If you have not paid a debt or come to a satisfactory arrangement after a creditor has requested payment from you, the next step the creditor might take to force you to pay is to sue you. This means the creditor seeks a court order (known as a judgment) that you owe a debt. Other than the enforcement of the payment of a debt, there are many other reasons that a party may issue a writ against another party such as breach of contract; negligence; and misleading or deceptive conduct, to name but a few causes of action.
The court in which a plaintiff sues a defendant depends on how much the plaintiff is claiming. The “jurisdiction” of a court is based on the maximum sum that the court can award in an action. The monetary jurisdiction for each of the Western Australian courts is as follows:
- Magistrates’ Court: up to $75,000;
- District Court up to $750,000; and
- Supreme Court: unlimited.
Therefore, if the amount in dispute is $75,000 or less and the matter otherwise falls within the jurisdiction of the Magistrates Court, the claimant will issue a complaint in the Magistrates’ Court. If it is over $75,000, the plaintiff has a choice between the District Court and the Supreme Court in issuing a writ depending on both the monetary value of the amount in dispute and the nature of the dispute.
In the Magistrates Court, the first step a claimant takes to sue is to file a document called a “complaint”, which sets out the claimant’s claim. The complaint document is issued by the Registrar of the Magistrates Court where the claim is filed.
If you receive a complaint, act immediately. It will not show a date for a hearing, because a complaint allows for automatic judgment to be made against you unless you fill in the “intention to defend” section within 14 days of receiving the complaint. This means that the court can make an order against you without you having to appear in court. It is called “default judgement.”
Don’t lodge an ‘intention to defend’ automatically; seek advice first, speak to a lawyer. They can advise on any defences available to you.
After you lodge your “intention to defend”, a registrar must forward a copy of your “intention to defend” to the claimant along with a notice to both the claimant and you. A pre-trial conference date will then be listed and the claimant may lodge a statement of claim which sets out their case against you. You should lodge a statement of defence no later than 14 days after being served with a statement of claim. This should set out why you are arguing against the claim.
We highly recommend that legal advice is obtained to prepare these documents.
Where the proceedings have been commenced by a writ or originating summons in the District Court or Supreme Court, you may enter an appearance by filing a “memorandum of appearance” within the time limit stated; it is 10 days if you live within 300km from Perth.
If you fail to file an appearance, the plaintiff may seek a default judgment. Note that an entry of appearance by you constitutes a submission to the jurisdiction of the court and can have the effect of waiving irregularities.
We advise that you should seek legal advice before lodging an appearance.
The plaintiff will file a statement of claim setting out the facts on which their claim is based and the orders sought from the Court.
You will then file a defence, setting out the facts which you wish to place before the Court, in opposition to the plaintiff’s claim. You may also file a counterclaim containing a claim against the plaintiff.
Above are just the beginning stages of the civil procedures in the Magistrates, District and Supreme Court.