Please note that new Uniform Civil Court Rules 2020 for legal proceedings in the Magistrates, District and Supreme Courts of South Australia are scheduled to commence on 18 May 2020. The information in this chapter has been updated to reflect the new rules and applies to matters commenced after 18 May 2020.
The Uniform Civil Rules 2020 (including schedules) came into effect on 18 May 2020. These rules apply to civil proceedings in the Magistrates Court, District Court and Supreme Court.
Civil claims can cover a wide range of matters. The most common types of civil claims are claims for debts (such as money owing on loans or under contracts) or claims for damages (such as for money claimed for repairing a car or for personal injuries following a road accident).
Some types of civil claims, such as residential tenancies, unfair dismissals, bankruptcy, copyright and planning and development, are dealt with by special courts or tribunals . This chapter does not deal with the procedure in these special courts and tribunals.
In this chapter, unless otherwise stated, the procedure for making a claim is that which applies in the Magistrates Court Civil (Minor Claims) Division. For additional information about minor civil claims, see DEBT and ACCIDENTS AND INJURIES, Motor vehicle accidents.
In which court is a civil claim started?
The amount of money or damages being claimed usually determines the Court in which a claim should be started. The monetary limits for the types of claims which courts can deal with are [Magistrates Court Act 1991 ss 3 and 8]:
Claims can also be made in the Supreme Court, but there are cost implications if an applicant makes an application and the amount of the judgment awarded by the Supreme Court falls below a certain amount. The amount depends on the type of claim (for defamation claims, $50 000 in damages must be awarded for the applicant to be eligible to make a claim for legal costs; and for other monetary claims, costs of the claim are not payable to a successful applicant if the damages awarded is less than $120 000 [see r 194.5]). The court also has discretion to order a cost penalty against a party if the amount awarded is less than an offer of settlement filed with the court and not accepted[see r 194.6(e) and r 132.10].
The procedures that are followed in the District Court and the Supreme Court are very nearly the same as each other. Whilst there are many similarities with the procedural steps in all of the Courts, generally the procedures have been simplified in the minor civil division of the Magistrates Court.
A child can sue for damages but the court action must be brought by an eligible person, as litigation guardian for the child. A litigation guardian may initiate an action for a child if a guardian certificate is filed immediately after filing the application [Uniform Civil Rules 2020 rule 23.8(2). The statement of claim or supporting affidavit brought by a litigation guardian must disclose the child’s date of birth [r 23.8 (3)].
A claim can be lodged at any time before the child turns 21 years [Limitation of Actions Act 1936 (SA) s 45]. Where a child suffers personal injury, notice of an intended action must be given within 6 years of the relevant date of injury by, or on behalf of the child, to the person/s alleged to be liable in damages [s 45A].
Any compensation awarded to a child is held in trust, usually by the Public Trustee, until a child turns 18 years. However, a court can order funds to be released earlier if it is in the best interests of the child (for example, if the child needs the money to pay for medical or education expenses).
If a child is sued, the action may only be instituted against them by naming both the child and a litigation guardian for the child as a respondent or interested party. The applicant must also file a guardian certificate at the same time. [See Uniform Civil Rules 2020 rule 23.6 and 23.9]. No further steps may be taken in the proceeding until a litigation guardian is appointed.
A child is automatically deemed to be under a legal incapacity, until they are 18 years of age.
The following persons are eligible to be a litigation guardian for a child:
However, a person who has, or would have, an adverse interest in the proceeding is not eligible to be a litigation guardian for the child [r 23.7(2)(b)].
Where a case in which either the applicant or the respondent is a child is settled out of court, the settlement must be approved by the court [Uniform Civil Rules 2020 rule 134.2].
Usually, this means that the written opinion of counsel must be given to the court explaining that the settlement is for the benefit of the child, having regard to all of the evidence.
Victims of crime
A child, like any other victim of crime, can apply for compensation for injury caused by a criminal offence. See Victims of Crime.