An Introduction to the Magistrates Court of Victoria

The Victorian justice system is mainly comprised of the following 3 courts and a tribunal:

• The Victoria Civil and Administrative Tribunal (otherwise known as ‘VCAT’);
• The Magistrates Court of Victoria;
• The County Court of Victoria; and
• The Supreme Court of Victoria.

In today’s article, we examine how to identify common disputes, such as fencing disputes, debt disputes and other contractual or property damage related claims that can be commenced within the Magistrates’ Court of Victoria, as well as how to effectively and cost-efficiently resolve these types of disputes.

The Magistrates’ Court of Victoria: Jurisdiction

Every court or tribunal in Australia (Including Victoria), has what is called a ‘jurisdiction’. A jurisdiction can be understood as the collectively ‘power or authority’ of a particular court to hear and determine certain types of claims. Only the Supreme Court of each State and Territory has an ‘inherent’ jurisdiction, and jurisdictions can be further divided into original jurisdiction, appellate jurisdiction, review jurisdiction, geographical jurisdiction.

Nevertheless, the purpose of this article is not to confuse you with an in-depth dive into the myriad types of jurisdictions, it is to understand what the jurisdiction of the Magistrates Court of Victoria, is.

The Magistrates Court of Victoria is a creature of statute, established by the Magistrates’ Court Act 1989 (the Magistrates’ Court Act)(although it has existed in various forms since about the 1830’s). This means that it exists because of an act of parliament, and thus it only has, subject to some very limited exceptions, the subject-matter jurisdiction that parliament has provided to it.

Section 100 of the Magistrates’ Court Act sets out the extent of the Magistrates’ Court’s civil jurisdiction, it provides, relevantly, as follows:

The Court has jurisdiction, subject to subsection (2)—

(a) to hear and determine any cause of action for damages or a debt or a liquidated demand if the amount claimed is within the jurisdictional limit; and

(b) to hear and determine any claim for equitable relief if the value of the relief sought is within the jurisdictional limit; and

(c)to hear and determine, with the consent in writing of the parties—

      (i)any cause of action for damages or a debt or a liquidated demand, irrespective of the           amount claimed; and

    (ii) any claim for equitable relief, irrespective of the value of the relief sought; and

(ca) to hear and determine applications made under section 57B of the Victorian Civil and Administrative Tribunal Act 1998; and

(d) to hear and determine any other cause of action if the Court is given  jurisdiction to do so by or under any Act other than this Act.

The jurisdiction in relation to the above is subject to various limitations set out in subsection 100(2), and the limitation of the jurisdictional limit.

What is the jurisdictional limit?

A jurisdictional limit, often referred to as the ‘monetary threshold’ is the amount of damages (whether liquidated or unliquidated) which the court can award. This amount is usually exclusive of costs and interests, and in the Magistrates Court of Victoria, the jurisdictional limit is $100,000.00 (section 3, Magistrates Court Act).

Accordingly, if the damages, debt or award of damages (subject to certain exceptions) claimed is less than $100,000.00, the Magistrates Court is likely to be the appropriate court to commence the proceedings in. However, if the claim is more than $100,000.00, or likely to be more than $100,000.00, it is likely the claim should be commenced in the County Court of Victoria.

Common types of claims 

Subject to the amount of damages claimed or sought by the plaintiff, and other limitations of the Magistrates Court of Victoria provided under the Magistrates Court Act, the Magistrates Court of Victoria can hear, and commonly does hear and resolve the following types of disputes:

• debt recovery disputes (being a form of breach of contract);
• general breach of contract;
• negligence claims
• certain building disputes;
• property damage claims

Limitation periods

In most cases, such as most negligence and breach of contract claims, the claim must be commenced within 6 years from the date that the claim accrued (section 5, Limitation of Actions Act 1958 (Vic)).

Small Claims division

The Magistrates Court of Victoria does not have a small claims division like certain other jurisdictions (take for example, minor case claims in Western Australia, for claims under $10,000.00).

