• You need to take certain steps to start a civil case include completing the correct documents, set out the right way, to file in court.  
• Generally you will need to prepare a summons or a statement of claim.
• The summons or statement of claim is the document that formally starts the case and provides the court and other party with information about your claim.
• Once these documents have been filed with the court then they need to be served on the defendant.
• In most civil proceedings you will need to go to mediation or conciliation before you can file documents to commence proceedings or as a first step after commencing proceedings.
• We can give you more information about these procedures when representing you.

• A mediation is where you and the other party have a conference to try and sort out your disagreement without the need for a court case.
• The mediator is independent and their job is to help you to come to an agreement.
• At mediation both parties will get a chance to tell their side of the story and explain what they want and why.
• We can represent you in most mediations. 

• A remedy is the term used to describe the different options available to the court if someone succeeds with their civil litigation. There are different types of remedies such as:

1. damages; 

• This is money paid to compensate for the loss caused by the defendant. 

1. an injunction; 

• This is an order that a party stop taking an action. For example an order stopping a business using a specific brand name on their products.

1. rescission;

•     This is when a contract is cancelled.

1. specific performance. 

• This is when the defendant must carry out what they promised to do in the contract.
• Parties are expected to ask the court for a specific remedy and to explain why that remedy is appropriate. 

• In civil cases you need to ‘file’ your documents at your court registry. 
• Filing a document in court means placing a document on the court’s record.
• Usually you can file documents in person, via post, online or through your lawyer.

• If you have been served with a summons or a statement of claim this means that another person or business has started a civil case against you. You will be named as the defendant on the relevant documents. 
• You will need to file some documents with the court in response to the claim. Generally you will need to file a:

1. notice of appearance; 
2. notice of defence; and 
3. possibly a counterclaim. 

• We can advise you on your situation and help with preparing your documents. 

• A default judgment is a judgment made by the court against the defendant without a hearing. 
• You can apply for a default judgment if the defendant has not filed a defence within the specified timeframe, usually 28 days.

• A subpoena is a court order that requires a person to attend court to either:

1. give evidence;
2. produce a document; or
3. both.

• If you do not comply with a subpoena a warrant may be issued for your arrest to bring you to court. 

• You must apply to the court for leave (permission) to issue a subpoena or otherwise comply with court rules concerning the issuing of a subpoena. 
• If the Court agrees to give you leave to issue a subpoena it will stamp the subpoena with the court seal.
• The sealed subpoena must be served on the person personally.

• A costs order is when the court orders that the losing party pay the legal costs of the other party. 
• Costs are the lawyer’s fees and disbursements (money for a lawyer’s expenses) for running the case. 
• The court will ultimately decide:
• if a costs order should be made; and 
• how much should be awarded. 

• Consent orders are a document containing the terms of an agreement between two parties.
• They are a written document that is signed and dated by both parties. There must be genuine agreement that has not been made under threat or coercion.
• It is signed by a magistrate or judge and is binding on both parties. 
• Consent orders are legally enforceable. 
• It is important to get independent legal advice before you sign consent orders. 

Question

I am preparing my documents for a civil case. I am claiming damages because a tenant damaged some of my property and they are refusing to pay the bill. I do not have a lawyer and need to prepare the forms and affidavit by myself. Is there a special style I need to keep in mind?

Answer

• Generally courts want you to prepare you documents in a particular way. 
• You need to use copies of the correct forms from the court in which you will be filing proceedings.
• Documents such as your statement of claim or your affidavit (sworn statement) will need to meet some common formatting requirements. They will need to be:

1. typed;
2. on A4 paper;
3. font size 12;
4. times new roman or arial font;
5. adequate margins used; 
6. single-sided; and 
7. unfolded.

Question

I need to file my court documents with the registry. I have just seen the cost to file documents. The whole reason I am going to court is because I need compensation for the damages I have suffered. I am already out-of-pocket and there is no way I can afford this expensive filing fee. What can I do? Do I have any options?

Answer

• Generally you can apply to have the fee waived (put aside) if it will cause you financial hardship.
• The court registry will ask you to fill in a form and provide some proof about your financial situation. 
• Before making a decision they will look at your:

1. assets;
2. liabilities;
3. income; and 
4. expenses.

• You will need to provide evidence to support your financial position. This may be in the form of:

1. bank statements;
2. details about any loans;
3. shares and assets;
4. your employment status;
5. pay slips; and 
6. any pension cards.

• You can visit the website of the relevant court for specific details about how to apply for a fee waiver.

Question

Over the past five years I have loaned money to my friend at different times. She has a job but can never get on top of things. She has a little daughter so I have always helped out where I can so that the daughter does not have to suffer. I have helped her with bills and fixing her car. She always says she will pay me back but never does. I did not realise how much it added up to. She says she cannot pay me but I really need that money myself. Should I take her to court to get the money back?

Answer

• Before going to court it is a good idea to try and resolve the problem yourselves.
• You may also want to try taking some other steps first if you want to maintain the friendship. 

1. You could try talking to her about it or writing a letter laying out how much she owes and why you really need the money. 
2. You could suggest a payment plan as a way to get the money back without needing to go to court. 

