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Magistrates Court Civil

SA

This publication guides practitioners through the conduct of civil proceedings in the Magistrates Court of South Australia.

5 Matter Plans

Overview

The Magistrates Court Civil commentaries cover key topics, including letters of demand, settlement, initiating and responding to proceedings, default and summary judgment, case management, disclosure, and trial in the Magistrates Court of South Australia.

The Intervention Order guide covers applying for an order, negotiating, varying and appeals.

The Reference materials folder includes guidance on electronic signing and witnessing, and the comprehensive Getting the matter underway folder includes compliance and client care documents. Using the extensive Retainer Instructions when gathering information ensures nothing is missed.

Also included is 101 Subpoena Answers, which is a useful reference guide.

Precedents in this publication include:

  • Library of letters of demand and example response to letter of demand;
  • Example offer of compromise and Calderbank offer;
  • Library of example consent orders;
  • Library of events for initiating application;
  • Example content for:
    • substituted service, amending the initiating application, and seeking injunctive relief;
    • defence, cross claim, summary judgment, summary dismissal, consolidation, security for costs, default judgment, and notice of discontinuance;
    • interrogatories, and content for setting aside subpoenas and notices to produce;
    • consent orders, terms of settlement, and deeds of release.
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5 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Magistrates Court Civil (SA) - Acting for the Applicant
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Subpoena Answers
    • Item icon 101 Costs Answers
    • Folder icon Papers and articles - Litigation
      • Item icon Improving written submissions - A paper by Judge Alan Troy
      • Item icon Plain language – A paper by the Hon. Michael Kirby AC CMG
    • Folder icon Demonstrating the use of precedents
      • Item icon Demonstrating the Use of Precedents
        To demonstrate the range of precedents available in the guide and to illustrate how they can be adapted to a particular matter, one set of precedents are based on a set of facts in a debt recovery that escalates when a cross-claim is brought alleging a course of conduct between the parties and a ...

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      • Item icon Demonstration - Letter of demand
      • Item icon Demonstration - Response to letter of demand
      • Item icon Demonstration - Pleadings and particulars
      • Item icon Demonstration - Request for further and better particulars
      • Item icon Demonstration - Defence
      • Item icon Demonstration - Affidavit of defendant
      • Item icon Demonstration - Cross-claim or counterclaim
      • Item icon Demonstration - Defence to cross claim or counterclaim
      • Item icon Demonstration - Calderbank offer
      • Item icon Demonstration - ADR order - Referral to mediation
      • Item icon Demonstration - Mediation position paper - Plaintiff
      • Item icon Demonstration - Mediation position paper - Defendant
      • Item icon Demonstration - Consent orders
      • Item icon Demonstration - Deed of release - Settlement of proceedings
    • Item icon Further information
  • Item icon Overview and limitation periods
    The Magistrates Court Act 1991 and the Uniform Civil Rules 2020 provide the procedure for the conduct of proceedings in the court. The general discussions in this commentary apply to matters in the civil divisions of the Magistrates Court: Minor Claims, General Claims and Consumer and Business ...

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Magistrates Court civil
    • Item icon To do list - Magistrates Court civil - Acting for the applicant
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Civil litigation
    • Item icon Retainer instructions - Debt collection
    • Item icon Conflict of interest check
    • Item icon Initial letter to applicant with costs agreement explaining the process
    • Item icon Letter to client enclosing costs agreement and advising on mediation
    • Item icon Costs agreement - SA
    • Item icon Third Schedule - Costs Scales
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Taking instructions from applicants
      Take detailed instructions using the Retainer Instructions – Civil Matters. One of the most crucial questions to answer in this jurisdiction is whether the respondent has any money or means to pay the client if a judgment is obtained.

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    • Item icon Letters of demand
      It is usual for a claimant to send a letter of demand before commencing proceedings. The exception might be if there is urgency such as the imminent expiry of a limitation period. Even then, a letter of demand with a shortened time for response would usually be warranted. If the claim is genuine ...

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    • Item icon Costs consequences of bringing proceedings
      Because going to court can involve the client in significant costs, the first consideration is whether the problem can be solved in another way, perhaps by negotiation or mediation. The pre-action steps for claims requiring both parties to attend a pre-action negotiation meeting are intended to ...

