Chapter 9: The Local Court of NSW
9.1 The Local Court of NSW
The Local Court of NSW has registries at around 150 locations statewide and hears the vast majority of minor criminal and civil matters. The Local Court has a range of streamlined practices and procedures to ensure quick and efficient resolution of matters.
The Local Court deals with debt matters of up to $100,000, with the actual size of the claim determining which division will manage it. There are two civil divisions:
- The Small Claims Division — straightforward claims, up to $20,000, are heard in this division. The Small Claims Division has specific procedures in place to ensure just, quick and cheap resolution of disputes. Many people self-represent in this division, and claims are usually resolved within six months.
- The General Division — claims between $20,000 to $100,000, and complex/significant cases involving lesser amounts, are managed in this division. The General Division is more formal and legalistic than the Small Claims Division, and it can be harder to self-represent.
Chapter 11 Small Claims Division and Chapter 12 General Division offer more specific information about each of these divisions.
The NSW District and Supreme Courts deal with debts greater than $100,000. If your matter is before one of these courts, we firmly urge you to obtain legal advice and representation.
9.2 Who’s who in the Local Court
If you are going to successfully self-represent in the Local Court, you must become familiar with the court’s key players, processes and terms.
Registry staff
Registry staff keep the court running smoothly. They can also provide you with useful information about correct forms, processes and procedures, fees for filing documents and applicable interest rates. Counter and registry staff cannot give legal advice, but they should be able to refer you to free legal advice services in your area. You can contact them by telephone or at the registry counter inside the courthouse.
Chamber service
Many NSW Local Court registries employ a registrar or deputy registrar to give information, practical help, and guidance to members of the public (chamber service). This service may be able to help you prepare court documents including applications to start proceedings, defences, notices of motion and so on. Registrars cannot, however, give legal advice or information about legal defences to a claim. Contact your Local Court to check if they run a chamber service.
Creditor (plaintiff)
A creditor is a person or organisation who starts a court action to recover a debt. Once the court action has started, the creditor becomes known as the ‘plaintiff’. If the plaintiff is successful in their claim, a ‘judgment’ is entered in their favour, and the creditor/plaintiff becomes the ‘judgment creditor’.
Debtor (defendant)
A debtor is a person who owes (or allegedly owes) money to a creditor. If you are reading this guide, this is probably you. Once a court action starts, the debtor becomes known as the defendant, because they are ‘defending’ a claim brought by the plaintiff. If the plaintiff’s claim is successful, the debtor/ defendant becomes the ‘judgment debtor’.
Judgment
A judgment is a formal decision, made by the magistrate, assessor, or arbitrator. In debt-related matters, the judgment sets out the exact amount owed, who has to pay and when they have to pay. Judgments are legally enforceable, which means that the judgment creditor can enforce payment, using formal court processes. Chapter 13 of this guide deals with ‘Judgment’, while Chapters 14 and 15 offer further information about ‘Enforcement’ and how to stop it.
Judgment debt
The judgment debt is the total amount of money that you must pay. A judgment debt may also include an amount of compensation, solicitor’s costs, disbursements, witness expenses and interest. You should also remember that future credit reports will include information about judgment debts entered against you.
Registrar
Registrars routinely deal with the early, or preliminary, stages of the hearing process, including the pre-trial review and call-overs. In court, you should refer to them as ‘Registrar’ (not Your Honour).
Assessor
There are a small number of assessors employed by the NSW Local Court who can be appointed to manage matters in the Small Claims Division. If your case is assigned to an assessor, they will manage the preliminary stages and may also hear and enter judgment.
Arbitrator
Arbitrators are legally trained people, often barristers. General Division matters may be referred to arbitrators who can decide cases instead of magistrates. If you are unhappy with an arbitrator’s decision, you have 28 days to appeal.
Magistrate
Magistrates are the principal judicial officers responsible for conducting hearings and making decisions in the Local Court. When your matter is before the court, you should refer to the magistrate as ‘Your Honour’.
Sheriff
Many Local Court registries have a NSW Sheriff’s Office. Sheriffs help with court support and security and can also be engaged to serve court documents and help enforce judgment debts. If you do not pay a judgment debt, it will be the sheriff who knocks on your door to take and sell your valuable household property to help pay the amount you owe.
