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Starting a general procedure claim

 

This information covers steps you may wish to take in the Magistrates Court if someone owes you a debt and out of court attempts to negotiate for the debt to be paid have failed. Taking a case to court should be a last resort. For information on the first steps in collecting a debt, including negotiating with the other party, go to Collecting a debt- first steps.

If you are starting a claim in the Magistrates Court you are called the claimant.

The person you bring a claim against is called the defendant.

Do I need legal advice before starting my case?

You should always seek legal advice before going to court. Any legal action can be costly, time consuming and stressful.

Some of the things you may need advice on include:

  • Negotiating an agreement with the other person
  • If an offer of settlement has been made, whether you should accept it
  • Whether there is a legal basis to your claim
  • The "proof" or "evidence" you need to support your case
  • Whether you are within the time limit to start a claim
  • The chances of your claim being successful
  • The costs involved in going to court
  • Which procedure in the Magistrates Court you should follow to make your claim
  • Which court location is best to lodge your claim.

Do time limits apply?

Most legal proceedings must start within a certain period of time.

In some circumstances special considerations apply to actions concerning children and people with mental impairment.

In some cases:

  • the court may extend time limits
  • the time limit cannot be extended and you will be unable to have the court hear your case.

Seek legal advice as soon as possible about:

  • what these time limits are, and
  • what to do if you are outside a time limit.

Which court do I go to?

If you are owed a debt up to $75,000 you can go to the Magistrates Court of WA. There are two ways a claim can be made in the Magistrates Court. You may choose to have your claim heard as a minor case or as a general procedure claim.

You can choose to have your claim for a debt or damages heard a a minor case if it is for an amount up to $10,000. For more information about minor case claims see Starting a minor case claim.

General procedure claims in the Magistrates Court:

  • Deal with disputes about amounts between $10,000 and $75,000.
  • Do not involve disputes concerning the meaning of wills, titles to land, defamation, or personal injuries from a motor car accident.
  • Are not ones that the Building Commissioner or the State Administrative Tribunal can deal with under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). As it is complicated which cases can be dealt with you should get legal advice before starting any court action about a building dispute.

A claim of less than $10,000 can still be started as a general procedure claim, but, in most cases, if you have a lawyer, you will have to pay your own legal costs even if you win.

The procedure in a general procedure case is more formal than in a minor case. Special rules called the "rules of evidence" apply at the trial.

What if I am owed more than $75,000?

Your case will have to go to the District Court if you are owed more than $75,000 and less than $750,000. Cases in this court are not covered here. Get legal advice.

Will I have to pay court fees?

Generally, you have to pay court fees in a general procedure claim in the Magistrates Court when:

  • lodging a claim
  • an enforcement officer (eg a bailiff or Sheriff) serves court papers for you
  • listing the matter for a pre-trial conference
  • listing the matter for trial
  • seeking to have judgment enforced
  • applying for default judgment
  • applying for summary judgment
  • making other applications to the court.

For more information about current fees go to the Magistrates Court of WA website.

Are there any exceptions about paying court fees?

The registrar of the Magistrates Court has the power to decide if and how a person has to pay court fees if:

  • the person is disadvantaged and unable to pay, or
  • the registrar considers it to be in the interests of justice to do so.

The registrar can decide to:

  • Waive the fees. This means the registrar has decided you don't have to pay.
  • Reduce the fees.
  • Defer the fees. This means the registrar will collect the fees at a later stage.

There are certain fees the registrar must waive if you have a:

  • health care card
  • health benefit card
  • pensioner concession card
  • Commonwealth seniors health card
  • any other Social Security or Veterans' Affairs card that certifies entitlement to Commonwealth health concessions

or if you are:

  • a prisoner or person lawfully detained in a public institution
  • person under 18
  • getting Austudy or a youth training allowance
  • getting Abstudy
  • a person who has a grant of aid.

You should tell the person at the court counter if any of the above applies to you.

Will I have to pay legal costs in a general procedure claim?

The magistrate will usually order the loser to pay the winner's court fees and legal costs - including lawyer's fees if lawyers represent one or both parties. Not all of your legal costs may be covered by this order. Usually if the amount you are claiming is under $10,000 each person must pay their own lawyers fees.

You can settle your disputes in the Magistrates Court at any stage until judgment is given.

The earlier settlement takes place, the less the costs will be.

If your case has no legal merit you should settle the matter as soon as possible even if it means paying all or some of the other parties' costs to the date of settlement.

Get legal advice about your likely costs.

How do I start a general procedure claim?

You can start a general procedure claim in the Magistrates Court by lodging a claim form (Form 3; Form 7 for a consumer/trader general procedure claim) and paying the fee and then serving it.

Go to a Magistrates Court of WA registry or the Magistrates Court of WA website to get the form you need. The form can be completed online

This form will have to be lodged in person unless you pay electronically.

What do I put on the claim form?

You must give the following information when lodging the claim:

  • The identity of the defendant. It is essential that you correctly identify the defendant on the claim (be careful with businesses you may need the name of the owner). Get legal advice if you are not sure who the correct defendant is.
  • Full names and addresses of all parties including all the partner's names if making a claim against a partnership and the Australian Company Number (ACN) if making a claim against a company.
  • A summary of what is claimed.

When starting the claim, you can claim, and add to the amount sought, costs for things such as:

  • service fees
  • costs to do with transporting witnesses
  • arranging quotes, etc.

