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Starting a minor case claim

Starting a minor case claim

This information outlines steps you may wish to take if someone owes you a debt and out of court attempts to negotiate for the debt to be repaid have failed.

It covers starting a minor case claim in the Magistrates Court.

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

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

Taking a case to court should be a last resort. For information on the first steps in collecting a debt including negotiation, go to Collecting a debt - first steps.

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 a legal basis to your claim
  • The "proof" or "evidence" you need to support your claim
  • 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
  • Where to lodge your claim.

Disputes in the Magistrates Court can be settled 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.

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?

The Magistrates Court can deal with debts up to $75,000.

The District Court deals with specified claims up to $750,000. Cases in this court are not covered here.

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 you may make a general procedure claim.

What type of cases are minor case claims?

You can choose to have your claim heard as a minor case if:

  • it is for an amount of up to $10,000
  • it is a residential tenancy dispute involving an amount up to $10,000
  • it does not involve a dispute concerning the meaning of a will, titles to land, defamation, or personal injuries from a motor vehicle accident, and
  • it is a claim that the Building Commissioner or the State Administrative Tribunal (SAT) cannot 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.

The procedure for residential tenancy disputes is not covered here.

The aim of the minor cases procedure is to help the parties to come to an agreement generally without lawyers.

If you and the defendant cannot or will not agree, the court must hear the matter at a trial and make a decision. This is only done as a last resort.

The process in minor case claims is informal and proceedings are not as complex as in those for general procedure claims. You are not expected to follow the "rules of evidence".

All proceedings are to be held in private unless the court otherwise orders.

You and the defendant cannot have lawyers unless all parties and the magistrate agree.

Can I start my case under general procedure?

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

Go here for more information on Starting a general procedure claim.

What court fees will I have to pay?

Generally, you pay court fees in a minor case in the Magistrates Court when:

  • lodging a claim
  • when an enforcement officer (eg a bailiff or Sheriff) serves court papers for you
  • seeking to have judgment enforced.

Go here for information on Magistrates Court of WA fees.

Are there any exceptions about paying full fees?

You can apply to a registrar or the court for a direction that you are an "eligible individual". Ask at the court registry for the form you need. If this direction is made you will pay a set reduced fee.

You are an "eligible individual" if:

  • you have one or more of the following cards:
    • a health care card 
    • a health benefit card
    • a pensioner concession card
    • a Commonwealth seniors health card
    • a card issued by Centrelink or the  Department of Veterans' Affairs card that certifies entitlement to Commonwealth health concessions

or

  • if you are:
    • getting Austudy, a youth training allowance or Abstudy
    • a person who has a grant of legal aid for the proceedings.

Also, the court or a registrar may direct that you are an "eligible individual" if satisfied that the full fee would cause you financial hardship and/or that it is in the interests of justice that you pay the set reduced fee.

You do not have to pay the fee if you are under 18 when it is payable.

Do I need a lawyer in a minor case claim?

Usually lawyers will not be allowed to represent you in a minor case claim. Even if a lawyer represents a person each person must pay their own lawyers fees.

The party who wins the case can claim 'allowable costs'. Allowable costs are:

  • court fees
  • service fees
  • costs of enforcing judgment (claimed after judgment if the magistrate's orders are not followed).

How do I start a minor case claim?

You can start a claim in the Magistrates Court by lodging a claim form, paying the fee, and serving the claim. The following information must be provided when lodging the claim:

  • the identity of the defendant. It is essential that the defendant be correctly identified on the claim.
  • 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 you are claiming.

When starting the claim, costs for the:

  • court fee, and
  • service fee

may be claimed.

Other costs may be awarded in exceptional circumstances or if there was no basis for the other party's defence or claim. If you wish to claim other costs you should write this on your claim. You do not have to state an amount.

You will need to convince the magistrate that exceptional circumstances exist and you would suffer an injustice if the costs were not awarded. Get legal advice about this.

Each copy of the claim must be signed. Photocopies and carbon copies of signatures are not acceptable.

Can I claim interest?

Interest may also be claimed from the date the claim arose. Write on the claim that you are claiming interest. Go to the Magistrates Court of WA website for more information on claiming interest.

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?

See under this heading in Starting a general procedure claim.

Where can I get the forms for court?

You can get them from the Magistrates Court of WA website or any Magistrates Court registry.

Go here to complete your claim form online. This form will have to be lodged in person unless you pay electronically.

Who can I make a claim against?

You can make a claims against the following people or organisations:

  • individuals (get legal advice about making a claim against a person with a legal disability such as an intellectual impairment or a person under 18, because special rules apply)
  • partnerships
  • companies
  • certain corporations such as hospital boards, local governments, etc
  • incorporated associations such as social clubs, churches, etc.

How do I know who my claim should be against?

Get legal advice.

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.

Joining defendants may be done when a claim is lodged or at a later date. 

You should always get legal advice before joining defendants.

Which Magistrates Court should I start my claim at?

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

When you can, it is best to lodge your claim at 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.

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.

A decision by a magistrate on an application to change a venue cannot be appealed.

What happens after my claim is lodged?

Once you have lodged your claim at the court you will need to "serve" it on, or give it to, the defendant. There are special rules for serving a claim.

A separate service copy and response copy of the claim form must be provided for each defendant you have joined.

Visit the Magistrates Court of WA website to read a fact sheet on serving a court document.

Note: the court serves your claim in a minor case consumer/trader claim.

What if I am having difficulty serving someone?

If you are having difficulty you may have to ask an enforcement officer to serve the claim. Ask the staff at the court to tell you how to arrange this. The enforcement officer has wide powers for the purpose of serving documents. You must prepay the service fee.

What if I can't find the person I need to serve?

Get legal advice.
You can make an application to the court to have service in a different way or to not to have to serve the claim. Before the court would do this it is likely it would want proof you have done everything you can to find the person, eg searched the white pages, placed an advertisement in the West Australian newspaper over a period of several weeks, etc.
 
For more information on steps you may need to go through and hints on how to do this, see under heading What if I can't find the current address of a person I want to make a claim against? in Starting a general procedure claim.

Is there a time limit on serving the claim?

You must serve the claim as soon as possible. It must be served within one year after it has been lodged and at least five clear days before the hearing of the application.

What are the steps in a minor case claim?

The diagram below shows the steps leading up to a trial in the Magistrates Court.

Remember the claim can be agreed and settled at any stage. Many claims settle before they get to to court.

                      Minor case procedure flowchart



Where can I get more information?

 Last reviewed: 07/10/2016

Last modified: 11/10/2016 10:16 AM

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.