How do I defend myself in the Local Court

If you cannot afford or do not want a solicitor to defend you, make sure you receive some legal advice and information from places such as a community legal centre as to what you can expect when you are in court. A Chamber Magistrate of the Local Court can also be very helpful in guiding you through the process of how to defend yourself.  It is not necessarily hard to defend yourself but you need to be prepared.  You will probably need to file documents before the court date and it is best if you are familiar with court procedure and rules.  Anybody can watch proceedings in a local court and it is a good idea to go to the court before your matter is listed to be heard, or earlier on the same day as your matter is listed, and watch the magistrate deal with matters that are similar to your own.

 

 

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Which Court Will I Be In On The Day?

This will depend on the amount being claimed and the court in which the matter was originally brought.  For debts less than $10, 000 the matter will be in the Small Claims Division of the local court and for claims greater than $10, 000, the matter will be in the General Division of the local court.  This fact sheet only deals with actions in the Small Claims Division.

 

 

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Which Documents Should I Have Prepared And Filed Before I Go To Court?

Usually if you are going to court it is because you have decided to defend the claim against you.  You should have prepared your  Defence and filed it with the court within 28 days of receiving the original Statement of Claim.  If the person claiming money from you also owes you money, you should prepare and file a Statement of Cross-Claim, also within 28 days from receiving the original Statement of Claim.  Your Defence and Cross-Claim (if there is one) would need to be served on the other party as well.  There will be contact details on the original Statement of Claim that they served on you and you should use this information to serve them with your documents.  Refer to our Fact Sheet 8 called: “Recovery of Debts. What do I do about getting forms, and filing and serving documents?”

 

 

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How Do I Collect and Present My Evidence?

If you have any witnesses, you should ask them to prepare a written statement.  There are forms for these statements, called an affidavit, which you can get from the court or if you have internet access on your computer you can download them from the website: www.lawlink.nsw.gov.au

The written statements (affidavits) would need to be signed by the witness and the signature witnessed by a solicitor or a justice of the Peace.  The statements must contain only information that the writer (called the deponent) believes to be true. The Deponent either swears or affirms the affidavit, and signs it stating that this to be the case. It is against the law to provide written evidence by an Affidavit or Statutory Declaration that you know to be untrue or do not care whether it is true or not.

 

Other evidence, such as receipts, contacts or other documents should be taken with you to court.  Make sure you have the originals as well as photocopies, which you may need to hand up to the magistrate hearing your matter.

 

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What Happens The First Time I Go To Court?

You will be asked to attend a Pre-trial Review.  This is an informal meeting and is usually for the Court to see how the case is progressing.  It is also an opportunity for you and the other person (or your solicitors) to try to settle the matter.  Settlement is encouraged and there is a Court official there to help you.  Depending on which local court you are appearing in, sometimes the matter is firstly heard by a Registrar of the Court and not a Magistrate. You address a Registrar as “Registrar” and a Magistrate as “Your Honour”.

Before the Pre-trial Review, try to think of what kind of settlement terms you are happy with or an amount you would accept and what you would not accept.  Write it down and take it with you but don’t show the other party.  This will prevent you from being pressured into a settlement you do not believe is reasonable and will help you stay on point and focused on the day. 

This is not a trial but you should bring evidence with you.  You will receive an information sheet from the court (when it notifies you of the date when you need to go to court) of what you need to do before the court date and what to bring with you.

 

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What Happens If We Do Not Reach An Agreement At The Pre-Trial Review?

The matter will normally be given a date for hearing. At the hearing you will have an opportunity to present all your evidence.  At this stage you may need to bring your witnesses with you. You will also have the opportunity to challenge the evidence of the person bringing the claim.  The magistrate in the Small Claims Division would conduct the hearing with the least amount of formality possible and it is very common for people to come before the court without legal representation.  If you have any questions about what is going on in the court, do not be afraid to ask the magistrate.  There will often also be a legal aid solicitor in the court on the day and they may also be able to help you, even if they cannot represent you.

 

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I Need An Interpreter. Will There Be One Available?

You have the right to an interpreter and should give the court some notice of this. In most cases, you might have to organise your own interpreter.  If you need an interpreter and one is not available, ask for the matter to be adjourned until you can organise an interpreter. You will have to pay for your interpreter in most debt (civil) matters so it is best to find out how much it will cost before you go to court.  You should also make sure you have an interpreter when you receive legal advice.

 

 

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Will I Have To Pay Costs If I Lose?

You may have to pay more than your own costs and the amount of the claim, especially if you are unsuccessful. There are limits to the costs that can be claimed though, especially in the Small Claims Division of the Local Court. Usually you will have to pay the costs for specific things, such as filing fees and services. You might also have to pay the costs of the other party’s solicitor. If you win you should ask for your costs to be paid.

 

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What Happens If I Lose And I Don't Have The Money To Pay?

If you can afford to, ask the judge to allow you to pay by instalments. You can also apply to the Court to pay by instalments. This might reduce the financial burden on you.  Otherwise, the person who is seeking to have the judgment enforced against you can take other actions to get their money.  They might be able to take money from you wages or bank account or sell some of your goods, or apply to make you bankrupt. Some proceedings such as an examination summons means you wouldl be required to attend court again. See the Fact Sheet 7, called: “Recovery of Debts: What happens when I have a judgment debt to pay?”

 

 

Produced by Redfern Legal Centre.
This factsheet is no substitute for legal advice. If you have a problem please seek legal advice from your local community legal centre