Going to court

Contributed by Ian Macdonald and Andrea Highman and current to 1 September 2005

At the time of writing (February 2005) the Western Australian parliament has passed legislation which changes the lower Court system in this State, and the system of enforcement of all civil judgments of State Courts, in a radical way. This legislation is expected to come into operation in May 2005.

NEW COURT STRUCTURE

A new, state-wide Magistrates Court has replaced the Local Court, the Courts of Petty Sessions, and the Small Claims Tribunal. The Magistrates Court has both civil and criminal jurisdiction. It can deal with civil matters up to $50,000, and on 1 January 2009 this limit will rise to $75,000. The Magistrates Court has the criminal jurisdiction previously exercised by the Courts of Petty Sessions: that is, the less serious criminal matters, and the first stage of all criminal matters. The Magistrates Court has a power to deal with consumer-trader claims within the monetary limits mentioned above, and there is a Minor Cases Procedure within the Magistrates Court.

MINOR CASES PROCEDURE

Matters where the claim is no more than $7,500 can be dealt with in the Magistrates Court under the Minor Cases Procedure. This is not a separate division of the Court, but a procedure within it. On 1 January 2009 the limit on the Minor Cases Procedure will rise to $10,000.

Legal costs in a minor case

The general rule in a case brought under the Minor Cases Procedure is that a successful party can only be awarded the out-of-pocket expenses it has incurred in bringing the case, such as the cost of filing and serving a summons, and enforcing a judgment. The successful party will normally have to bear any other costs they incur.

A party can choose to bring a case which could be heard under the Minor Cases Procedure under the General Procedure (see below). However, if they are successful they are only entitled to recover the costs which they would have been entitled to recover under the Minor Cases Procedure. Also, the Court has power to order that it be heard as a Minor Case.

Legal representation

The general rule is that a party to a minor case cannot be represented by a lawyer. A party who wishes to bring a case under the Minor Case limit, but wishes to be represented by a lawyer, could choose to bring the case under the General Procedure. However, even if successful, that party will not generally recover their legal costs, but only their out-of-pocket expenses allowable for a Minor Case.

Procedure

Minor Cases are generally to be heard in private, and in an informal way. The Court will encourage the parties to reach a settlement of the matter which is acceptable to them. The Court can take a more active role than is usual in the State Court system in informing itself as it sees fit.

GENERAL PROCEDURE

In the General Procedure of the Magistrates Court there are some changes designed to make proceedings less expensive and adversarial than under the former Local Courts Act. The Court has the power, with or without the agreement of the parties, to order that a case, or an issue arising out of it, be dealt with by a mediator. The Court has a similar power to refer a question arising in a case to an expert, to investigate and report on a matter. The Court can give summary judgment (that is, judgment in advance of a full hearing) for or against a claim if the person bringing the claim, or the other party, fails to satisfy the Court that they have a reasonable prospect of success.

APPEALS

In the Minor Cases jurisdiction, a party can only appeal on the ground that the matter was not properly within the Minor Case jurisdiction, or that they were denied natural justice.

In the General Procedure jurisdiction of the Magistrates Court, a party can appeal to the District Court. This appeal must be commenced within 21 days from the date of the judgment. The District Court will generally decide the appeal on the material that was before the Magistrates Court.