Chapter 11: Small Claims Division

11.1 What does the Small Claims Division do? 

The Small Claims Division deals with straightforward claims of $20,000 or less, in a cheap, fast and informal manner. This division has unique rules and practices, with key features including: 

  • strict limits on the costs that lawyers can charge — this provides some certainty and caps the legal costs each party may have to pay (see Chapter 13, Judgment, for further information about legal costs) 
  • standard rules of evidence don’t apply — parties who represent themselves can tell their story in their own words, and sworn evidence is not necessary 
  • focus on early settlement — the court actively encourages settlement of matters before hearing 
  • open questioning — the presiding judicial officers (assessors, magistrates, registrars) are free to question the parties about the facts and their evidence as they see fit. 

The court must ensure that the parties get a fair hearing, and that relevant law is applied to the facts at hand. This chapter will help you understand how to represent yourself in a small claims case. 

11.2 Pre-trial review 

What is the pre-trial review? 

If you file a defence disputing a statement of claim, the court will post each party a notice of listing for a pre-trial review. This notice informs parties of the date, time and place of the pre-trial review. 

The pre-trial review is an informal hearing run by a registrar, assessor or magistrate, designed to explore issues in dispute and potential settlement options. If there is no agreement at the pre-trial review, the court will make directions to prepare the matter for final hearing. 

You must attend the pre-trial review. If you are unable to participate in person, you may be able to appear by telephone or audiovisual link (you should contact the court to make these arrangements). If you are unable to attend in person or on the telephone, for example, because you are in hospital, you should notify the court as soon as possible. You should do this in writing and attach supporting documentation, such as a letter from your doctor outlining why you are unable to attend. You should also send a copy of any adjournment request to the plaintiff (or their lawyer if they have one). If you do not attend the pre-trial review and do not notify the court that you are unable to attend, your defence may be ‘struck out’ and judgment entered against you. 

The pre-trial review is usually conducted: 

  • by a registrar, assessor or magistrate 
  • in open court or privately in chambers 
  • orally — no written evidence is necessary at this stage and matters take about 10 to 20 minutes; you are usually required to take your own notes of what happens and the orders made (although some courts will provide the parties with a written report at the end of the pre-trial review) 
  • informally — where parties are self-representing, the judicial officer will talk informally to the parties about the issues in dispute. 

Preparing for the pre-trial review 

Being well prepared for the pre-trial review is vital. The following steps should help you: 

  1. Read through all the documents you already have and make copies to bring to court (including invoices, letter(s) of demand, your responses, the statement of claim, your defence, cross-claims, file notes, relevant documents etc.) 
  2. Think about issues that need clarification or other questions you might have for the plaintiff (write yourself a list of items to address at court). 
  3. Try to collect and prepare all your evidence as early as possible (and make a list of all relevant evidence). 
  4. Think about what other evidence you will need to collect and how long will it take to obtain (consider whether you need to ask the court for more time). 
  5. Will you need witnesses to give statements? In the Small Claims Division of the Local Court, the court usually only accepts written statements from witnesses. If you think a witness needs to attend in person, you will need to seek leave (permission) of the court at the pre-trial review. 
  6. Will you need to issue any subpoenas? If yes, you will need to seek leave at the pre-trial review. 
  7. Consider your settlement options. What is the best outcome? Worst outcome? What offers of settlement are you realistically able to make? 
  8. Check your calendar — are there any dates on which you would be unable to attend a hearing? 
  9. Consider getting legal advice about the strength of your case and realistic settlement options. 
  10. Make sure you know where the courthouse is and how to get there (you don’t want to be running late on the day!). 

What happens at the pre-trial review? 

The pre-trial review is usually the first and only opportunity for you and the other party to get together to try to come to a settlement; to clear up any uncertainties about the case, and to clarify the issues in dispute. For this reason, we recommend that you prepare your case and have a firm idea about the outcome you are seeking before you attend the pre-trial review. You should obtain legal advice to explore your options and to clarify in your mind what you might reasonably ask for or offer. You should also bring a list of unavailable dates, so the court can avoid these if a further hearing date is needed. 

The court will routinely send parties out to discuss the matter or attempt conciliation. During your discussions with the other side and the presiding judicial officer, you should consider the following issues: 

  • Is it possible to settle or agree without continuing to hearing? Think about what your best- and worst-case scenarios are, and what you can reasonably offer to resolve the matter without a hearing. 
  • Should the case be transferred to the General Division? For example, is the matter complex, or is the amount in dispute more than $20,000? 
  • Is an adjournment necessary? For example, do you need more time to locate a witness or file a cross-claim? 
  • Are any issues unclear? If yes, ask questions to clarify. 
  • Do you need any further documents from the other party? If yes, ask for these. 
  • Do you need any witnesses to attend? If yes, you will need to seek permission from the presiding judicial officer, at the pre-trial review. 
  • Are any subpoenas required? If yes, seek permission to issue these (see Subpoenas below). 
  • Is there a need for expert evidence, such as valuation or a survey report? If yes, you should request leave to obtain this evidence (in these cases, the court will usually ask parties to agree to a single, independent, expert). 
  • Are there any facts that are agreed? Agreed facts will help you narrow the issues in dispute and thereby the scope of any final hearing. 
  • Will you need to attend the hearing by telephone? If yes, seek permission at the pre-trial review. 