9.3 Common court forms
If you’re going to self-represent in the Local Court, you will need to prepare, file and serve various court documents or forms. There are strict rules about which documents need to be filed and when (see 9.7 below). The Local Court uses a set of standard forms, under the Uniform Civil Procedure Rules 2005 (NSW). In this guide, we refer to them as UCPR Forms. You must always use the most up-to-date version of a given form, which can be found on the UCPR or Local Court websites.
There are some common form types that debtors are likely to come across. These include:
- Statement of claim (UCPR Form 3A or 3B) — this is the form that initiates proceedings and sets out the plaintiff’s claim against you.
- Defence (UCPR Form 7A or 7B) — this is the form that indicates to the court that a defendant wishes to ‘defend’ their matter and have the court hear and decide the case.
- Notice of motion (UCPR Form 20) — this is a general form used to make various applications to the court. Essentially, it is a form seeking specific orders from the court (for example, a notice of motion seeking a change of venue). This form must be accompanied by an affidavit, which sets out your ‘evidence’ in support of your application.
- Affidavit (UCPR Form 40) — this is essentially a formal statement of evidence, which is sworn or attested to and witnessed by either a Justice of the Peace or lawyer. Affidavits must abide by the rules of evidence (see 12.6 in Chapter 12 General Division).
- Notice of motion to pay by instalments (UCPR Form 46) — an application to pay off your debt by instalments.
- Consent judgment (UCPR Form 44) — an application for your settlement agreement to be entered as consent orders (which will make your agreement legally binding and enforceable).
There is a range of other forms, for different application types. This guide provides information about typical forms but if in doubt talk to registry staff.
9.4 Filing court documents
In NSW, a creditor/plaintiff will start Local Court action with a formal court document called a ‘statement of claim’. This document is filed in the court and then served on the intended debtor/defendant. ‘Filing’ means lodging a form (and copies) with a court, and ‘service’ means formally giving a sealed (court-stamped) copy of the same form to the other party/ parties. Everything in the NSW Local Court happens by filing/ serving the correct court forms within proper time frames.
Court forms and procedures in NSW have been standardised by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). When preparing your court documents, you must use a current version of the correct form type. There are different forms for different application types, and we explain these in more detail in the chapters to follow.
The Local Court website includes links to common UCPR Forms, but you can access all UCPR Forms via the official UCPR website. If you want to file online, you can also find direct links to relevant forms on the NSW Online Registry. If you need paper copies, talk to registry staff. We also include some sample forms in Chapter 18 of this guide. You should be aware, however, that these samples are only a guide and you will need to tailor your documents to your particular circumstances.
Most forms that you will rely on in your case must be ‘filed’ with the court of origin by taking or sending the documents to the court at which the plaintiff began the action. The front page of a statement of claim will show the court registry where filing occurred. Some forms can be completed via the NSW Online Registry, but if in doubt talk to local court registry staff.
You should prepare three copies of each form for filing (if filing paper forms) — one for the court’s records, one for the other party and one for you. The court will stamp, date and enter court numbers when they receive your forms.
Filing fees will apply to lodgement of some, but not all, form types. If a matter goes all the way to a hearing, the losing party will usually have to repay the other party’s filing fees. Notably, filing a defence does not incur a fee. The NSW Local Court website has information about current fees.
You can find out which forms you need to file by talking to registry staff, reading this guide, using the LawAccess website, or getting free legal advice.
9.5 Service of court documents
Generally, each party must serve a copy of their forms/ documents on the other party/parties involved in the matter. Service is a crucial step in the court process, and a failure in service may entitle the other party to have orders set aside. See What is proper service?
Different form types may have different service requirements, for example:
- a party filing a statement of claim is also responsible for personally serving the document on the other party/parties
- documents filed in defence or response to an action may be automatically sent to the other party by the court registry
- documents filed online, regardless of type, must be served by the person filing (the court will not do it for you).
If you are self-representing, it is best to talk to court registry staff when filing any documents, to clarify service requirements.
What is proper service?
