post’s online tracking facility showing when the envelope was delivered to the address shown on the envelope. The applicant must state in the Affidavit of Proof of Service (Form 42) that the tracking number shown in the online tracking printout matches the envelope sent to the recipient.

Electronic service [rule 42.4]

Court documents may be served electronically on a data storage device (such as a USB drive) or through download from an internet address accessed from a link. The applicant must have either the consent of the respondent or a court order to serve documents electronically.

The data storage device or link must be served by personal service [rule 42.1], post service [rule 42.3] or email service [rule 42.2]. Those rules must also be complied with.

Proof of service

The person who serves court documents must complete an Affidavit of Proof of Service (Form 42) which the applicant must file with the court registry. Unless this is done the Court will not know that the claim has been served on the respondent and the applicant's claim will not proceed.

A claim must be served within 6 months of it being issued. This may be extended with the Court's permission if the Court is satisfied that there are good reasons why it was not served within that period [r 64.1].

When the applicant issues a Final Notice (P1) or a Letter of Demand, the respondent has 21 days to respond before the applicant may proceed with lodging a formal claim in the court.

If the respondent receives a Letter of Demand giving notice of the applicant’s intention to commence legal action, the respondent must serve a written response on the applicant within 21 days [r 332.3 (1)]. This written response to the applicant should include:

However, if the respondent receives a Final Notice (Form P1) of an intended action from the applicant, then the respondent is not required to serve a response in writing on the applicant [r 332.3(3)]

Responses to Claim

When the respondent receives the claim they have 28 days to decide what to do. During that time the applicant cannot do anything to proceed with the claim. The three choices the respondent has are:

No response

If the respondent does not respond within 28 days, the applicant can apply for default judgment to be signed in their favour without the need for a court hearing. To do this, the applicant must complete a Form 76B - Application to Registrar-Sign Judgment and file it with the court with proof that a Form 1 or 1S Claim has been served on the debtor, and that the applicant has waited at least 28 days for a response.

This judgment can be set aside if the respondent can show they did not receive the claim. This is why it is important to find out the respondent's correct address, and, if there is any doubt about the address, to have a Sheriff's Officer serve the claim or for the applicant to serve it personally on the respondent . For more information see Serving the claim on the respondent.

An applicant seeking default judgment should provide any relevant quotes or invoices as well as a written schedule of costs that the applicant will be seeking to recover at the time the request for default judgment is filed [r 142.3] If the applicant has not attached a relevant quote or invoices to prove the amount claimed or has made a claim for an unspecified amount, then the applicant should request default judgment for an amount to be assessed [r 142.5] A further hearing date will be set by the Court and the parties will receive a Notice of Directions Hearing – Assessment of Damages or Other Relief [r 142.9]. If the applicant is seeking default judgment for a non-monetary claim, the applicant can seek judgment with the relief to be assessed [r 142.6].

Admission of the claim

If the respondent admits the claim and agrees to pay or act, the parties should to negotiate a specific final date for payment or action. If the respondent does not pay or act by the agreed date, follow the process set out above for having judgement signed against the respondent, and then apply to enforce the judgment by issuing an investigation hearing using Form 141 – Application to Enforce Judgment.

The respondent can admit liability for all or part of a debt owed. If the respondent only admits part of the debt owed, and this is not satisfactory, the applicant can continue with the action. However, the applicant may have to pay the respondent's costs if the court awards no more than what the respondent paid into the Court.

A respondent can admit liability for a debt by filing an Enforceable Payment Agreement (Form P2) document with the Court.

Denial of liability - Defence

Counterclaim / Cross Claim

Response to claim (Originating Application)

Some minor statutory proceedings (such as neighbourhood disputes and minor civil claims under the Fences Act 1975 (SA)) are made by filing an Originating Application supported by an Affidavit.

When a respondent receives a claim by way of Originating Application, the respondent has 14 days to file a response from the time the application is served [Uniform Civil Rules 2020 r 335.1].

The respondent must file and serve a Form 56 - Response to the originating application. The Respondent may also file and serve an Affidavit (Form 12), if they wish to rely on any facts in addition to the information set out in the response form. The respondent must serve the Affidavit as soon as practicable on the other party.

