18 Feb 2020In NSW, there are two categories of law: civil law and criminal law. Civil law is a system that defines and protects citizen rights. It offers resolutions for legal disputes in areas such as property, contracts and family law. It pretty much deals with every legal matter outside of criminal law.
As a lawyer who practices predominantly in civil law, I’m often asked what the best method is to commence legal proceedings. Thus, I’ve written this brief outline.
Initiating legal action
Under civil law, there are a number of ways to commence legal proceedings. These include issuing a statement of claim, a summons, a notice of motion, or a writ (which is now used for a slightly different purpose than it was originally designed for).
The documents needed to commence legal proceedings can be accessed online.
Determining the right court of jurisdiction for your matter
Before you initiate legal action, you’ll need to research and find out the relevant court of jurisdiction (eg. Local Court, District Court, Supreme Court or specialist court) in which you need to lodge your form.
Once you know which court is relevant for your case, you can visit its website and download the appropriate form.
Monetary value of claim is relevant to choice of court
The court in which your case is heard is usually determined by the monetary amount of your claim and whether the matter relates to federal law or state law.
In a state court matter, if there is a small claim for money (under $100,000), then this will be lodged in the Local Court. However, if the money being claimed is $750,000 or under, this will be lodged in the District Court. Anything over $750,000 will be lodged in the Supreme Court.
Alternatively, if your matter requires a specialist’s review, such as a building dispute, then you’ll need to research the “preferred jurisdiction” to have the matter heard. In a building dispute case, it will be the NSW Civil and Administrative Tribunal (NCAT), although this forum can only hear disputes with a value of up to $500,000 in damages.
Establishing which court division or list your claim should be lodged in
In each court, there are divisions and/or lists in which you will lodge your claim. For instance, if your matter is a small debt collection claim under $20,000, then you would lodge it in the Local Court Small Claims Division.
If the claim is over $20,000, it would need to be lodged in the General Division of the same court. The filing fee will vary depending on the division in which the claim is lodged.
While the Local Court does not always have lists, if you lodge a claim in the District Court or Supreme Court, you will need to identify the relevant list for your legal proceedings. For example, if it is a matter of equity, you file in the equity list. If it is a real property dispute, you would file in the real property list.
Selecting the correct legal document to initiate court proceedings
Once you know which court you need to file in, you can then decipher which legal document you need to initiate the proceedings.
A statement of claim is the most common form used to commence legal proceedings. It sets out the cause of action and includes pleadings of fact as to the cause. The name of this form will differ in each court. For instance, the Supreme Court of NSW uses the Uniform Civil Procedure Rules, which call the form a statement of claim. However, in the Federal Court the form is called an initiating application.
A summons is a document used when the action relates to legal matters, rather than matters of fact. For instance, it would be used in an application to invoke a section of legislation, such as section 66G of the Conveyancing Act 1919, to appoint a trustee for the sale of a co-owned property.
A notice of motion is usually used when initiating proceedings have already been commenced, but a new point or a concern needs to be raised or addressed within those original proceedings.
Lastly, a writ is used after proceedings, ordering a person or entity either to perform or to cease performing a specified action. Previously used before a statement of claim was filed, a writ could now, for instance, be used where a plaintiff receives a judgement in their favour and the judgement needs to be enforced by way of writ for levy of property, which in turn is enforced by the sheriff.
Before initiating legal action seek legal advice pertaining to your particular case
While this article gives you a broad overview of how to commence legal proceedings in NSW, it’s important that you seek legal advice prior to taking any action. A civil law specialist will be able to provide you with reliable advice regarding your claim to ensure the best outcome possible.
For more information, please see also our article How do you make a small claim in NSW?