The form that starts proceedings (statement of claim) must be ‘personally’ served on the other party/parties named in the application. Personal service ensures that all parties are aware of the claim and have the chance to defend themselves. Proper service can include:
- Personal delivery to the intended recipient — handing it to the recipient, or leaving it in their presence, and explaining what it is.
- Leaving it with a person who appears to be over 16 and living at the recipient’s address.
- Personal delivery to an employee, who is over 16, and working at the recipient’s place of business (if the intended recipient runs the business).
- Mail delivery by the court registry — documents are sent to the recipient’s last known business or residential address, in a plain envelope marked with a de-identified return address. If the mail is returned, another attempt at service is required. The court charges a fee for each attempt at service.
Anyone over 16 can serve court documents, but you can also pay professionals to do it for you:
- Sheriff’s Office — sheriffs can arrange for service anywhere in NSW, but only work Monday to Friday during office hours. They currently charge $69 for each document served, or service attempt.
- Process servers — many private organisations will serve documents for you. Fees can vary so check how much it will cost you. The advantage is that they will often serve documents on weekends and at night when it’s easier to find people at home.
- Debt collection agency — some debt collection agencies will arrange service of documents themselves.
Affidavit of service
After service of a statement of claim, the person who served the documents must complete an ‘Affidavit of service’ (UCPR Form 41). The server must sign the affidavit, and their signature must be witnessed by a Justice of the Peace (JP) or lawyer. The affidavit confirms:
- details of the relevant court and application
- the server’s name, address, and that they are over 16
- how and when the document was served
- what the recipient said/did at the time of service.
If you pay a professional organisation to serve documents for you (Sheriff’s Office or a process server), they will complete the affidavit of service for you.
What is substituted service?
If genuine attempts at service fail, due to the inability to find the respondent or evasion, a plaintiff can seek orders for ‘substituted service’. Substituted service may, for example, allow for service upon a relative, or via a social media platform.
In these circumstances, the plaintiff prepares a statement of facts (affidavit), setting out what reasonable attempts they have made to serve you and why they think proper service is impractical. The court can then make orders for ‘substituted service’, which may include:
- placing an advertisement in a local paper
- serving a sealed copy on a relative or co-worker to pass on to you
- letting you know through social media.
After the plaintiff follows the court’s orders for substituted service, the matter can go ahead in the usual manner (even in cases where you do not get the documents). If someone is trying to serve you with court documents, it is best to accept service, so you know what is going on and can properly consider your options.
Checking your court file
Where you are a party to proceedings, you can ask for permission to look at your court file. Reviewing your file is particularly important where orders are made against you in your absence. The court file should contain a record of everything that has happened in your matter. Look through the file to determine:
- What is the claim being made against you?
- Has proper service taken place?
- Is there an affidavit of service on file?
- Has substituted service taken place? If so, is there an affidavit setting out grounds for the need for substituted service? Do these grounds appear reasonable?
If the answer to any of these questions is ‘no’, you may have reasonable grounds to set aside the judgment and have the matter re-heard. Talk to registry staff about file access.
9.6 Practical court tips
Getting ready
Being prepared is vital, so you should do your research well in advance of your court date. Get free legal advice, read this book, and ask questions of court staff where you need help understanding forms, processes and procedures. Be clear about your arguments and make sure you gather as much evidence as you can to support your version of events. Also think about the other party’s arguments and how you might disprove them. Be prepared to speak before the court — practice at home if you think it will help or make notes. Remember to bring paper and pens on the day so you can make notes as you go. If you need an interpreter, arrange this in advance (the court will not automatically provide one), or bring a support person along with you. If you’re nervous about your appearance, you might consider attending the court before your listed hearing date, just to see how the courtroom operates. Understanding the court process will make things seem less intimidating.
What to wear
There are no formal rules about what you should wear in court. However, the court is a formal setting and your clothes should reflect this. Dressing formally will demonstrate your respect for the court and the judicial process.
Attending court
Whenever attending court, you should remember the following courtroom etiquette:
- be respectful in all interactions with court staff and judicial officers
- refer to the magistrate as ‘Your Honour’, the registrar as ‘Registrar’ and the other party as ‘the plaintiff’ (assuming you’re the defendant)
- bow when you enter and leave the court
- if the court is adjourning or re-commencing, everyone in the courtroom must stand (the court will usually break for morning tea at 11.30 am and lunch at 1.00 pm)
- do not talk in the courtroom unless you have permission
- turn off your phone inside the courtroom
- do not use your phone or take photos in court.