• There are other options before going to court such as:

1. writing a letter of demand; or 
2. going to mediation. 

• You can write a letter of demand stating when the money must be paid back and the action you will take if it is not paid back at that time. Sometimes getting a formal letter from a lawyer encourages people to act.
• If your friend agrees you can go to mediation to try to resolve the matter.

1. This is a more cost effective option that going to court. 
2. An independent mediator may be able to help you both come to an agreement about the debt.

• If these options do not work then you may wish to investigate commencing court proceedings. At this point in may be a good idea to speak to us so that you get a good idea about the strength or your claim and an estimate about the costs of running a civil case.

Question

I recently went to court as the defendant in a civil case. The magistrate made an order against me. He found that it was my fault that the accident happened and that I needed to pay for the damage to the plaintiff’s car. I am unemployed at the moment and have been for over a year. I can barely cover my living expenses. This damages order is too much. I really cannot afford to pay it until I start working again. What are my options?

Answer

• You must comply with a court order. But if you are genuinely suffering from financial hardship then you do have some options. 

1. You can try to negotiate with the other party for more flexible options for paying the damages. 
2. If the other party does not agree to an alternative repayment option then you can apply to the court to pay the debt in instalments.

• If you do nothing then the other party can take steps to make you pay the damages. The court may arrange to send the sheriff to your house to collect and sell some of your property to pay the debt.
• You may need to get some legal advice about your options and to assist you to negotiate with the other party. 

Question

I work in a factory. Around 6 months ago I hurt my back. Since then I have had to go to the doctor and a physio nearly once per week. Plus I have had to pay for lots of anti-inflammatory medicine to try and manage the pain. I made a claim for WorkCover but it was rejected. Should I go to court now? I need compensation.

Answer

• In most proceedings you must first attend conciliation or mediation before you are allowed to commence civil proceedings in court. 
• Conciliation and mediation are alternative dispute resolution processes that help people to come to an agreement without the need for court. 
• Remember that if you go to conciliation or mediation you must make a genuine effort to resolve the dispute. 
• If the dispute is not resolved then you may then take the matter to court. 
• At this point you may like to get some legal advice about the strength of your case and an estimate of the costs for running your case. 

Question

I have already filed my writ to start my civil case. A process server served this document and my statement of claim on the defendant last week. I have just realised I have accidently made some mistakes in the summons. I need to change these mistakes. Can I do this?

Answer

• Yes you can amend the summons. 
• Once you have made the changes you will need to file it at the court.
• A copy of the amended summons must then be served on the defendant.

Question

I used to work for a clothing company and there were two directors. They both did the wrong thing by me and owe me wages. I want to sue them both because they are both responsible. How can I do this?

Answer

• In certain circumstances two or more people can be joined as defendants in a civil case. This is referred to as a ‘joinder’. 
• There are certain situations where this may be permitted such as where:

1. there is a common question will need to be determined in all the cases even though the defendants are separate;
2. the defendants are jointly liable under a contract; or
3. the relief claimed relates to:

• the same transaction or 
• the same series of transactions.

• In your case both the directors would probably be jointly liable under your employment contract. 

1. However the answer to your question depends on the exact terms of your employment contract. 
2. You will need to get some specific legal advice about your employment contract and how the law applies to your situation. 

Question

One of my old employees has brought a civil claim against our company wanting extra wages. There is no basis for her claim. Now the case has been listed for a pre-hearing conference. I would like to know more about what this is. 

Answer

• A pre-hearing conference happens before the matter is listed for a hearing. 
• It is a mandatory meeting that all parties must go to. If you instruction us we will represent you at this meeting.
• The purpose of the pre-hearing conference is to help the parties to try to reach an agreement to resolve the issue.

Question

I have filed a writ and statement of claim at the court registry. I am making a claim for damages against my landlord. The registry staff told me I need to serve the other party but I have no idea how to find them. He does not take my phone calls and I do not know where he lives. How can I serve the documents on him?

Answer

• If you are cannot find the other party then you may apply to the court for substituted service. 
• Substituted service is a special process where you let the defendant know about the court case in an alternative way. Examples of substituted service methods include:

1.  text messages;
2.  phone calls; and
3.  Facebook posts. 

• Another option is to use a process server. They are professionals who have special expertise in finding and serving court documents on people.
• You should speak to us to discuss your options. 

Question

I have already tried everything to serve my court documents on my landlord. I am representing myself as I cannot afford a lawyer or a process server. I would like to know more about how I can apply to the court for substituted service?

Answer

• The registry staff will be able to help you with questions about how to apply for substituted service at your court. 
• Generally you will need to apply in writing.
• You must send a letter to the court asking for substituted service.
• You must also prepare a supporting affidavit. This affidavit will need to include information such as:

1. the date of the summons; 
2. your attempts to serve the documents; 
3. the time and place of these attempts at service; and
4. your proposal for an alternative way of serving the documents. 

• You must include information about:

1. your genuine attempts to find the person; and
2. how the attempts have been unsuccessful.

• You must also explain how the proposed method of service will successfully tell the defendant about the court case.