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    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Settling it early
    • Item icon Settling it early
      Parties can agree to a settlement before or after proceedings are commenced. If there is agreement after issuing a Letter of Demand or pre-action claim, or at any time before proceedings are commenced, the parties can enter into Terms of Settlement that incorporate their agreement. The terms may ...

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    • Item icon Letters of demand
      It is usual for a claimant to send a letter of demand before commencing proceedings. The exception might be if there is urgency such as the imminent expiry of a limitation period. Even then, a letter of demand with a shortened time for response would usually be warranted. If the claim is genuine ...

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    • Folder icon Letters of demand
      • Item icon Pre-action claim letter to respondent
      • Item icon Pre-action claim letter to respondent's solicitor
      • Item icon Standard letter of demand
      • Item icon Letter of demand with claim
      • Item icon Letter of demand to guarantor
      • Item icon Letter to client enclosing copy letter of demand
      • Item icon Letter to defendant chasing instalments
    • Folder icon If required - Statutory demand
      • Item icon Creditors statutory demand for payment of debt
      • Item icon Affidavit accompanying statutory demand
      • Item icon Letter serving statutory demand
    • Item icon Letter to other side to cease and desist
    • Item icon Final notice
    • Item icon Letter to client advising on alternative dispute resolution
    • Item icon Letter to client suggesting that proceedings be referred to arbitration
    • Item icon Letter to other side proposing settlement conference
    • Item icon Example deed of release after letter of demand
    • Item icon Mediation services
      The Mediation Unit can assist the parties. There are also some free community mediation services available for certain types of matters, such as Uniting Communities Mediation Services. Private mediation is always available at the parties’ own cost.

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    • Item icon Offers pursuant to the Rules
      Offers to consent Any party may file and serve a Form 121 Formal Offer under r 132.4 by way of:

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    • Item icon Offers pursuant to the principles in Calderbank v Calderbank
      In the exercise of the court’s discretion a Calderbank offer may, be admissible on an argument concerning the costs of the proceedings. A Calderbank offer is an offer made in a letter that carries the following notation: Without prejudice save as to costs. It also contains an offer that is a ...

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    • Item icon Letter to other side with Calderbank offer
    • Item icon Example content - Mediation position paper - Applicant
    • Item icon Consent orders
      When the parties settle after proceedings have been commenced, consent orders will have to be entered to dispose of the proceedings. All parties to the action must consent, including any third party, where consent orders are made. Ensure the orders are precise as to what the settlement is, ...

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    • Item icon Court forms - Link to Courts SA
    • Folder icon Library of example consent orders
      • Item icon Clause - Consent orders for acceptance of lesser sum
      • Item icon Clause - Consent orders for judgment notation of agreement
      • Item icon Clause - Consent orders for proceedings to be dismissed with no order as to costs
      • Item icon Clause - Consent orders judgment in favour of one party
      • Item icon Clause - Consent orders payment inclusive of costs
    • Item icon Notice of discontinuance
    • Item icon Example deed of release - Settlement of proceedings
    • Item icon Irrevocable authority
    • Item icon Undertaking for purpose of court approval of settlement
    • Item icon Formal offer
    • Item icon Withdrawal of formal offer
    • Item icon Response to formal offer
  • Folder icon C. Going to court
    • Item icon Overview of the process
      The usual steps for an applicant in a liquidated claim for an amount over $12,000 are:

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    • Item icon Initial considerations
      Jurisdiction Before commencing proceedings, ensure the Magistrates Court has jurisdiction to hear the claim. This is a fundamental but important consideration.

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    • Item icon CourtSA
      The CourtSA online portal is used to file documents and case management. Practitioners need to register to use it. Registration for the online web portal is a simple process via the CourtSA website. The website also has demonstrations and further details on using the online portal. Many prescribed ...

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    • Item icon Remote appearances
      Rule 15.4 allows the court to direct or permit a party, lawyer, or witness to appear by audio or audio-visual link, if the court considers it is justified in the circumstances. This requires:

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  • Folder icon D. Pleadings, filing, and service
    • Item icon Statutory actions
      Chapter 22 of the Uniform Civil Rules 2020 provides for proceedings that may be brought in the Magistrates Court under the following Acts:

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    • Item icon Claims and originating applications
      To recover money or damages – for breach of contract, for example – commence proceedings by filing a claim in the court. The prescribed forms for originating process are listed in Part 2 of Schedule 7 to the rules. Most claims will be filed via a Form 1 Claim or Form 1S ...

