Please note that new Uniform Civil Rules 2020 for legal proceedings in the Magistrates, District and Supreme Courts of South Australia commence on 18 May 2020. The information in this chapter has been updated to reflect the new rules.
A Minor Civil Action is an application about:
See Magistrates Court Act 1991 (SA) s 3(1) and (2).
Other proceedings declared by statute to be minor statutory proceedings include:
Note that neighbourhood disputes and minor statutory proceedings may involve amounts over $12 000 and still be heard as minor civil actions. If a neighbourhood dispute or a minor statutory proceeding involves a monetary claim for more than $12 000, or a claim for relief in the nature of an order to carry out work where the value of the work is more than $12 000, a party may choose to exclude the case from the rules governing minor civil actions and have it treated as a case in the general division [Magistrates Court Act 1991 (SA) s 3(4)].
In a minor civil action, a lawyer normally cannot represent a party at the trial (although they can be involved in all of the preliminary steps leading up to the trial) and the procedures at trial are not as formal as claims in the General Division. If you want a lawyer to represent you, the other party must agree, or the Court may allow you to have a lawyer if it thinks that you will be disadvantaged without representation. See Magistrates Court Act 1991 (SA) s 38.
Some examples of minor civil actions include:
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.
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:
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?
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.
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.
Fees in relation to a minor civil action need to be paid when:
*Fees are as of 1 July 2020.
In addition to the above, if the court orders mediation as part of the proceedings, a cost of $500 may be incurred unless the court agrees for the cost to be waived. This cost will usually be borne equally between the parties, and may be recoverable by the successful party at the conclusion of the matter. See Schedule Six Part 4: Minor Civil Cost Scale contained in the Uniform Civil Rules 2020.
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 (Fees) Regulations 2019 (SA) reg 4(3)].
To view current fees that may apply, visit: The Courts Website .
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 ($23.10* if filed using the online court portal; $55.50* 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 2020.
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.
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].
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:
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.
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).
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 $156.00 as at 1 July 2020. It is added to the amount of which the applicant is claiming and if the claim is successful will be added to what the respondent has to pay but must in the first instance be paid to the Court registry by the applicant.
The Court gives each new claim a number ('the action number') and stamps each copy of the claim with the Court seal to show that it has been issued. The court needs to know the action number in order to provide any information which the parties ask for 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)].
To view the current fees for minor civil actions, visit the Courts Website here.
A Multilingual Notice (Form 31) must also be served with the claim [r 63.3].
There are three choices as to how the claim is served [r 63.4(3)]:
The court will charge an additional fee for the Sheriff's office to personally serve the claim. The same fee can be claimed if a licensed process server serves the claim. A process server may charge the applicant more than the fee allowed by the court in which case the difference will have to be paid by the applicant but cannot be able to be recovered from the respondent. This is added to the amount of the claim but as with the issue fee must in the first instance be paid by the applicant.
If the claim is posted to the respondent but is returned to the court as unclaimed the applicant will have to either find a new address at which to try to serve the respondent and notify the court or try to serve it personally. If the applicant or a licensed process server serves the claim personally on the respondent then they must complete an Affidavit of Proof of Service (Form 42) and file it with the court registry. This is called a 'proof of service'. Unless this is done the court will not know if the claim has been served on the respondent and will not be able to assist the applicant to take any further steps to proceed with the claim.
A claim must be served within six months of it being issued but this can 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].
Responses to Pre-action Steps
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:
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
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:
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.
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].
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.
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)].
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.
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 2019 (SA) reg 4(3)].
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.
Preparing for trial
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.
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).
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; rule 124(1); Uniform Civil Rules 2020 r 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.
The first process in the enforcement of a judgment for a debt is an investigation hearing [Enforcement of Judgments Act 1991 (SA) s 5(2)]. If the debtor is present at court when judgment is given, the judgment creditor can ask the magistrate to conduct an investigation hearing into the respondent's financial position. Otherwise, to instigate an investigation hearing the judgment creditor will need to fill out and file a Application to Enforce Judgment - Form 141 for which there is a filing fee [Uniform Civil Rules 2020 r 203.4(1)]. If the debtor owns real estate, then a Warrant for Sale (see below) can be asked for on the original application for the investigation hearing (unless it is for a judgment debt from a minor civil action) [ r 203.10]. If the judgment debt is from a minor civil action (less than $12,000) against an individual and has not arisen from the judgment debtor carrying on a business, further enforcement process can only be issued in the following circumstances:
If a Warrant of Sale is sought, the applicant must file a copy of the Certificate of Title in relation to the land [r 203.10 (2)]. Unless the court orders otherwise, a Warrant of Sale may only be issued if [r 203.2(3)]:
In relation to a Warrant of Sale of land, unless the court orders otherwise, no warrant of sale of land may be issued against an individual in respect of a judgment debt of less than $12 000 unless:
A summons requiring the judgment debtor to attend the Investigation Hearing [Form 143] must be served personally on the judgment debtor as soon as practicable before the date set for the hearing [r 203.4(3)]. Before the hearing, the debtor will fill out a form detailing their financial situation (Form 145 - Questionnaire). This will include how much they spend on rent, bills, food and other expenditure. During the hearing a judgment creditor will have a chance to question the debtor on this information.