Response by Applicant - Reply Affidavit

After a respondent has lodged a Response to the Originating Application, the applicant may wish to add further evidence or rely on facts in reply to the respondent’s filed response. The applicant may file a Reply Affidavit [Form 12] within 14 days after receiving the Respondent’s response [r 335.3 (1)]. The applicant must serve the reply Affidavit as soon as practicable on each party to the action [r 335.3].

The original of any Affidavit filed must be retained if the Affidavit is filed on the CourtSA portal [r 31.10].

If a defence is not filed within 28 days of service of the claim the applicant can go back to the court registry and ask to sign judgment. This is done by filling in a Form 76B. By doing this the claim will become a judgment of the court and can be enforced in the same way as a judgment given by a magistrate after a trial.

It is possible for a respondent to subsequently apply to the court to set aside a judgment obtained in this way, but before the court will do so it would have to be convinced that the respondent had a valid reason for not filing the defence within the 28 days and that they also have good grounds for defending the claim. See Setting aside default judgment .

The amount of money that the court may sign default judgment for in the applicants favour will be determined by the type of outcome (or damages) that the applicant is seeking:

Liquidated Claim

A liquidated claim means a claim for a specific sum of money, or for an amount of money that can be calculated in accordance with a formula that the parties had already agreed to (i.e. as set out in a contract) or set by statute.

If the applicant is seeking to enter default judgment for a liquidated claim, the applicant may request that judgment be entered for the amount shown on the applicants statement of claim, or show the calculation in detail in a document filed in the court at the same time as the request for judgment (Form 76B) is filed [r 142.3(2)]. The applicant can also request that the default judgment include a fixed amount for the applicants costs of pursuing the claim.

Monetary Claim

A monetary claim means a claim in which the only remedy, or outcome sought by the applicant, is payment of money. This includes a claim for compensation or damages.

If the applicant is seeking to enter default judgment for a monetary claim (but not solely a liquidated claim), the applicant may request that default judgment be entered for an amount to be assessed [r 142.5].

Non-Monetary Claim

A non-monetary claim means a claim which is not solely a claim for money, and where the applicant is seeking an order from the court that the respondent be made to do something, or to stop doing something injunction, comply with an obligation under a contractual agreement, or return property.

If the applicant is seeking to enter default judgment for a non-monetary claim, the applicant can request that default judgement be entered with the relief to be assessed [r 142.6]

Property Loss Claim

A property loss claim is a claim where the applicant is claiming damages for the loss or damage of personal property (not land). If the applicant is seeking to enter default judgment for a property loss claim, the applicant may request judgment for the amount of the claim shown or calculated in accordance with the Statement of Claim, which may include a fixed amount for costs (according to the costs scale) [r 142.8].

If the applicant has not attached a relevant quote or invoices to prove the amount claimed or has made a claim for an unspecified amount, then judgment will be signed for damages to be assessed. A further hearing date will be set to determine the amount of damages that may be awarded to the applicant. The purpose of the hearing is not for the respondent to further contest liability for the applicants claim, but to determine the damages or other relief (if any) that will be awarded to the applicant [r 142.9 (3)]. An applicant can only request judgment for a property loss claim under rule 142.4 if the applicant proves by affidavit (Form 12) the value of the property at the relevant time (i.e. valuation report, RedBook value of vehicle), evidence of costs of repairs or damage (i.e. invoice or repair quote, loss adjustment report etc.) and evidence of any consequential costs (i.e. towing, storage, alternate accommodation costs), The applicant will need to file the same with the court as well as proof of service of the claim on the respondent.

If default judgment is entered against a respondent in relation to a minor civil action, it is possible for a respondent to subsequently apply to the court to set aside the judgment. The respondent may apply to have the judgment set aside by filing an Interlocutory Application (Form 77) and Supporting Affidavit (Form 12), setting out the reasons why judgment should be set aside.

Before the court decides if the default judgment should be set aside, the respondent must convince the court that the respondent had a valid reason for not filing the defence within the 28 days and that they also have good grounds for defending the claim. There are a number of grounds on which a respondent may apply to have judgment set aside, including:

When making the application to set aside the default judgment, the respondent must seek the courts permission (leave) to file a Defence (and/or Cross-Claim). The respondent may wish to include a copy of their draft Defence (and/or Cross-Claim) as supporting documents to the Interlocutory Application.