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    • Item icon Duration of validity of claims and originating applications
      A claim is only valid for service for six months: r 64.1(1). If no application for an extension of time, defence or default judgment is filed within the six months, the registrar will give notice to an applicant that a proceeding will be entered into the list of inactive cases. If no action is ...

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    • Item icon Final notice
    • Item icon Claim
    • Item icon Statement of claim uploaded with claim
    • Item icon Originating Application
    • Item icon Affidavit
    • Item icon Exhibit front sheet to affidavit or statutory declaration
    • Item icon Multilingual Notice - Claim Multiple Languages
    • Item icon Multilingual Notice - Originating Application Multiple Languages
    • Folder icon Library of claim pleadings
      • Item icon Clause - Claim pleading against company debtor director guarantor
      • Item icon Clause - Claim pleading for goods sold and delivered
      • Item icon Clause - Claim pleading misrepresentation s 18 Part 2.1 Chapter 2 Schedule 2 Competition and Consumer Act 2010
      • Item icon Clause - Claim pleading money lent
      • Item icon Clause - Claim pleading money paid under a mistake of fact
      • Item icon Clause - Claim pleading debt recovery solicitor's costs
    • Folder icon If required - Parties
      • Item icon Affidavit
      • Item icon Clause - Affidavit by director authority to commence proceedings
      • Item icon Clause - Affidavit of consent to be joined as an applicant
    • Item icon Service
      Once a sealed copy of the claim including any statement of claim, or an originating application including the affidavit, is received from the court registry, it must be served on each respondent, together with any other prescribed document. A Multilingual Notice per rr 63.3 and 82.3 is always ...

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    • Item icon Letter instructing process server
    • Item icon Letter serving process at registered office of a company
    • Folder icon If required - Service out of South Australia
      • Item icon Service out of South Australia
        In the case of service within Australia, but not in South Australia, service is to be effected in accordance with the Service and Execution of Process Act 1992 (Cth) and in particular the need to provide a Form 1 as found in the Service and Execution of Process Act Regulations 2018 (Cth). This ...

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      • Item icon Service out of Australia
        Subject to a limited exception for New Zealand, special considerations apply when seeking to serve an originating process out of Australia. The Rules treat the Magistrates Court as no different from the other state courts in this respect. An originating process may be served without leave if the ...

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      • Item icon Interlocutory Application
      • Item icon Affidavit
    • Folder icon If required - Substituted service
      • Item icon Interlocutory Application
      • Item icon Example content - Application - Substituted service
      • Item icon Affidavit
      • Item icon Clause - Affidavit by applicant in support of substituted service
      • Item icon Clause - Affidavit by solicitor in support of substituted service
      • Folder icon If required - Notice of acting and discontinuance
        • Item icon Commencing or ceasing to act while a claim is on foot
          Practitioners are required to file a Form 23 Notice of Acting, as soon as practicable after acceptance of the retainer. However they will be regarded as representing a party in a proceeding from the first time they file a document in the law firm’s name: r 25.2(1) and (4). The law firm must ...

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        • Item icon Notice of Acting
        • Item icon Notice of discontinuance
        • Item icon Notice of cessation of acting
    • Folder icon If required - Default judgment
      • Item icon Entry of default judgment
        An applicant can request judgment in default of defence using Form 76B Application to Registrar – Sign Judgment: r 142.2. This can only be requested where a claim is validly served and no defence is entered within 28 days of service, or any other time fixed by the court has expired. ...

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      • Item icon Letter to respondent warning of entry of default judgment
      • Item icon Court forms - Link to Courts SA
    • Item icon The defence or response
      It is essential to assess a defence to a claim, or a response to an originating application if one is made. Often the defence or response will not address substantive issues. When acting for the applicant in a claim the practitioner needs to assess a defence and consider the need to file a reply.

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    • Item icon Better particulars
      Where the claim, crossclaim or defence does not plead all material facts and matters founding the cause of action, it is open to a party to request further and better particulars by notice in writing: r 70.1. A request for better particulars relating to the factual basis of the claim are not a ...

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    • Item icon Example content - Request for better particulars
    • Item icon Interlocutory Application
    • Item icon Reply
      An applicant does not have to file a reply in the Magistrates Court general jurisdiction. There is no provision for an applicant to file a reply in a minor civil action: r 334.5.

