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Getting a judgment without a trial

Getting a judgment without a trial

What is judgment?

The court's decision is called a judgment. Once a court judgment has been made the other party must follow it. Judgment debt is the amount awarded to be paid under a court order.

What is default judgment?

Default judgment is when judgment is given in your favour without a trial. If it is a debt case, the person who the judgment is made against (judgment debtor) owes the other party (judgment creditor) the amount of the judgment debt.

When can I ask the court for default judgment?

You can ask the court for judgment (called default judgment) if:

  • In a consumer/trader minor case claim if a party does not attend a listing conference (or pre-trial conference)
  • In other minor case claims if:
    • the defendant does not lodge and serve a response within 14 days of receiving a claim, or
    • the defendant does not lodge a statement of defence as required, or
    • a party does not attend a pre-trial conference.
  • In general procedure claims if:
    • the defendant has not:
      • lodged a response, or
      • lodged and served a statement of defence as required by the rules, or as ordered by a registrar at a pre-trial conference, or
    • a party
      • fails to go to a pre-trial conference, or
      • fails to comply with an order about lodging a listing conference memorandum, or
      • or, if they are not required to attend, their lawyer fails to go to a listing conference, or
      • does not follow the requirements of the Magistrates Court (Civil Proceedings) Act 2004 (WA) or the rules of court, or court orders or directions.

Get legal advice about these situations.


You can also ask for an order for any costs you have because the party did not comply.


The registrar should not give default judgment if the other party has not lodged a statement of defence because they have lodged an application to have the claim struck out and that application:

  • has not been dealt with
  • was successful, or
  • was dismissed and they have to lodge a statement of defence within 14 days of the dismissal.

Do time limits apply?

A registrar must not without approval give default judgment, if the defendant did not lodge a defence or lodge and serve a statement of defence, if one year or more has passed since the claim was served. If one year or more has passed since the claim was served the registrar must refer the matter to a magistrate for consideration. If this occurs you will need to file an affidavit stating the reasons why it took so long for you to apply for default judgment. The magistrate may then give approval for default judgment to be given.

It is best to apply as soon as possible because the defendant can still lodge their response up until you ask for default judgment.

How do I apply to get default judgment when no response or statement of defence is put in on time?

You will need to:

  • lodge an application for default judgment, and
  • prove the claim has been served. An affidavit of service or an enforcement officer's (eg a bailiff's) certificate is proof of service.

You can get the forms at any Magistrates Court of WA registry or on the Magistrates Court of WA website.

Will there be a hearing?

Although a trial will not be held the court may still have to hear evidence about the value of your claim before they make a judgment against the defendant. This hearing is called an assessment of damages.

Unless it is more than 12 months since the claim was served, in some circumstances the registrar may be able to give default judgment for a specified amount without hearing any evidence.

This can occur when the claim, or the relevant part of the claim:

  • is for a specified amount (see below)
  • is for an unspecified amount (see below) of $5,000 or less, or
  • is for an unspecified amount of more than $5,000 but less than $10,000 if the registrar can assess the amount from any supporting material lodged in relation to the claim.

Unless it is more than 12 months since the claim was served, the registrar may give default judgment for an unspecified amount of more than $5,000 but less than $10,000 even if the registrar cannot assess the amount from any supporting material lodged in relation to the claim. 

The registrar must then list an application for a hearing (assessment of damages) at which the amount is to be assessed by the court.

The registrar will set a date for the hearing and notify both you and the defendant at least 28 days before the hearing.
At the hearing you must provide proof of the damage. There are rules about how this must be done. Get legal advice.

What is a specified amount?

A specified (sometimes called "liquidated") amount is claimed when both parties should have known the amount involved when the claim arose.

For example, Paul lent David $2,000 but David refuses to pay the money back. Both Paul and David know the amount in dispute.

What is an unspecified amount?

An unspecified (sometimes called "unliquidated") amount is claimed when an exact amount is not known at the time the claim arose.

For example, a motor car accident where loss and damage have occurred but replacement and repair costs are not known at the time the accident occurred.

What if my claim is for over $10,000?

Unless it is more than 12 months since the claim was served, for unspecified amounts over $10,000, the registrar can, without the parties being present, give default judgment. The registrar must then list an application for hearing (assessment of damages hearing) when the claim is for an unspecified amount that:

  • is no more than $10,000 but the registrar is unable to assess the amount from any supporting material lodged in relation to the claim, or
  • is greater than $10,000.

The court will list the application for a hearing at which the court will assess the amount and notify both you and the defendant.

At the hearing you must provide proof of the value of your claim. There are rules about how this must be done. Get legal advice.

The magistrate will work out how much the defendant has to pay you and this is recorded as judgment.

Will the defendant come to the hearing?

The defendant is able to go to the hearing, but only to argue the amount you are claiming.

Can a party have a default judgment cancelled?

A party can ask the court to reconsider the default judgment. Time limits apply. This is called applying to have the judgment set aside.  Get legal advice before applying to do this.

If the court agrees to set aside the judgment the judgment creditor cannot take any further steps to get the debt paid back until it goes back to court. 

What do I do if I have default judgment and the defendant does not pay the judgment amount?

There are several steps you can take to enforce the judgment through the court and try to get the money.

If you have a default judgment but the defendant refuses to pay go to If they still do not pay - enforcement process.

Where can I get more information?

  • Legal Aid WA's Infoline on 1300 650 579 for information and referral.
  • Magistrates Court of WA website or a registry for more information and the forms you need.

Last reviewed: 13/09/2013

Last modified: 20/09/2017 2:00 PM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.