The Small Claims Division of the Local Court of New South Wales has jurisdiction to deal with claims up to $20,000.
The person making the claim is called the plaintiff. The person defending the claim made against them is called the defendant.
If you are served with a statement of claim, you should obtain legal advice from a solicitor at a law firm, community legal centre and/or legal aid office.
What do I need to defend a matter?
The plaintiff commences proceedings by lodging and serving a document titled ‘Statement of Claim’. The statement of claim sets out the allegations made by the plaintiff against you.
If you do not agree with the allegations made by the plaintiff against you, you should file a defence within 28 days of being served with the statement of claim.
What happens at pre-trial review?
The first time the matter is listed for directions in the Small Claims Division is for a pre-trial review.
Pre-trial reviews are usually dealt with by the Registrar. You should address him or her as “Registrar”. In the event that the matter is before a Magistrate, you should address him or her as “Your Honour”.
At the first pre-trial review, the Court will attempt to see whether the parties are able to reach a resolution of the matter. If this is not possible, the Court will enquire as to whether the parties are able to agree on any allegations made by the plaintiff in the statement of claim. If this is not possible, the Registrar may either seek to prepare the matter for hearing, set a date for hearing, or relist the matter for another pre-trial review.
If you would like a witness to give evidence at the hearing, you should ask the Registrar/Magistrate at the pre-trial review to grant permission for the witness to give evidence at the hearing. Also, you will need permission from the Registrar/Magistrate to issue subpoenas on parties’ outside the proceedings.
What is a subpoena?
A subpoena is a court order requiring a third party to produce documents specified in the schedule to the Court. There is a filing fee incurred for filing a subpoena with the Court. Also, you will need to provide a cheque to the third party for disbursements incurred in producing the documents requested in the subpoena. The third party can request for their reasonable costs of producing the requested documents from you.
What do I need to defendant the matter?
In order to defend your matter at hearing, you will need to file evidence to support your defence. Your evidence can include material like:
- text messages;
- bank statements;
You should also consider preparing a witness statement setting out events and circumstances relevant to the matters in dispute between the parties. Your statement should consider setting out what your saw, heard and felt at the relevant time in dispute.
You will need to send your evidence and witness statement to the Court, by the date set by the Court.
What happens at a hearing?
At a Small Claims hearing, a Magistrate or Assessor will hear each sides case and determine an outcome. The hearings are usually informal and do not follow strict rules of evidence.
Usually, witnesses do not give evidence in person and are not cross-examined about their evidence. The Court will only rely on written statements from witnesses.
If I lose, do I pay costs?
If you lose your case, the Court has the discretion to award costs in favour of the winning party. However, there is a cap on the legal costs that may be awarded in the Small Claims Division depending on the amount claimed.