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    • Item icon Reply
    • Item icon Cross claims and set-offs
      A respondent is entitled to bring any counter claim and/or set-off against the applicant or to bring a third party claim or claim for contribution against third parties or other respondents. Counter claims, third party claims and contribution claims are all defined as a cross claim in the Rules and ...

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    • Item icon Defending a cross claim or set-off
      A defence to a cross claim, other than in minor civil matters, must be filed within 28 days and comply with the general rules about pleadings: r 65.7. Failure to file a defence can result in a default judgment: r 142.2(1). If the cross claim was conditional on the applicant being first ...

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    • Folder icon If required - Defending counterclaim and third party claims
      • Item icon Example content - Defence to cross claim
      • Item icon Affidavit
      • Item icon Letter to respondent's solicitor serving defence to cross claim
      • Item icon Letter serving process at registered office of a company
      • Item icon Letter instructing process server
      • Item icon Interlocutory Application
    • Item icon Summary judgment, stay or dismissal and strike out
      The court may order that the whole or part of a pleading or originating application be struck out or amended if:

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    • Folder icon If required - Summary dispositions
      • Item icon Application to registrar
      • Item icon Affidavit
      • Item icon Clause - Affidavit in support - Summary judgment - Applicant
  • Folder icon E. Pre-trial processes
    • Item icon Discovery
      Discovery is the identification, listing and production of documents for inspection by the parties to proceedings. It is supposed to take place before the initial directions hearing. Unless an order is made under r 86.4(2)(b), formal discovery would not ordinarily occur for originating ...

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    • Folder icon If required - Discovery
      • Item icon Court forms - Link to Courts SA
      • Item icon List of documents
      • Item icon List of documents consolidated - Simple electronic protocol
      • Item icon Example content - List of documents
      • Item icon Affidavit
    • Item icon Initial directions hearings/first return date
      Minor civil actions When a defence is filed in a minor civil action the file must be referred to a magistrate or judicial registrar who will deal with the action under r 337.1. The action might be listed for a directions hearing before a judicial registrar, registrar or magistrate or it may be ...

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    • Item icon Court-appointed alternative dispute resolution
      The court may, at any time, order the parties to attend a settlement conference presided over by a judicial or non-judicial officer of the court under r 131.2, or mediation before a judicial or nonjudicial officer, or an external mediation under r 131.3 and s 27 of the Magistrates ...

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    • Item icon Participating in mediation
      Mediation is often an effective means of resolving a dispute, and practitioners have a duty to inform their clients about it. The court also has a general power to refer a matter to mediation under to s 27 Magistrates Court Act 1991. The mediator may be the magistrate, a judicial registrar or ...

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    • Item icon Expert appraisal
      In a minor civil matter, once a defence or originating application is filed, the registrar will refer the file to a magistrate to determine whether, among other things, the matter should be listed for expert appraisal rather than a directions hearing or mediation: r 337.1. The Rules do not ...

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    • Item icon Judgment in default of appearance
      The Rules provide that where a party fails to attend within 15 minutes of the time fixed for trial including minor civil matters the court may order default judgment against the non-appearing party without hearing any evidence. See rr 145.1-3, 339.1 and 340.1.

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  • Folder icon F. Interlocutory applications
    • Item icon Interlocutory applications
      Rule 102.1 provides a broad discretion of the parties to make interlocutory applications to the court in matters that are not minor civil actions. The Rules give examples of interlocutory applications that are likely to be permitted, or are not likely to be permitted, to be made orally: see ...

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    • Folder icon Security for costs and freezing orders
      • Item icon Security for costs and freezing orders
        Security for costs is ordered to protect respondents from prosecution of unsuccessful proceedings by applicants or counterclaimants. However, orders for security for costs are not available against all applicants and are always at the courts discretion: r 115.1. See Cosenza v Gill [2018] SASC ...

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      • Item icon Interlocutory Application
      • Item icon Affidavit
    • Folder icon Interrogatories
      • Item icon Interrogatories
        In any proceeding which is not a minor civil claim, any party may, with leave, serve on any other party, interrogatories relating to any question between them in the proceeding: see r 117.5 and r 117.6(3)(a). Interrogatories are administered to elicit relevant admissions in the ...