The registrar in charge of the hearing will then usually make an order for the debt to be paid in instalments. The court will only order the debtor to pay instalment amounts they can afford. If the court decides the debtor has no means to pay the debt, the creditor may ask for an adjournment (usually for a year) so that the court can reassess the debtor’s circumstances at a later date.
However, after an investigation summons has been issued a judgment debtor may consent to an order for payment being made in order to see the debt paid without further court involvement. The applicant also needs to consent to the order for payment proposed by the judgment debtor. If the parties agree on payment terms a Form 142 –Consent Order for Payment may be filed in the court, setting out the agreed payment.
Is the Debtor a Company?
If the judgment debtor is a company, it can be summonsed to appear at Court on an investigation hearing. Usually a director of the company will attend and be required to produce evidence of the company's ability to pay the amount owing. If the company is unable to pay the debt, it may be appropriate to issue a statutory demand under the Corporations Act 2001 (Cth). Legal advice should be sought about this process.
If the debtor fails to comply with an order made at the investigation hearing, the judgment creditor can apply for an examination hearing by filling out an Application to Enforce Judgment [Form 141] [Enforcement of Judgments Act 1991 (SA) s 5(5) and Uniform Civil Rules 2020 r 203.8(1)]. There is a filing fee.
A summons requiring the judgment debtor to attend the Examination Hearing [Form 146] will be issued by the court on the judgment debtor as soon as practicable before the date set for the hearing [r 203.8(4)]. At this hearing the debtor will be asked to explain why he or she has not complied with the order for payment from the investigation hearing. If the debtor's circumstances have changed then the instalments to be paid under the order may be modified. If there is no valid reason for not complying with the order (and where instalments are payable, the judgment debtor is at least two instalments in arrears) then an order for imprisonment may be made for contempt of court [Enforcement of Judgments Act 1991 (SA) s 5(7)]. This does not affect the obligation to pay the debt. However, a judgment debtor must be released from prison if payment of the judgment debt or all arrears of instalments are made [s 5(8)].
A judgment debtor may apply for a stay (to stop) of an order for imprisonment [s 17]. If the court considers there is proper reason for granting the stay, it may do so on terms it considers appropriate.
There are other orders that may facilitate the payment of the debt. These can be made at any time after the investigation hearing. Other orders will not be made if there is a payment agreement in place from the investigation or examination hearings.
A warrant for sale can be issued in relation to either the judgment debtor's real property (land) or personal property (such as non-essential household items) [see Enforcement of Judgments Act 1991 (SA) s 7].
To apply for a warrant for sale, a judgment creditor must fill in and file an Application to Enforce Judgment [Form 141] [Uniform Civil Rules 2020 r 203.10(1)]. A registrar must not issue a warrant where the judgment debtor is subject to an order for payment, unless satisfied by affidavit evidence [Form 12] that judgment debtor has failed to comply with the order, or if at least two instalment payments are in arrears [r 203.2(3)].
Very few warrants for the sale of real property will proceed to sale as the judgment debtor will usually pay the outstanding amount before the property goes to auction.
A judgment creditor applying for a warrant for the sale of real property must first do a search at the Land Titles Office to discover whether the debtor owns any land (there is a small fee for this service). If a warrant of sale is sought, the judgment creditor must file a copy of the Certificate of Title for the land with the Application to Enforce Judgment [r 203.10 (2)]. The judgment creditor must also give a written undertaking to pay for any costs involved in the auction of the property. These costs are recoverable from the debtor upon sale of the land.
A warrant for the sale of personal property authorises a Sherriff’s Officer to enter the judgment debtor’s address and seize property of sufficient value to cover the debt. Certain items such as cars under a certain value, ordinary clothing and necessary household goods cannot be seized. Items which are under finance or jointly owned will not be seized. If the debtor is bankrupt, their property cannot be taken. Only about a third of warrants for the sale for personal property are successful in recovering any money at all. Therefore, a judgment creditor should consider whether it is worth applying for a warrant of sale. It is best to find out whether the debtor owns more than one car or any valuable assets. If not, it may not be worth paying the fee to issue a warrant for sale.
