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Going to court

Directions hearing

If the respondent files a defence , the court will send 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 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 respondent 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 of your hearing from the Magistrates Court Registry. If you do not understand the order, you may ask at the Registry.

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.

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 2019 (SA) reg 4(2) and Schedule 1]. The trial will not proceed on the day listed until the fee is paid [Magistrates Court (Fees) Regulations 2019 (SA) reg 4(2)(c)]. 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

If your matter does make it to trial you should be prepared in the following ways:

  • ensure your witnesses are available on the day of the trial
  • ensure you have all relevant documents
  • arrive at court in plenty of time 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 any 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.

Lawyers are only allowed in certain circumstances (e.g. if the other party is a lawyer, or if all parties agree or the court is of the opinion that a party would be unfairly disadvantaged without a lawyer and gives permission).

[See Magistrates Court Act 1991 (SA) s 38(4) and Uniform Civil Rules 2020 rule 25.1(4)]

Going to court  :  Last Revised: Tue May 19th 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.