If the respondent wishes to admit the applicant's claim, then an application to set aside default judgment may not be appropriate. Legal advice should be sought before making an application to set aside default judgment.

Representation

Lawyers are only allowed to appear in minor civil actions 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)].

Directions Hearing

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:

It is important that both parties understand and comply with any orders made by the court at the directions hearing. If either party is confused about what orders the court has made, they may get a copy of the court record for the hearing from the court registry. If either party does not understand the order, they may ask at the registry.

Mediation/Conciliation

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].

The fee for setting a matter down for trial may be reduced by 50% if the parties have attempted mediation, and the mediator certifies the reduction [Magistrates Court Regulations 2021 (SA) reg 4(2)].

In addition to the above, if the court orders mediation as part of the proceedings, a cost may be incurred. However, not all court ordered mediation will incur a fee [Uniform Civil Rules 2020 (SA) r 131.3].

If a cost is incurred to go to mediation, this cost will usually be borne equally between the parties, and may be recoverable by the successful party at the conclusion of the matter.

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

Preparing for trial

Discovery

Each party to a minor civil action must file and serve a list of all relevant documents within 14 days of the filing of a defence (or if a cross claim is filed, within 14 days of the time for filing a defence to the cross claim expires [r 336.1) The List of Documents should be filed using Form 73A – List of Documents.

Before the trial, if one party believes the other party has further 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. A party providing discovery must, at the request of the other party, provide a copy of the documents [r 336.1 (3)].Unless the court orders otherwise, a request for a copy of discovered documents must be complied with before the first directions hearing[r 336.1 (4). If a party comes into possession of a discoverable document after the first directions hearing, that party must notify the other party of the existence and location of the document [r 336.1 (5)].

If the other party does not comply with the requirement for discovery, the court may order the party to complete discovery. 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 filing an interlocutory application (Form 77) and by completing an affidavit (Form 12) 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 [see also Chapter 9 Part 2 of the Uniform Civil Rules 2020 (SA)].

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 Regulations 2021 (SA) reg 4(1]. The trial will not proceed on the day listed until the fee is paid [Magistrates Court Regulations 2021 (SA) reg 4(1)]. If there is more than one applicant, the fee can be paid in equal portions by each of the applicants.

To view the current Magistrates Court fees, visit the Courts website here.

Trial

Most minor civil claims do not make it to trial. If the matter does go to trial the parties should be prepared in the following ways:

The parties will be called into the courtroom when it is time to hear the matter. The witnesses will be asked to wait outside. Both parties 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 either party is confused about the procedure they 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 applicant will present their case and call their witnesses first. All of the witnesses are able to be questioned by both the magistrate and the respondent. The respondent can then present their case and call their witnesses who can also be questioned by the magistrate and the applicant. 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 applicant has said), then the applicant 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).

Judgment

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 the applicant's favour may be for the entire debt or for part of it. If one party is seeking some action from the other party, the court will decide exactly what the other party must do. A judgment in favour of one party means that the court recognises that party's claim. If the claim was for money, judgment means that the successful party is owed the debt and that it must be paid.

The successful party in the matter can ask the court for an order that the other party pay any witness fees or other out of pocket expenses. The magistrate has the final decision about whether to order costs be paid, and if so, how much. A schedule of costs that may be ordered is available at the Courts Administration Authority website.

The court can conduct an investigation summons hearing at the end of the trial to question the respondent about their ability to pay and, if they are unable to pay the full amount at once, can order instalment payments be made.

However, a judgment is no guarantee that money will be paid and it is up to the successful party to enforce judgment. Even with judgment, a successful party cannot force someone to pay if they do not have the money.

Many respondents will pay once judgment has been given but it may be necessary to remind the judgment debtor to pay the debt. If there is doubt about whether the debtor will pay, the judgment creditor can commence enforcement proceedings immediately after judgment. A party who seeks to enforce judgment must serve a copy of the judgment on the person against whom the judgment is enforceable [r 201.2].

From the date of judgment, interest is payable on the debt until it is paid. The rate is set at 6% per annum (simple interest) [Magistrates Court Act 1991 s 35; Uniform Civil Rules 2020 rules 124(1) and 185.1(1)].