You do not have to specify the amount of costs. Write on the claim that you are claiming costs.

You must sign each copy of the claim. Photocopies and carbon copies of signatures are not acceptable.

How can I find out business or corporation names and addresses?

You can use the Australian Securities and Investments Commission website to find out valid names and addresses for business and companies.

What if I can't find the current address of a person I want to make a claim against?

Listed below are some of the ways you may be able to find out the address of the other party:

 

1.  Write letters

You could write to:

  • the other party's last known address asking them to contact you
  • if known to you, any relatives or close friends of the other party to see if they can tell you how to contact the other party
  • if known to you, the other party's last employer, any club or organisation (eg union) which they belonged to, any superannuation fund, bank, building society, credit union they dealt with or any other person or organisation the other party had regular contact with to see if they have a forwarding address.

Keep copies of any letters sent or replies received as proof for the court that you have undertaken the search. Write down the date on which you posted them. You may wish to send your letters by registered mail.

How do I send a registered letter?

You can send your letters by registered post at any Australia Post Office. This means that your letter must be specifically signed for by the person named in the address on the letter. Australia Post charges a fee for this service.

 

2.  Search the telephone directory

Search both the local and interstate telephone directories to see if you can locate the other party or their relatives. Most Australia Post Offices have copies of Australian telephone directories that you can search. To find a post office near you call Australia Post on 13 13 18. There is no cost for carrying out the search. You may find it easier to search the telephone directories on the internet by visiting White Pages Online. You can conduct business, residential and government searches online using first names, family names and business names. Alternatively there are several other phone number searches you can carry out on the internet.

3.  Search the internet and online resources

Internet specific searches for finding people and information include searches to find people by email, address, phone number, their occupation, educational institutions, background through social blogs, through personals, missing persons, and public records. There are numerous free searches available on the internet, such as Google and Yahoo. There are also free searches specifically to locate people through Facebook, MySpace and PeopleSearch.

 

4.  Advertise in the newspaper

You could place an advertisement in the public notices section of the newspaper to try to locate the other party or anyone who knows their whereabouts. Placing an advertisement in a newspaper can be costly and this may not be an affordable option. You could make enquiries about the costs of advertising in the newspaper.

If you do advertise in the newspaper you may want to arrange for the advertisement to be placed in a weekday edition of the newspaper, as this will be cheaper than a publication in a weekend edition. Make sure that you keep a copy of your advertisement and any replies you receive.

 

Useful search tips

Keep a file

You should keep all of your documents and information in one file. The court may require you to tell them where, when and how you have tried to find the other party. Having all your information in one place will help you to do this. Remember to always write down details such as the time and the names of people you speak to, dates and the address of places you attend. You should keep copies of any letters, replies and/or documents you have used in your search and write down the details of any important conversations you have had with people during your search.

 

Use different names

Sometimes people use different family names so it is useful to search for people using their family name before they were married, if any or any previous names they may have used. If you are doing special searches on Facebook, MySpace and so on you may even wish to search nicknames.

 

Internet based phonebook searches

If the family name you are searching for is unusual a white pages phonebook search may be very useful. Once you have several possible phone numbers you can call up the numbers and ask if they know the person you are looking for. In these cases there is a chance that they are a relative of the person you are trying to locate.

 

Internet based name searches

You can find out information about someone by entering their name into an internet search. You can try the commonly used searches such as Google or Yahoo. The internet has many different search engines that you can use. Sometimes you may need to conduct multiple searches using a person's name. Most search engines have a "search tips" section that can assist you in your search.

It is possible that the person you are trying to find may have their name on a website that is personal, education or work related. If you know where the person worked or what clubs/organisations they were associated with, you could try a few different searches, for example:

           "joe bloggs Perth"
           "joe bloggs Perth woodworking association"
           "joe bloggs Perth builders association"

Can I claim interest?

You can claim interest from the date the claim arose. Write on the claim that you are claiming interest.

For more information about claiming interest go to the Magistrates Court of WA website.

Who can I make a claim against?

You can make claims against the following people or organisations:

  • individuals (get legal advice about making a claim against a child or person with a legal disability because special rules apply)
  • partnerships
  • companies
  • certain corporations such as hospital boards, local governments, etc
  • incorporated associations such as social clubs, churches, etc.

Can I make a claim against more than one person?

In some circumstances you may name more than one defendant on the claim. This is called joining defendants.

You can join defendants when you lodge your claim or at a later date.

You should always get legal advice before joining defendants.

Which Magistrates Court should I start my claim in?

You can lodge your claim at the registry at most Western Australian Magistrates Courts.

When you can, it is best to lodge your claim in the Magistrates Court nearest to either:

  • the home or business address of the defendant which existed not more than six months before the claim was lodged, or
  • the place where the claim arose either wholly or in part.

Contact the court you select to check if you can lodge it there.

Can the other party ask for a change of court?

Any party may ask the court for a change of court location. If the court decides that it would be more convenient, or fair, to the parties to change the location, the court may shift the case to the court requested.

You cannot appeal a decision by a magistrate on an application to change the court.

What do I do with the claim after it is lodged?

Once you have lodged the claim at the court you will need to "serve" or give it to the defendant. For more information about serving claim go to a Serving the claim.

Where can I get more information?

 Last reviewed: 11/09/2013

Last Modified: 13/02/2014

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.