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      • Item icon Interlocutory Application
      • Item icon Affidavit
      • Item icon Example content - Interrogatories to the respondent
      • Item icon Example content - Applicant's answers to respondent's interrogatories
    • Folder icon Other applications
      • Item icon Interlocutory Application
      • Item icon Affidavit
  • Folder icon G. Trial and preparing for trial
    • Item icon Listing for trial and pre-trial directions hearing
      Matters that are not minor civil actions If the matter does not resolve it is likely to be listed for a hearing to obtain a trial date under r 151.9. Parties’ legal representatives are expected to attend with information about the estimated length of the trial, the availability of witnesses, ...

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    • Item icon Trial Plan - Link to CourtsSA
    • Item icon Brief to counsel - Civil
    • Item icon Example content - Brief to counsel - Civil
    • Item icon Evidence generally
      Evidence on hearing of a claim is generally given orally on oath or by affirmation. However r 154.7-12 makes provision for the Magistrates Court to direct the manner and form in which evidence is given. In general, the Magistrates Court has the discretion to make orders about:

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    • Item icon Affidavit
    • Folder icon If required - Witness
      • Item icon Expert witnesses
        A good expert witness can add significant weight to the client’s claim. There are no specific rules concerning expert witnesses for originating applications. The correct procedure is to be followed as per Chapter 7, Part 14, especially the giving of the undertaking by the expert under ...

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      • Item icon Letter instructing expert witness - Applicant
      • Item icon Letter instructing single expert witness
      • Item icon Affidavit
      • Item icon Clause - Affidavit of expert witness annexing report
      • Item icon Letter to other side serving expert report
      • Item icon Clause - Affidavit of assessor
      • Item icon Clause - Affidavit of repairer
      • Item icon Subpoena to attend to give evidence (Mag Court)
      • Item icon Schedule of medical and expert reports
      • Item icon Witness subpoenas
        A party can apply to the court for a subpoena to require a person to attend to give evidence in the proceedings or to produce documents or things: r 156.2(1). The subpoena must be served five days clear of the date fixed for attendance, subject to any court order: r 156.3(8). A subpoena ...

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    • Item icon Notices to admit
      Any party may by notice in writing to any other party, request that the other party admit facts or admit the authenticity, relevance or admissibility of a document: r 117.1(1). Failure to answer a notice to admit within 14 days of its service can result in the assertions in the document ...

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    • Item icon Tender book
      A tender book is an indexed collection of documents that the parties rely on during the hearing. A tender book ordinarily includes all originating processes, pleadings and evidence, and leaves out any irrelevant documents, even if they were discovered in the proceedings. See r 154.3 of the ...

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    • Item icon Tender book cover page
    • Item icon Tender book index
    • Item icon Trial
      Trials for matters that are not minor civil actions proceed the same as any civil trial in the District or Supreme Court. However, if an Act confers a jurisdiction on the court in its Civil (Consumer and Business) Division to sit with assessors, and the magistrate does so, then the magistrate will ...

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  • Folder icon H. Costs
    • Item icon Cost orders
      Costs will usually follow the event. However, in the Magistrates Court, costs are assessed based on a percentage of the judgment sum for applicants or the total amount claimed for respondents. The costs scale applicable in the general jurisdiction is Part 3, Schedule 6. For minor civil ...

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  • Folder icon I. Appeals to the Supreme Court
    • Item icon Appeals to the Supreme Court
      Parties to all civil actions, other than minor civil actions, have a general right to appeal any judgment in the Magistrates Court action to the Supreme Court: s 40 Magistrates Court Act 1991. Appeals are to a single judge unless a judge refers the matter to the Court of Appeal. Leave will be ...

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    • Item icon Notice of Appeal
    • Item icon Information sheet - setting down appeal or case stated for hearing
    • Item icon Appeal grounds
    • Item icon Cross appeal grounds
  • Folder icon J. Reviews by the District Court
    • Item icon Review by the District Court
      The District Court, constituted of a single Judge, may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter: s 38(6) Magistrates Court Act 1991. Like an appeal, a review is also instituted under r 214.2. It is conducted under ...

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    • Item icon Notice of Review - Minor Civil Action
    • Item icon Review grounds
    • Item icon Cross review grounds
  • Folder icon K. Finalising the matter
    • Item icon Letter to client finalising the matter
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