The primary purpose of the pre-trial review is for both parties to make sure that they understand the detail of the other’s case. The magistrate will, as part of the pre-trial review, set dates for the exchange of evidence. If you are uncertain about any aspect of your opponent’s argument, you should seek further particulars, so that there is no mistake about what they are saying. You may also have to provide additional information about your case. This will also be the last opportunity to make any necessary amendments to pleaded facts in your defence (or statement of cross-claim) and tie down details such as names, dates, places, signatures, or conversations being relied upon in documentary evidence. 

The second purpose of the pre-trial review is to identify what facts the parties agree on and which are in dispute. Disputed facts will define the issues to be decided at the final hearing. The court should help you to identify the issues in dispute and then explore how each party intends to prove their view of each issue. 

Case study — defining and narrowing the issues

Jessica lodged a statement of claim against Luca, alleging that he owed her $5600 for selling her property without her consent after she left their previous share house. Luca filed a defence, claiming he had no recollection of any items being left at the house when Jessica moved out six months earlier. At the pre-trial review, the registrar asked Jessica to itemise her claim (list all the things she was claiming), as she had not done so in her statement of claim. Once clarified, Luca agreed that a few of the items (a microwave, TV, vase and small bookcase) were still at the house and that he was happy to return them. 

Jessica claimed that Luca sold the other items without giving her proper notice (a laptop, painting, and various items of jewellery — totalling $4600). Luca flatly denied the balance of Jessica’s claim, but offered her $100 and return of the items still in the house, as full settlement. Jessica made a counteroffer of $3500, which Luca refused. Given that there was no prospect of settlement, the registrar discussed preparation for the hearing. Luca said he would like to bring a witness to the hearing. The registrar determined that this would not be necessary, in the circumstances, and that a written witness statement would be sufficient. The registrar gave directions for the filing and service of evidence, in preparation for the final hearing. Both parties agreed that the amount in dispute at the hearing was only $4600 (for the laptop, painting and jewellery), as Luca agreed to return the items still in his possession. 

What happens next? 

If the matter does not settle, the court will usually make case management orders to prepare for final hearing. The parties will also need to complete the Pre-Trial Review Sheet (Annexure D to Local Court Practice Note Civ 1), which is filed in court at the pre-trial review. This form contains a summary of individual cases and a list of documentary evidence that will be relied on at the hearing. If the parties are self-represented, the court officer will usually complete this form. 

The court will advise both parties to prepare and exchange written statements/evidence at a date before the hearing date. If the parties fail to file and serve documents as provided by the case management orders, they will not be able to rely on those documents at the hearing without leave of the court. Be sure to make notes and ask questions if you’re unsure of anything. 

There are, however, other possibilities for the next step: 

  • Adjourn to allow time for mediation — if there is room for detailed negotiation, the court might suggest that the parties contact a community justice centre (CJC) for more lengthy mediation with a trained mediator. If both parties agree to this course of action, the matter can be adjourned for a month or so to see if mediation can help settle the dispute. 
  • Adjourn to remedy a problem with either side’s case — if there is a significant problem with either side of the case (such as a missing invoice), the court may adjourn the pre-trial review to continue on another date. 
  • Transfer to the Local Court General Division — if there are complex legal issues involved or a vital witness who refuses to cooperate, the court can transfer the matter to the General Division of the Local Court. 
  • Set down for small claims assessment hearing — if the parties disagree on the issues still in dispute and no further negotiation seems worthwhile, the court will list the matter for a hearing on a specific date. The court will usually order that each party file their written witness statements with the court at least 14 days before the date of the hearing. They should also exchange statements with each other at the same time or as soon as possible. 

11.3 Evidence 

You must file and serve your documentary evidence on or before the due date. Otherwise, you may not be able to rely on it at the hearing. Some examples of documents used at hearing and accepted as evidence are: 

  • police reports 
  • letters 
  • file notes 
  • transcripts 
  • chronology of key events 
  • relevant emails/text messages 
  • diary entries 
  • letters/statements from witnesses 
  • invoices/accounts 
  • photos 
  • contracts 
  • bank statements etc. 

Witness statements 

A witness statement is a document which tells your version of events (or that of a third-party witness). There are no formal requirements for witness statements in the Small Claims Division, but they should include the following: 

  • title of proceedings (Jones v Smith in the Local Court at Ryde, Case Number X) 
  • full name, address and occupation of the witness 
  • date of the statement 
  • the witness’s role in the proceedings (defendant/plaintiff/bystander) 
  • a detailed account of relevant events or conversations 
  • reference to evidence that supports your statement (for example, a bank statement showing a transfer of funds to the plaintiff) 
  • any other information that supports your case 
  • witness's signature. 

It is ideal if you can attach copies of relevant documents (photos, quotes, diagrams, bank statements etc.) to the statement itself. 