Unless the court orders otherwise, no warrant of sale of land may be issued against an individual in respect of a judgment debt of less than $12 000 unless:
A charging order allows the court to charge the real property (land) of a judgment debtor, assuming that the debtor owns any real property [Enforcement of Judgments Act 1991 (SA) s 8]. This means that the debt will be registered on the title of real estate of the person or on the assets of a company. If the property is sold then it will be subject to the charge and the judgment creditor has priority over the owner for the proceeds of the sale. However, if there is insufficient equity in the property after any prior mortgage is paid out, the judgment creditor may still not get paid.
To apply for a charging order a search must be conducted at the Land Titles Office to identify any property owned by the judgment debtor. The judgment creditor will then need to make a Form 77 interlocutory application [Uniform Civil Rules 2020 r 203.14]. In the space provided the judgment creditor will need to specify that it is an application for a “charging order over (name of property) for the judgment debt of $...”. The application needs to be accompanied by an affidavit [Form 12] which annexes a copy of the title search of the property owned by the judgment debtor and explains why the judgment creditor wants a charging order. The interlocutory Application and supporting affidavit must be accompanied by a draft order using Form 150 – Charging Order [r 203.14 (1)]. The supporting affidavit must [r 203.14 (2)]:
The interlocutory application, affidavit and draft order must then be served on the judgment debtor as soon as practicable before the date set for hearing [r 203.14(3)]. If a person (other than the judgment debtor) has or may have an interest in the property the court may order that the person be joined as an interested party to the proceeding or that notice of the application for charging order be given to that person [r 203.15(3)].
If the judgment debtor fails to appear at the hearing within 15 minutes of the scheduled hearing time, the Court may proceed with the hearing and make an order in the absence of the judgment debtor.
Once a judgment creditor obtains the charging order, they will need to arrange for it to be registered at the Lands Titles Office. The Land Services SA website has relevant forms and guidance notes available.
A judgment creditor may make a Form 77 interlocutory application and supporting affidavit [Form 12] regarding the outstanding debt and the third parties owing money to, or holding money on behalf of the judgment debtor [Uniform Civil Rules 2020 r 203.11]. The interlocutory application and affidavit must be accompanied by a Form 148 interim garnishee order. However, money cannot be garnished from a judgment debtor's salary or wages without consent [s 6(2)]. Therefore a garnishee order is usually for the debtor's convenience.
These orders are not common because if money was available from a third party the debt would usually have been paid at an earlier stage.
If a garnishee order is made in the absence of the judgment debtor or the third party, the judgment creditor must serve them with notice of the adjourned hearing date and interlocutory application as soon as practicable before the adjourned hearing date [r 203.11(4)]. The judgment creditor must also serve the garnishee order on the third party without delay.
TEMPORARY UPDATE: Bankruptcy and COVID-19
On 25 March 2020, the minimum amount for a bankruptcy notice increased to $20,000 (not $5,000) and the time for a debtor to respond to a bankruptcy notice increased to 6 months (not 21 days).
If the debt is for more than $5000 a judgment creditor may start bankruptcy proceedings against the debtor [Bankruptcy Act 1966 (Cth) s 44]. If a person is declared bankrupt then all of their property (with exceptions similar to those for a warrant of sale) comes under the control of a trustee. A creditor may then lodge proof of the debt (the judgment) with the trustee to receive a share of the profits from the sale of the debtor’s property.
Before commencing bankruptcy proceedings, a judgment creditor should consider whether the judgment debtor owns enough property to make declaring them bankrupt worthwhile. If they own real estate (check at the Lands Titles Office) or if they have a position that they will lose if declared bankrupt, then the threat of bankruptcy may force payment of the debt. The cost of bankrupting someone should also be considered.
The first step in bankruptcy proceedings is usually to serve the person with a bankruptcy notice [s 41]. A bankruptcy notice is a form requiring the debtor to pay the debt within 21 days. This form needs to be filed with Australian Financial Security Authority (AFSA) (formerly ITSA). The costs are listed on AFSA's Fees and charges page.
Once 21 days have elapsed from the service of the bankruptcy notice on the debtor, a creditor’s petition must be lodged in the Federal Circuit Court. The costs vary depending on whether the application is being lodged by a natural person, a publicly listed company or a corporation. See Federal Court and Federal Circuit Court Regulations 2012 (Cth) Schedule 1 for further details. Some people on low incomes can apply for the fees to be waived.
Sending someone bankrupt is a complex process. A judgment creditor should seek independent legal advice before commencing bankruptcy proceedings. Further information on sending someone bankrupt is available from AFSA website. A booklet on creditor’s petitions is available at the Federal Court Registry, Level 5, Roma Mitchell Commonwealth Law Courts Building, 3 Angas Street, Adelaide.
Winding up a company is the equivalent of declaring a natural person bankrupt. It starts with an application to the Supreme Court and higher costs apply. A creditor should seek legal advice if you wish to wind up a company.
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 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  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.