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The magistrates court handles claims for amounts up to $150,000. The court has more formal procedures than the Queensland Civil and Administrative Tribunal. For example:
- lawyers are allowed to represent each person involved
- the case will be heard in ‘open court’, which means members of the public can attend
- if you lose your case, the magistrate may order you to pay the other person’s legal costs.
The person who is claiming damages is called the ‘plaintiff’ and the person defending the claim for damages is called the ‘defendant’.
You should get legal advice before you start a claim in the magistrates court.
If you want to make a claim in the magistrates court, see How do I make a claim below.
If you are defending a claim in the magistrates court, read this whole section to make sure you know how the process works and what you have to do.
If you are defending a claim against you, but believe the other person was wholly or partly responsible for the accident, you may be able to lodge a counterclaim.You should get advice from a lawyer before doing this.
How do I make a claim?
Step 1. Prepare the claim documents
You can get the two forms you need to complete from your local magistrates court. They are called Claim and Statement of claim forms. Follow the format of the sample forms in Sample documents and forms. Make sure you have the correct name of the other driver.
You will need the original plus three copies of these forms. Photocopies are acceptable, but you must sign the form before you copy it.
Step 2. Lodge your forms
Take your forms to your local magistrates court. Give three sets of forms to the court’s registry staff and keep one for your own records. Pay the court’s filing fee. The fee depends on how much money you are claiming. The staff will stamp your forms with the official court seal and give your claim a number. They will keep one set of forms and give you back the other two.
Step 3. Notify the other person about your claim
One of the stamped copies of the claim forms must be delivered to the defendant. You can do this yourself, but it is often better to pay a process server (someone who does this for a living) or enforcement officer from the magistrates court to do it for you. The magistrates court registry can tell you where to find a process server or you can look in the Yellow Pages or other business directories.
Ring a few of them to find out what it will cost.
It is important to include on your original claim form the amount it will cost you to hire a process server or enforcement officer.
If you win your case and the magistrate orders the other person to pay costs, you will get this money back.
What happens then?
There are four possibilities for how the other person may respond.
1. They may settle out of court
They may do this by paying your claim directly to you or contacting you to negotiate an agreement. If the court has already set a trial date, you will need to complete a Notice of discontinuance form and file it with the court.
2. They may defend the claim
To do this they will need to prepare and file two forms:
Notice of intention to defend (see Sample documents and forms) and Defence (see Sample documents and forms). They have 28 days from the date they received their copy of your claim forms to file this form with the magistrates court.
After they have filed their defence, they must also serve you with their defence forms.
3. They may lodge a counterclaim
A counterclaim means the other driver holds you responsible for the damage to their car or property and they are going to claim damages from you to recover the cost of repairs. They do this by filing a Notice of intention to defend form and a Defence and counterclaim form (see Sample documents and forms) for their damages.
If you do receive a counterclaim, you must defend yourself by completing an Answer to the counterclaim, filing it with the court and serving it on the defendant within 14 days. The court may not provide a form for this, so use the sample form in Sample documents and forms as a guide. If you receive a counterclaim, you should get legal advice quickly to work out what you should do next.
4. They may not respond
If the other person has not responded to you or the court by 28 days from the time you filed your claim, you can ask for an order called a default judgment. This means the magistrate will make a judgment without hearing evidence from the other person.
To request a default judgment you need to complete these forms and take them to the court:
- Request for default judgment and Affidavit
- Repairer’s affidavit
- Default judgment
- Affidavit of service
(see Sample documents and forms)
The magistrate does not always make a default judgment in favour of the person who has requested it. They still look at the merits of the case before making a decision.
How do I defend a claim made against me?
You know that a claim has been lodged against you in the magistrates court when the other person or a process server serves you with a Claim (see Sample documents and forms) and Statement of claim (see Sample documents and forms). We recommend you get legal advice at this stage to work out how to respond.
