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Going to court for a debt - court process

Going to court for a debt - court process

I have a case at the Magistrates Court about a debt matter. Is the procedure the same in all cases?

No, the procedures are different depending on whether your case is:

  • a minor case claim
  • a general procedure claim
  • a consumer/trader minor case claim
  • a consumer/trader general procedure claim.

My case is listed for a pre-trial conference. Do I need to go? How do I prepare?

Unless the registrar or the court orders otherwise, you need to go to a pre-trial conference.

The court holds a pre-trial conference to give parties a chance to settle their dispute without a trial.

If you have not had legal advice about your case you should get it before a pre-trial conference. You should be clear whether you have a legal basis for your claim if you are the claimant or, if you are the defendant, a legal basis to your defence. The registrar cannot give you legal advice.

The outcomes of pre-trial conference can be different depending on whether it is a minor case or general procedure claim.

For information on pre-trial conferences in minor case and general procedure claims go to the Magistrates Court of WA website.

What if I don't go to the pre-trial conference?

If you don't go to the pre-trial conference, the registrar may give judgment (called default judgment) against you. The registrar can do the same thing if the other party does not go. For more information on default judgment go to Getting judgment without a trial.

I have a listing conference at the Magistrates Court about a debt owed to me. Do I need to go? How do I prepare for it?

In a general procedure claim you need to go unless you have a lawyer acting for you or the court has made other orders about your attendance. In a minor case claim you must attend a listing conference in person.

The purpose of the listing conference is to list the case for trial. You need to have thought about things such as:

  • how you will make out (sometimes called 'prove') your case if you are the claimant
  • how you will defend your case if you are the defendant
  • how many witnesses you will have
  • any special requirements, eg interpreters.

If you have not had legal advice about your case before a listing conference you should get it.

My case is listed for a mediation conference. Do I have to go?

The court can order parties to go to mediation to try to settle a dispute. You have to go unless the mediator approves otherwise.

What happens if the case does not settle at mediation?

If the case is not settled at mediation conference a registrar must list the case for a listing conference and let the parties know in writing.

My case is listed for a trial in the Magistrates Court soon. What do I need to do?

If you have not had legal advice about your case before you should get it. If your case (or your defence if you are the defendant), has no legal merit you could end up paying the other party's costs.

For how to get your witnesses and/or papers or things not in your possession to court see the heading below How do I get witnesses or records to court for my trial?

More information on how to prepare yourself for court and for what happens in a trial see the fact sheets on the Magistrates Court of WA  website.

What if I need my hearing put off to another date?

You will need to make an application to the court for an adjournment. An adjournment will only be considered in special circumstances. You would usually need to convince the court that the reason for the adjournment is something you can't control. It may help your application if you have told the other party as early as possible of your need to put the case off and they agree to putting it off.

How do I get witnesses or records to court for my trial?

To make sure your witnesses come to court and/or produce any papers, records or other things in their possession that you need to make out your case to court, you will need to make an application for a witness summons. You do this with a witness summons form to give oral evidence or witness summons to produce a record or thing(s). These forms can be obtained at any Magistrates Court registry or the Magistrates Court of WA website. You should get legal advice before summonsing witnesses to court especially as you may have to pay any costs involved. 

Do time limits apply?

Yes, time limits apply for personally serving the witness summons after the court issues it. The witness summons must be served on the witness no less than 14 days before the hearing date.

For more information on this go to the Magistrates Court of WA  fact sheet on summonsing a witness.

Can I settle my case before the trial?

Your case in the Magistrates Court can be settled at any time until judgment is given. The earlier settlement takes place, the less costs will be.

There are court rules about settlement offers. Get legal advice before settling your case.

Do I need to let the court know if the case settles?

Yes, if the case settles before trial you must advise the court in writing or may complete a consent orders form. This form can be obtained from any Magistrates Court registry or the Magistrates Court of WA website.

What if I missed the trial date?

Check with the court whether the court:

  • gave judgment against you, or
  • put the case off to a new date (and if costs were ordered against you for not going).

Get legal advice as soon as possible if judgment has been given against you.

Can I get the judgment set aside?

If you did not go to court for the trial and judgment (sometimes called default judgment) was given against you can apply to have the judgment set aside. This may be costly for you. Get legal advice before you make this application.

For more information on default judgment go to Getting judgment without a trial.

I have had the trial of my case. I am not happy with the decision. Can I appeal?

Yes. Appeals from the decisions of magistrates are made to the District Court.

Get legal advice before appealing to see:

  • if you have grounds for appeal
  • if there is any chance of success
  • what the costs might be.

Do time limits apply?

Yes. An application to appeal cannot be commenced more than 21 days after the date of judgment unless the District Court gives permission to do so. Get legal advice if you are outside the time limit.

What if I am not happy with a registrar's decision?

You can seek a review. The review is made to a magistrate. It must be started within 21 days of the registrar's decision.

I missed my court date and my claim has been dismissed. What can I do?

Get legal advice as soon as possible.

Your options are different depending on why you missed the court date, and if it was a decision of a registrar, or a magistrate confirming a registrar's decision, or a magistrate's own decision on your application. Time limits apply for some actions in this situation.

Where can I get more information?

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

 Last reviewed: 20/10/2016

Last modified: 24/10/2016 5:56 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.