Under section 34 of the Limitation of Actions Act 1936 (SA), a judgment creditor has 15 years from the date of the judgment to enforce the debt. However, rule 201.5 of the Uniform Civil Rules 2020 provides that if a judgment creditor wishes to enforce a debt after 6 years, the creditor must obtain the leave or permission of the Court to proceed.

The Enforcement of Judgments Act 1991 (SA) sets out how the Courts may enforce judgments.

Different processes may apply when enforcing a judgment from a tribunal, such as SACAT or the South Australian Employment Tribunal. See Enforcing SACAT Tenancy Orders [r 245.10].

An order for recovery of property

If an order for recovery or delivery up of possession of property has been made by the court, and the court order has not been complied with, you may ask the court to issue a warrant of possession. A warrant of possession authorises the sheriff to take possession of the property and deliver it to you. An application for recovery or delivery up of personal property must be made by filing an Application to Enforce a Judgment (Form 141) [r 204.1].

If the warrant relates to land, the sheriff may eject any person who is not lawfully entitled to be on the land. If the warrant relates to personal property, the sheriff may enter land and take possession of the property, using appropriate means and such force as may be reasonably necessary in the circumstances [see Enforcement of Judgments Act 1991 (SA) s 11].

An order to do something, or to stop doing something

If the court has ordered that a person must do or not do something (excluding orders in relation to payment of money) and the court order has not been complied with, you may ask the court to issue a warrant to have the person arrested and brought before the court to be dealt with for contempt of the court. In order to bring the person to court, the sheriff may enter or, where necessary, break into land where the sheriff reasonably suspects the person may be present, using such force as is reasonably necessary for the purpose [see Enforcement of Judgments Act 1991 (SA) s 12].

An order in relation to documents

If an order of the court requires a person to execute or sign a document and this is not done, you may ask the court to order the person to execute or sign the document. Alternatively, the court may authorise an officer of the court to execute or sign the document on behalf of the person. A document executed or signed by an officer of the court has the same effect as if it had been done by the person [see Enforcement of Judgements Act 1991 (SA) s 13].

An application by a party to enforce that the judgment debtor execute or endorse a document, or that an officer of the Court be authorised to do so on the judgment debtor’s behalf must be made by filing an Interlocutory Application (Form 77) and supporting affidavit (Form 12) accompanied by a draft order (Form 79) [r 204.4].

If a party is dissatisfied with a decision of a Magistrate in a minor civil action, they can apply to the District Court for a review of the decision by a Judge [Magistrates Court Act 1991 (SA) s38(6)]. The application for review must be lodged within 21 days of the Magistrate's decision [Uniform Civil Rules 2020 r 214.1].

A notice of review of a minor civil action is filed using a Form 182A –Notice of Review Minor Civil Action, with a Form 182S – Review Grounds attached [r 214.2]. For more information about the court forms visit the court website.

The court Registrar will provide a notice (Form 191 – Notice to Party – Minor Civil Action Review) setting out the details of the review hearing.

A party to the review proceedings may file a Written Case (Form 192 – Written Case on Minor Civil Review) to set out any other evidence or submissions that they wish to put before the Judge in the review hearing [Uniform Civil Rules 2020 r 217.12 (3)].This form is optional. If a party wishes to file a Written Case they must do so at least 2 business days before the review hearing. Parties are required to attend the review hearing [r 217.12 (3)].

The Uniform Civil Rules 2020 give detailed information about the presentation of a case for review.

Unless the Court agrees, lawyers are not permitted to represent the parties. However, lawyers can help with the preparation of the written case, which may be useful to help identify and narrow down issues.

In McLeod v Mitchell [2014] SADC 129, the Court described the “unique nature” of a review, and the requirement of the Court to act “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms”.

Upon review, the District Court may affirm the original decision, or rescind it and substitute its own decision. If the review arises from a default judgment or summary judgment, the matter can be remitted back to the Magistrates Court for hearing or further hearing [see Magistrates Court Act 1991 (SA) s 38(7)(d)].

Ordinarily there is no further right of appeal from the decision of the District Court; the decision is final. In very limited circumstances, a person may ask for a judicial review of the District Court decision, but legal advice should be obtained first.