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After the Small Claims Tribunal has received your claim, the registrar will post a copy of your claim and a 'Notice of hearing' to the trader.
The 'Notice of hearing' will include the time and place of the hearing. You, the trader and any witnesses will need to attend the tribunal on this date and at this time.
What if I can't make it on that date?
If you or any of your witnesses can't come to the tribunal on the set date, you should write to the tribunal as soon as possible and ask for another date for the hearing.
If the tribunal agrees with your request, you will be sent another hearing date in the mail.
If the tribunal refuses to set a new date you can:
- provide your evidence to the tribunal in a sworn written statement called an affidavit
- ask the tribunal if you can have someone represent you at the hearing - to do this you need to lodge an 'Application for approval of agent' (Form 12) with the tribunal.
Providing evidence by affidavit
If possible, your witnesses should attend the tribunal in person. If you have a witness who cannot come to the tribunal, you can use a written affidavit to give the tribunal evidence supporting your claim. The tribunal is not obliged to accept evidence by affidavit, but will often do so.
You may need to use an affidavit to provide the tribunal with evidence from someone who can testify on your behalf that the goods or services you bought were faulty or below standard. A sample affidavit from a cabinet maker is included below.
If the affidavit refers to extra documents like a repair quote or receipt, you need to attach a copy (not the originals) of these to the affidavit. Make a note in the affidavit explaining you have attached extra information, for example, "the quote is attached to the affidavit as 'Attachment A' and the receipt is 'Attachment B'".
Write the following information on the back of any extra information you attach to your affidavit:
This is the [document description] referred to as 'Attachment A' in the affidavit of [your name] sworn before me [a justice of the peace] at [address where document was signed] on [date document was signed].
[Signature of person making the affidavit]
[Signature of justice of the peace]
Justice of the Peace
A justice of the peace, commissioner of declarations or a lawyer must witness you signing the affidavit and the copies of the quote, receipt or other documents you attach.
Sample affidavit (PDF - 53k)
What if the hearing took place and I was unable to make it?
If you had a good reason for not being able to make the hearing you can lodge an 'Application for re-hearing' (Form 10) to try to get another hearing date.
You have 28 days from when the tribunal first made its decision to apply for a re-hearing.
If a re-hearing is granted, the tribunal will send you a 'Notification of an order for a re-hearing' (Form 11) with a new time and date.
When a rehearing is granted, the original order made by the tribunal is cancelled.
The referee will re-hear the whole matter and make a new order.
What will the trader do when they find out about my claim?
Once the trader has received their 'Notice of hearing' from the tribunal and a copy of your claim, they might:
- Contact you to try to settle the matter
It is never too late to resolve the dispute. Reaching an agreement may save you and the trader time and inconvenience. If you settle the matter, you have to tell the tribunal immediately and confirm it in writing.
If the trader ignores your claim and does not attend the hearing, the tribunal can make a decision about the dispute in their absence. Even though the trader hasn't come to the tribunal, you will still have to prove your claim - the tribunal will not automatically make a decision in your favour.
If the trader defends the claim, they will come to the hearing and argue against the facts you present.
If the trader is a business or company that wants to defend the claim, then the trader must lodge an 'Application for approval of agent' (Form 12) at the tribunal. This form requests permission to have an individual speak on behalf of the business or company. The person representing the business or company must have personal knowledge of the facts of the case. A representative may, for example, be a director of the company.
Remember, you cannot be represented by a lawyer unless you and the trader agree and the tribunal is satisfied no-one will be disadvantaged by a lawyer being appointed.