Commencing Court Action in South Australia

Commencing court action

If your letter of demand or Final Notice fails to obtain payment, you can commence court action.

Firstly, consider which court to issue the legal action from. If your Terms of Trade have given jurisdiction to the South Australian courts, it will be a choice between:-

• The South Australian District Court; or
• One of the Magistrates Courts (there are 5 in the metropolitan area – Adelaide, Christies Beach, Elizabeth, Holden Hill and Port Adelaide).

Claims of up to $100,000 are issued from the Magistrates Court.

Claims of less than $12,000 are commenced in the Minor Civil Claim jurisdiction of the Magistrates Court. If the claim for less than $12,000 is defended, the parties must represent themselves. This requirement does not prevent you from getting legal assistance “behind the scenes”, but you must attend the hearings and, if necessary, the trial personally.

Claims for debts of more than $100,000 are issued from the District Court. Generally, we recommend you obtain legal advice before issuing legal action in the District Court.

Filling out a Magistrates Court Claim Form

The Magistrates Court has a Claim Form to initiate proceedings in the general jurisdiction (claims over $12,000), or a Minor Civil Action Claim Form to initiate an action in the Minor Civil Claims jurisdiction (claims of $12,000 or under). These forms can be downloaded from www.courts.sa.gov.au.

If the debt relates to an unpaid invoice, include information such as your invoice number and the date of the invoice. This clearly identifies what the claim relates to – a lot of court actions roll on and on because the defendant says they are not clear about what debt is being claimed.

Do not include evidence in your Claim. Just state the material facts. It is the purpose of the trial (only if the claim is defended) to prove those facts by evidence.

Example text for Particulars of Claim

For claims relating to outstanding accounts for services provided, an example of the text to include in your Claim is as follows:-

Particulars of Claim

1. The plaintiff’s claim is for $____, being the amount [or balance] owing for [insert type(s) of services] undertaken by the plaintiff for the defendant during the periods [date] to [date].
2. On or about [date] the plaintiff and the defendant entered into an agreement with respect to the terms on which the plaintiff would provide services to the defendant. The plaintiff then performed services under the agreement at the defendant’s request.
3. The plaintiff invoices the defendant for its services in accordance with the agreement between the plaintiff and the defendant.

Particulars

(a) Invoice numbered [reference number] dated [date] in the amount of $___.

• Pursuant to Clause [number] of the agreement, interest at [number]% per annum accrues on invoices [number] days overdue.
• And the plaintiff claims:-
  • Unpaid balance $___; and
  • Interest from [date] until [date] as pleaded in 4 above, being $____.

For claims relating to outstanding accounts for goods sold and delivered, an example of the text to include in your Claim is as follows:

Particulars of Claim

1. The plaintiff’s claim is for $___, being the balance of the price of goods sold and delivered by the plaintiff to the defendant.
2. On or about [date] the plaintiff and the defendant entered into an agreement with respect to the terms on which the plaintiff would extend credit to the defendant for the purposes of supplying goods. The plaintiff then supplied goods to the defendant under the agreement and at the defendant’s request.
3. The plaintiff issued accounts to the defendant in relation to the goods sold and delivered in accordance with the agreement between the plaintiff and the defendant.

Particulars

(a) invoice numbered [reference number] dated [date] in the amount of $___.

• Pursuant to Clause [number] of the agreement, interest at [number]% per annum accrues on invoices [number] days overdue.
• And the plaintiff claims:-
  • Unpaid balance $___; and
  • Interest from [date] until [date] as pleaded in 4 above, being $___.

Service of Claim

If you are fairly certain that you have the correct and current address for the debtor, request the Court to serve the Claim by post. There is no charge for this. However, there is a risk that the debtor will later deny receiving the Claim and apply to set aside judgment.

Other methods of service include:-

• By private bailiff (this can be expensive – $80 plus, but ensures certainty of proving service);
• By leaving it at the home or business of the debtor with a person over the age of 14 years;
• Fax; and
• Email (if the debtor has provided you an e-mail address for the purposes of service).

Preparing a Summons in the District Court (claims over $100,000)

The requirements for preparation of a Summons and Statement of Claim to commence an action in the District Court are not simple. I recommend that you obtain legal assistance to prepare them.

Cost of initiating proceedings

The cost of filing a claim is currently:-

• $159 for minor civil actions in the Magistrates Court (i.e. less than $12,000);
• $587 if it’s a corporation and $364 in other cases, for general civil actions in the Magistrates Court (i.e. between $12,001 and $25,000); and
• $836 if it’s a corporation and $445 in other cases, for general civil actions in the Magistrates Court (i.e. between $25,001 and $50,000); and
• $1225 if it’s a corporation and $836 in other cases, for general civil actions in the Magistrates Court (i.e. between $50,001 and $100,000); and
• $1945 if it’s a corporation and $1380 in other cases, for actions in the District Court (i.e. over $100,000).

Filing fees can be recovered from the debtor if:

• an agreement is not reached after sending the Final Notice; and
• you commence formal legal action; and
• your legal action is successful.