Witnesses can also prepare their statement(s) in the form of a statutory declaration or affidavit (UCPR Form 40) and have their signature witnessed by a qualified person. 

See sample witness statement in Chapter 17 and sample witness affidavit in Chapter 18


A subpoena is a court order, to a person or organisation, asking them to either attend to give evidence on a specific date and/ or produce documents to the court by a specific date. You cannot issue a subpoena without the leave (permission) of the court. If you think you need a subpoena, you should seek leave at the pre-trial review. If granted, you will then need to file a subpoena (UCPR Forms 25, 26A and 27A) with the court and serve it on the other party/parties and the entity subpoenaed. 

You will also need to pay a filing fee and include a cheque for ‘conduct money’ — that is, a fee to cover reasonable costs. Where documents are produced under subpoena, the court will also make an order about who can access the documents (this is usually all parties to the proceedings). 

The Legal Aid NSW website provides an excellent step-by-step guide to issuing subpoenas in the NSW Local Court, and you can also talk to registry staff. 

Expert evidence 

In some cases, an expert witness may be needed (for example, to provide a valuation or survey report etc.). If this is the case, the party requiring the witness will need to seek leave of the court at the pre-trial review. Usually, where expert witnesses are permitted in the Local Court Small Claims Division, the registrar or magistrate will make orders for the appointment of a single expert. You should discuss expert witness needs with the presiding judicial officer at your pre-trial review. Be mindful that expert reports can be expensive, and it may not be sensible to engage an expert if the costs of the report outweigh the amount(s) in dispute. 

11.4 Small claims hearing 

The hearing is conducted by a magistrate or an assessor who can determine the procedure for hearing. For this reason, hearings in the Small Claims Division can differ from court to court. 

Your preparations for the final hearing should be like those for the pre-trial review; except you should now have gathered and carefully reviewed all the available evidence (see Chapter 9, The Local Court, for further practical information about appearing in court matters). 

What happens at the hearing? 

Each party must attend the hearing, in person, unless represented by a solicitor. There is no need for other witnesses unless leave has been granted for their attendance. Hearings are listed for about 30 minutes. 

Once the matter is listed for hearing, it isn’t easy to apply for an adjournment. If you do need to cancel (vacate) the hearing date, you will need to file a notice of motion (UCPR Form 20) not less than 21 days before the hearing date. If this is not possible, it must be filed as soon as you become aware that you cannot attend the hearing. You should talk to court registry staff if you’re unable to attend the hearing due to unforeseen circumstances. 

Before hearing the matter, the court will try to persuade the parties to negotiate a settlement to avoid the need for a hearing. If there is no agreement, the court will determine if everything is in order and ready to proceed. 

At the hearing, the magistrate or assessor will read the witness statements the parties have already filed. Parties will then be asked, in turn, to comment on the various statements and explain to the court why their statements should be preferred over their opponent’s. This is called making ‘submissions’. 

Delivering your final submission or case summary is your last opportunity to point out the strengths of your case and the weaknesses in your opponent’s argument. For example, in the case study above, Luca may argue that Jessica has not proven that she ever owned the items in dispute and has no evidence to support her argument that he has sold them. The plaintiff will give their submissions first followed by you (the defendant). The plaintiff will then have another opportunity to respond or reply to your submissions. 

The decision 

After hearing your submissions, and considering the available evidence, the assessor or magistrate will decide the case. They will usually deliver judgment immediately, with oral reasons. They will also calculate legal costs and disbursements (see 13.2 in Chapter 13 for more information on calculation of the judgment debt). In some cases, the court may ‘reserve’ judgment, which means they need more time to consider the evidence or pertinent legal issues and, parties are notified of the outcome at a later date. 

If an applicant’s case is dismissed this means that the defendant has won, and the case against them was unsuccessful. In these cases, the court might order that the plaintiff pay your legal costs. If you lose, a judgment is entered against you for the debt owed, plus all additional costs (such as legal fees). Where judgment is entered, the plaintiff (or judgment creditor), will have a further 12 years to enforce the debt. 

Note: the Small Claims Division does not provide interpreters, so if you require an interpreter you will need to make your own arrangements, such as bringing a friend who can interpret for you, or arranging a professional interpreter (see 1.5 in Chapter 1). 

11.5 Settling the case 

The court actively encourages parties to resolve matters themselves, because this ultimately saves time, money and resources. Parties can settle a case at any time before the final hearing. If you do come up with a mutually satisfactory agreement with the plaintiff before the final hearing, you should take steps to formalise the agreement, including: 

  • Entering a ‘deed of agreement/settlement’, which is signed and dated by both parties (and witnesses) and sets out the terms of your agreement. If you agree that the plaintiff will not proceed with the court matter, then they should also file a notice of discontinuance (UCPR Form 33), which informs the court that they want to end the case; or 
  • Alternatively, if you are at court, you can ask the court to make a consent judgment or order, embodying your terms of settlement. You can also ask the court to make a consent judgment at any time, before the final hearing, by filing a consent judgment form with the court registry (UCPR Form 44). 

See Chapter 10 for further information about negotiation and how to formalise your agreements. 

Forms and practice note