On the day of your hearing:
- be prepared
- plan to get to court at least 30 minutes before your matter is listed —there may be a long list of matters just like yours, so be prepared to wait patiently
- find your courtroom (look for your name on the ‘civil list(s)’ near the entrance)
- wait inside or near your courtroom and listen out for your matter. When called, move to the table/chairs (bar table) at the front of the court, and be ready to talk about your case
- if you don’t attend when your matter is called your defence could be ‘struck out’, and the plaintiff will be able to seek judgment against you without a hearing
- when you are talking to the court officer, stand and speak from the bar table
- have a copy of all your relevant documents, as well as notes of witnesses and evidence you have or need
- have a pen and paper with you so that you can make notes
- ask questions if you don’t understand something.
Change of details
If your contact details change during a court case, it’s essential to update the court with your new details. If you don’t, you might miss important notifications about your case, and the court may make decisions in your absence. If you change your name, phone number or mailing address, you should complete a notice of change of address for service (UCPR Form 76). This form will need to be filed with the court registry and served on the other party.
9.7 Practice, procedure and law
Court practices and procedures
Court practices and procedures are shaped by the legislation, rules and regulations that apply to the court, as well as the court’s own specialised practice rules. For example, the Uniform Civil Procedures Rules 2005 (NSW) (UCPR) apply to all NSW courts and provide standardised forms and processes. Matters run in the NSW Local Court are also subject to the Local Court Act 2007 (NSW) and related rules and regulations. In addition to this, the Local Court develops its own specialised rules to manage different types of matters. These are referred to as ‘practice notes’ and are available on the court’s website.
As a start, we suggest you read Local Court Practice Note Civ 1 (which deals with case management of civil proceedings in the NSW Local Court).
Uniform Civil Procedure Rules (UCPR) Forms
At the time of writing, the Local Court uses a selection of standardised UCPR Forms. So, a reference to ‘Form 41’ in this guide is a reference to UCPR Form 41 — Affidavit of service. These forms are regularly updated. The UCPR website has up-to-date copies of all UCPR Forms.
Understanding the law
Where a matter goes to a hearing, the court’s actual decision will depend on how the relevant laws apply to the facts in your case. To successfully run a matter in the Local Court, you will need a working understanding of court processes and procedures, as well as an understanding of the law that relates to your debt type. For example, if your debt relates to a contract, and you dispute the terms of the contract, then you should find out more about contract law and how it might apply to your case. A good starting point is to find the part of this book that relates to your debt type.
9.8 Time limits
Time is of the essence in legal matters. If you snooze, you lose! The time limits outlined in this book are current at the date of publication, but the law is continually changing, so it is essential to check time limits at the time of reading.
Commencing court action
A creditor has six years to start a court action against a debtor. This period starts from the last of any of the following:
- the date the debt became payable
- the date of the last repayment
- the date the debtor last acknowledged the debt.
Claims older than six years are statute-barred, which means a creditor does not have the right to enforce the debt through the courts. If this applies to you, seek immediate legal advice, as you may have a complete defence to any claim against you.
Responding to a statement of claim
After being served with a statement of claim, you have 28 days, from the date of service, to file a defence. If you fail to file your defence within this time frame, the plaintiff may seek and obtain a default judgment against you. A default judgment is legally binding, and failure to pay may lead to further enforcement action and related cost.
Enforcement of judgment debts
After obtaining a judgment debt, a judgment creditor has 12 years to chase payment. Be careful of this and remember that creditors have long memories. For example, if you’re a young, impoverished, university student when the debt is incurred, a creditor may wait until you are employed before trying to enforce payment. Payment delays will likely lead to additional interest and enforcement costs.
Court dates and filing deadlines
You should always try to stick to court time limits and due dates. If you’re running late, advise the court and the other party of your reasons and ask for additional time to file (this is not guaranteed). Failure to comply with relevant deadlines may result in adverse findings, or inability to rely on specific evidence or arguments etc.