There are four possibilities for how you may respond.
1. You may settle out of court
You may decide to pay the claim directly to the other person, or contact them to negotiate an agreement. If this happens, make sure you get the agreement in writing. If the court has already set a trial date, the plaintiff will need to complete a Notice of discontinuance form and file it with the court.
2. You may defend yourself
To do this you need to prepare and file two forms: Notice of intention to defend and Defence (see Sample documents and forms). You have 28 days from the date you receive the copy of the claim forms to file this form with the magistrates court.
Complete the form and make three copies. Photocopies are acceptable, but you must sign the form before you copy it. Take your completed forms to your local magistrates court. Give three sets of forms to the court’s registry staff and keep one for your own records. The staff will stamp your forms with the official court seal. They will keep one set of forms and give you back the other two.
After you have filed your defence, you must also serve the other person with your defence forms. You do this by sending your forms to the plaintiff at the address for service that appears on their claim.
3. You may lodge a counterclaim
If you believe the other person involved in the accident was responsible for some or all of the damage to your vehicle, you can lodge a counterclaim. A counterclaim means you are going to claim damages from the other person to recover the cost of repairs to your vehicle or other property as a result of the accident.
To proceed with a counterclaim, you need to lodge two forms: Notice of intention to defend and Defence and counterclaim (see Sample documents and forms). Take three copies of these forms to the court to be registered and stamped. Photocopies are acceptable, but you must sign the form before you copy it. The court will keep one set of forms and give you back the other two. Send one copy of the stamped forms to the other person and keep one for your own records.
The other person has 14 days to respond to the counterclaim. If they don’t agree with the details of your counterclaim they may send a reply to the court defending the counterclaim. They must also serve this stamped document on you. If you receive an answer to your counterclaim from the other person, and it raises new issues not already covered in your defence, you can consider filing a reply to the answer to the counterclaim.
Obviously by this stage the matter has become quite complex, so we suggest you get legal advice.
4. You may choose not to respond
If you do not respond to the original Claim and Statement of claim within 28 days of these forms being lodged, the plaintiff can ask for an order called a default judgment. This means the magistrate will make a judgment for the full amount of the claim plus costs, without hearing evidence from you.
You will not necessarily be told if the magistrate makes a default judgment. If you think a judgment has been made against you, you should check with the court and get legal advice quickly.
Is there any other way to settle the matter?
Consider mediation. If you can settle the case without going to court you will save yourself a lot of time, energy and possibly money. If you and the other person agree, you can both go to mediation. Alternatively, the magistrates court registrar may refer your case to an alternative dispute resolution program.
See Reaching an agreement for more information about mediation and dispute resolution. If you have any questions, speak to a lawyer before deciding what to do.
What happens if we can’t reach an agreement?
If you can’t reach an agreement, the matter will need to go to trial.
1. Ask to see the documents held by the other person
If you want to see the documents the other person has, you can write to them asking for a list of relevant documents in their possession or under their control. For example, if they are asking for towing costs you can ask for a copy of the receipt of payment. You can also ask to inspect the documents and be provided with copies.
The other person must provide a List of documents (see Sample documents and forms). They normally should provide it within 28 days after the request.
If they refuse to provide you a list of documents, you should get legal advice. It may be possible to apply to the court for an order that makes the other person provide a list of documents.
The other person might also ask you for a list of documents you have. If so, you should complete a List of documents (see Sample documents and forms).
2. Ask the court for a trial date
Once documents have been exchanged you can ask the court for a trial date.
This can be done by writing to the Court Registry.
Some courts may allocate a directions hearing to see where the parties are at and then make directions for the management of the case including setting a trial date.
If you have been given or sent a Notice of trial form you need to send a copy by mail to the defendant as soon as you receive it. If you do not give the defendant enough time, the defendant may ask that the trial date be rescheduled to another date.
You may need to seek legal advice once you are ready to set a trial date.