if i am being sued
Click
here for a printable version of this page
[Last Updated 04/08/2010]
What if I receive a final notice of claim?
If you receive a final notice of demand (called a pre-lodgement notice), someone believes that you owe money to that person. The notice is a formal warning that you should pay the money or the person sending it will go start legal action. You have a total of 21 days to:
If you ignore the notice, at the end of 21 days the other party will be able to start a legal action to recover the money. It is important that you respond within 21 days to let the other person know your position.
See The First Step: Pre-lodgement Fact Sheet for more information.
If you haven't been able to agree with the other party after the final notice, the next step available to both parties is mediation. Mediation is available when all parties agree to participate. Mediation allows you an opportunity to sit down with a neutral third party, the mediator, whose job is to assist you to try to reach an agreement. Mediation often helps to resolve disputes.
Mediation is confidential, so anything you say in mediation will not be repeated and can’t be used against you later if the matter goes to court. The mediator will not force you into an agreement. It is up to you whether you are happy to accept an arrangement made in mediation. If you cannot agree, the next step is formal legal action. This begins with the party seeking to recover the alleged debt lodging a claim.
See the The Second Step: Mediation Fact Sheet for more information.
What if a claim is lodged against me?
If a claim is lodged against you, it means the other party (now known as the plaintiff) is bringing formal legal action against you (now known as the defendant) in court to recover the money.
If a claim is lodged against you, it will be served on you, so you will be aware of the action. A claim can be served on you through post from the court, or the plaintiff may deliver it to you, or it may be delivered to you by a Sheriff’s officer. The claim will state the amount the plaintiff is claiming, the names and addresses of parties, the dates of the dispute and what they want from you.
Do I have to respond to a claim?
You should respond. Responding to the claim doesn’t mean that you have to pay the amount claimed. It means you acknowledge that they have made a claim against you and tells them what you want to do about it. You have 21 days to respond.
If you don’t respond to the claim, the plaintiff can go to the court and ask for judgment to be entered against you for the full amount of the claim. If the court enters judgment against you, you will have to pay the amount the plaintiff has asked for. They can take further court action to force you to pay, including having your property seized and sold. Make sure you respond to a claim to prevent this from happening. If judgment is entered against you, you can apply to the court to have the decision set aside if you have good reason(s) why you didn’t respond. The court has to be convinced that you have an answer to the claim. Do not rely on this, as the court will not always set aside a judgment. It is best that you respond rather than take the risk.
If you wish to respond to the claim, there are a few ways to do this.
To defend the claim, you file a form called a defence (Form 4) with the court. A defence is an answer to the claim stating that you contest or challenge the claim. You also say why you disagree with the claim. To file a defence you will need to visit a court registry and they will give you the form and answer any questions that you have.
When you file the defence, you might also wish to file a counterclaim (Form 5).
You may do this if you believe that the plaintiff owes you money. You don’t have to file a counterclaim. Only do so if you have a good reason to believe that the plaintiff owes you something. It is a waste of time to file a counterclaim to simply annoy or inconvenience the plaintiff and the court will not look upon that favourably. There will also be a fee involved for filing a counterclaim.
If you are confused about how to respond to a claim, contact the call centre on 8204 2444 or email them at enquiry@courts.sa.gov.au. They cannot give you legal advice but will help you with any questions you have about the procedure.
What if I want to pay the amount of the claim?
If you pay the amount of the claim, the matter is resolved and the formal legal action ceases. If you want to pay, you need to contact the plaintiff within 21 days of being served with the claim and let them know you will pay. If you want to pay but don’t think you can pay the whole amount at once, you might be able to negotiate with the plaintiff to pay in instalments. Make sure that this is put in writing and signed by both parties, with a copy for each of you. You can also choose to sign an Enforceable Payment Agreement (Form 1B). This acknowledges that you have agreed to pay and sets out the arrangements you have made to make payments.
Don’t forget that at any stage of the process, even during the trial, you can settle the claim by agreeing to pay the amount of the claim or agreeing to an arrangement with the plaintiff. All you have to do is contact them and inform them of your decision. You don’t have to continue with the process if you are willing to settle the dispute by making payment. Once you have told the plaintiff you wish to settle, you discuss details for payment with them. The court will not do this for you. Inform the registry as soon as possible if you have decided to settle the matter.