However, the Magistrates Court of Victoria can refer a matter to arbitration, a more informal process that is not required to comply with a range of procedural and formal court requirements, if the claim is for a claim under $10,000.00.

How to commence a claim 

In most cases, the appropriate form to commence the claim is a form 5A, with a statement of claim that complies with the Magistrates’ Court General Civil Procedure Rules 2020 and which is accompanied by the necessary certificate under the Civil Procedure Act 2010 (Vic).

Statements of Claim, what are they?

A statement of claim is what is called in legalese (that is, legal speak), as a pleading. In essence, it is a concise statement of material facts that set out the basis upon which it is claimed the defendant committed a wrong, or breached the contract, and are therefore liable to the plaintiff.

Statements of claim are generally complex legal documents which require years of training and experience to be prepared properly, and in accordance with the relevant rules. It is therefore always recommended that if you wish to pursue a claim in any court, including the Magistrates Court of Victoria, that the initiating documents, including the statement of claim, are prepared by an appropriately qualified lawyer, as it is the document that sets out the basis of the claim, and from which the admissibility of evidence is likely to be based.

Service of the claim

Once the complaint indorsed with the statement of claim, and the necessary certificates have been filed with the Magistrates Court of Victoria, a court reference number will be issued (and either inserted or stamped). This indicates that the Complaint can now be served, along with 2 blank copies of the Form 8A – Notice of Defence.

The manner and form of service which is necessary is dependent upon the nature of the defendant themselves. In most cases, this is either personal service or postal service.

Representation

If the plaintiff or defendant is a corporation it cannot take any step (other than filing a statement of claim or a defence), other than by a solicitor (Rule 1.17 Magistrates’ Court General Civil Procedure Rules 2020).

It is therefore important that, if you are a company contemplating commencing proceedings in the Magistrates Court of Victoria, that you seek legal representation, as the corporation cannot, unless the rule is dispensed with under the Rules, act by a director or employee (in most circumstances).

What happens after service?

The Magistrates Court General Civil Procedure Rules 2020 require the plaintiff to file an affidavit of service as soon as practicable after service has been effected.

In most cases, the defendant will have 21 days calculated from the day after the day they were served to file a notice of defence and a defence to the statement of claim. If this does not occur, then the plaintiff can apply for default judgment.

Default judgment can have serious consequences, so its important to seek and obtain appropriate legal advice and representation at an earlier stage after received a statement of claim.

What happens after the defence is filed?

Ordinarily, after the defence has been filed with the Court, the defendant will need to serve the defence on the plaintiff, and at this stage, the Court will list the matter for a mention, or a ‘pre-hearing’. This hearings are where the court will make decisions and hear from the parties as to how the matter should be prepared and progressed, with a view to listing the matter for trial.

Alternatively, the Court can consider making other orders, such as referring the matter to mediation (this is a conference where the parties attempt to settle the issues in dispute), or some other alternative dispute resolution process or system.

Conclusion

Civil litigation is never easy, and it is an area of law which requires a detailed understanding of court rules, civil procedure and a variety of torts and types of contracts and rules of evidence. It is therefore highly recommended that any legal proceedings are not commenced without first seeking and obtaining appropriate legal advice tailored to your particular situation and needs.

Whether you are an individual or a business that’s owed money, or has any other type of dispute, Allen Law has years of experience acting in all courts and tribunals throughout Australia. We can easily explain with clarity any aspect of your case and the civil procedure rules which are applicable to your case, to you.

Get in touch today to see how we can help you navigate the civil justice system with fairly, efficiently, and cost effectively.

Phone:             (03) 7020 6563
Email:               enquiries@allenlawyers.com.au
Website:         www.allenlawyers.com.au

Disclaimer: This article is general in nature and does not constitute legal advice. Please contact Allen Law for advice tailored to your particular situation.