1 1. Overview of the Local Court Civil Jurisdiction Jurisdiction The Local Court s jurisdiction arises from s 9 Local Court Act 2007 NSW ( LCA ). Because the Local Court exists by virtue of a statute and is an inferior court, it has no inherent jurisdiction. This means it has no powers beyond those prescribed by the LCA or those conferred upon it by another act. Therefore, the Local Court has no jurisdiction with respect to: (a) proceedings relating to wills or settlements: s 33(1)(a) Local Court Act 2007; (b) (c) (d) (e) (f) (g) actions for passing-off, wrongful arrest, false imprisonment or malicious prosecution, or defamation: s 33(1)(b) LCA; infringement of letters patent or copyright: s 33(1)(c) LCA; detention of goods comprised in a hire purchase agreement: s 33(1)(d)(i) LCA or the goods are detained by their owner or by some other person acting on the owner s behalf: s 33(1)(d)(ii) LCA.; proceedings in which the title to land is in question: s 33(1)(e) LCA, other than proceedings in which the question of title to land is merely incidental: s 33(1)(e) LCA; to make declarations; or to grant injunctions. The Local Court has a Small Claims and a General Division in its Civil Jurisdiction. Section 29 of the LCA currently sets the monetary limit at $10,000 in the Small Claims Division and $100,000 in the General Division. However, the General Division can hear
2 matters up to $120,000 (an increase of 20% to the otherwise maximum jurisdictional limit) in circumstances where the parties file a memorandum of consent or no objection: s 31(2) LCA. Also note, that the limit is $60,000 in relation to a claim arising out of personal injury or death. Under section 30 of the LCA The Court has jurisdiction (subject to the monetary limits prescribed by s. 29 with respect to: (a) proceedings on any money claim (b) proceedings to recover detained goods, or to recover the assessed value of detained goods, and consequential damages claimed for their detention, (b1) proceedings involving company title home unit disputes under section 34A, and (c) proceedings that, pursuant to any other Act, are required to be dealt with by the Court sitting in that Division. According to section 29A of the LCA money claim means" a claim for recovery of any debt, demand or damages (whether liquidated or unliquidated). Jurisdiction is also conferred with respect to: consent orders (with no limit on the amount) under the Family Law Act 1975 (Cth) so long as there is no dispute in that regard. If there is a dispute, the Court will refer the matter to the Federal Circuit Court; damages in an action under section 68 Fair Trading Act 1987; damages under the Australian Consumer Legislation; actions under the Corporations Act 2001 subject to the Local Court s jurisdictional limits: s 1337E Corporations Act 2001; claims to recover a sum of money in a foreign currency whether the sum claimed is to recover a debt: Miliangos v George Frank (Textiles) Ltd [1976] AC 443 or represents damages for breach of contract and for tort: The Despina R [1979] AC 685; Proceedings for relief under s7(i)(a) Contracts Review Act 1980: s 32 Local Court Act 2007 in which the Court has the same jurisdiction as the Supreme Court up to the Local Court s jurisdictional limit; where the cause of action or part of it arose outside New South Wales and where the whole cause of action arose outside New South Wales so long as the defendant was resident in New South Wales at the time of service of the originating process: s 34 Local Court Act 2007. The issue is service within Australia pursuant to s 15(1) Service and Execution of Process Act 1982
3 Practice and Procedure The Civil Procedure Act 2005 (CPA) and Uniform Civil Procedure Rules 2005 (UCPR) mandate the procedure for conduct of proceedings in the Local Court. In addition, the Court issues Practice Notes. Of these, Practice Note Civ 1, entitled Case Management of Civil Proceedings in the Local Court is of note. This Practise Note, last amended on 4 March 2013 can be located at: http://www.localcourt.justice.nsw.gov.au/pages/practice_procedure/practice_notes.aspx The main objectives of the Practice Note are to update standard procedures intended to aid the Court s overriding purpose of facilitating the just, quick and cheap resolution of proceedings, as set out in section 56 of the CPA. Some key areas provide guidance in relation to: Arrangements for appearances of parties or witnesses via audio visual link (AVL) facilities; making of guillotine orders where a party does not serve evidence within the timeframes allowed by the court; limitation of disclosure (discovery) orders to situations where there are exceptional circumstances why such an order is necessary for resolving the real issues in the proceedings. Ordinarily, a disclosure order is not to be made until the parties have served their evidence; Arrangements in relation to expert evidence, including for a single expert to be used wherever possible or, if the court permits each party to call their own expert witness, for the preparation of a joint report and the giving of concurrent evidence at the hearing Arrangements for Alternative Dispute Resolution (ADR) Pursuant to the Practice Note, the Court has issued a set of Standard Practice Directions, which can be found at the above link. The following comment appears in bold and serves as a clear warning of the consequences of not complying: If the parties fail to comply with the courts directions it can be expected that the Statement of Claim will be dismissed or the defence struck out and orders will be made that the non-complying party pays the costs of the other party. These directions serve to guide the practitioner as to the manner in which a matter ought to be conducted in the Court.
4 2. You, the Practitioner Where are you in your career path? Where are you working? What is the environment? Have I got the support I need to do conduct the proceedings properly? Have you got the time to see the matter through? Have I the expertise required? 3. Client Assess who they are as a person How will they be as a witness? Clarify what is really important to them what is driving the matter? Remedy or punishment? Be frank and honest about how the Local Court works Advise client as best as you can on costs. Always get signed instructions 4. The Problem Identify the problem is it actionable? Conduct a view Collecting the evidence o Documentary o Witness Analyse the Evidence o How sure is it? o Are the documents admissible? o Conference all witnesses. o Will the witness turn up? Merits: Can the evidence convincingly make out the elements of the action What are the cost/benefits of running it? Do I need an expert?
5 5. The Other Side Find out as soon as you can who is dealing with the matter on the other side and get in touch with that person Check out what their form is Explore what their view is in relation to the matter. Seek agreement where possible so as to narrow the issues Are they self-represented? What do you do then? 6. The Bench Who will it be? What is their background? What else is in the list? Priority will your matter be reached Local Court is a busy jurisdiction where criminal matters take precedence. 7. Settlement Actively encouraged in the Local Court and Just about everywhere else. Self-initiated/court initiated Can narrow issues even though unsuccessful Power to the punter Provides certainty Not appealable 8. The Bar Why don t you need a barrister? Reasons why you might need a barrister: Specialist knowledge A second opinion advice Assist in shifting a client s perception of the issues Focus on what will win the case (if anything) rather than just what is arguable What are the benefits of briefing early vs late? Ongoing support over the life of the matter Can assist Solicitor s file management