What if I think someone else should pay?
If you think that someone else is responsible for the claim against you, you can try to join them in the proceedings by filing a third party notice (Form 6). This may mean that you agree you owe the plaintiff some of the money and a third party owes them the rest, or it may mean that you think that you don’t owe anything and a third party owes all of it. You need to go to the court registry and file the form within 21 days of filing your defence to try to join the third party and the court must give permission for this. You also need to serve the third party notice on all the other parties involved, the plaintiff and the third party. If you want to join a third party, do this as soon as possible and don’t wait until the trial begins.
What if I don’t think I should pay?
If you don’t think you should pay and you have filed your defence, the matter goes to a directions hearing. This is an informal court appearance where both of you attend. It is an information gathering hearing to see how the matter is progressing and determine the position of each party. The directions hearing may help to resolve the matter or resolve some of the issues. The court will post you a notice letting you know when the directions hearing will be. Usually it will be about three weeks after you have filed your defence. You need to attend the directions hearing as the plaintiff can ask the court to enter judgement against you if you fail to attend. If you have genuine problems in attending the directions hearing, contact the court registry as soon as possible. Do not leave it until the last minute.
See Directions Hearing Fact Sheet for more information.
If the directions hearing does not resolve the matter, it will be listed for a trial. The date of the trial will be set at the directions hearing and will usually be about two to three months after the hearing.
What will happen at the trial?
See Preparing For A Trial Fact Sheet for information on how to prepare for the trial.
See Going To Court Fact Sheet for information about the court and miscellaneous information regarding court behaviour and how to speak to the magistrate etc.
The magistrate will first ask the plaintiff, to enter the witness box to give their evidence. They will be asked to swear an oath or promise to tell the truth. The magistrate will then either ask them a series of questions or ask them to tell their story. Once they have done this, the magistrate will ask you whether you would like to ask the plaintiff any questions. If they have witnesses the court will hear evidence from the witnesses once the plaintiff has finished.
After the plaintiff and the plaintiff’s witnesses are finished, the magistrate will follow the same procedure with you, where you give your evidence and then your witnesses will be heard. Make sure to tell the truth when giving your evidence, as lying to the court is a criminal offence and you can be punished.
The magistrate will make a decision based on all the information both parties have given to him/her. Sometimes the decision will be made on the day but sometimes the decision will be made at a later date.
See The Trial Fact Sheet for more information about the trial.
In the minor civil process, you cannot have a lawyer with you during the trial. Exceptions to this are where one of the parties is a lawyer, or where both of you agree to have lawyers and the court consents. If you think you will be seriously disadvantaged by not being able to have a lawyer, you may ask the court for permission.
You may consult a lawyer at any other stage of the process for assistance and advice.
If you do want to speak with a lawyer, you may seek a private lawyer or there are a number of free legal advice organisations that may be able to help you.
See General Questions Fact Sheet for information on legal advice organisations.
If you win the case, you do not have to pay the amount the plaintiff claimed and that will be the end of the matter. If you have filed a counterclaim and you are successful, the plaintiff has to pay you the amount that the court orders.
See If You Are Successful Fact Sheet for information on recovering money owed to you if the other party refuses to pay.
If you lose, you have to pay the plaintiff the amount that the court orders. If you think that you can’t pay the amount in full straight away, tell the court and they can make arrangements for you to pay in instalments.
If you disagree with the magistrate’s decision, you may apply to the District Court for a review of the judgment. To do this, you need to go either to the District Court civil registry, located in Sir Samuel Way Building, Victoria Square, or a local Magistrates Court and write an application. Court staff can explain what is required. You will have 21 days from the date of the judgment to apply for a review.
For further information about applying for a review, contact the District Court registry on 8204 0189, email them at district.civil@courts.sa.gov.au or visit the registry in person.
| Main
menu |
| Are
you thinking of taking a matter to court? |
| Is
someone taking you to court? | Going
to court |
| Are
you a witness? | The
judgment | Forms
| Checklist
|
caa| community| courts| media| schools| lawyers/unrepresented| sheriff's office| home