0 PROCEDURE GUIDE For SELFREPRESENTED LITIGANTS FOR GENERAL CIVIL

0 PROCEDURE GUIDE For SELFREPRESENTED LITIGANTS FOR GENERAL CIVIL

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PROCEDURE GUIDE
For
SELF-REPRESENTED LITIGANTS
FOR GENERAL CIVIL CLAIMS IN THE CIVIL JURISDICTION OF THE
DISTRICT COURT OF WESTERN AUSTRALIA
DISTRICT COURT
OF WESTERN AUSTRALIA
500 HAY STREET,
PERTH WA 6000
TELEPHONE: (08) 9425 2178
FACSIMILE: (08) 9425 2268
Last updated: 6 September 2021
i
Important information for litigants in person
The information provided in this Procedure Guide is designed to inform
members of the public about the practice and procedure in the civil
jurisdiction of the District Court (“Court”) and increase awareness
about Court protocol.
This Procedure Guide does not set out all the information that must be
known to commence or defend proceedings in the Court. This information
may only be found in:
*
The legislation and rules governing the Court.
*
The legislation and regulations governing particular types of
actions and applications.
*
Decisions of the Court and other courts.
The information in this Procedure Guide is provided on the basis that
users will assess and verify the information and any representations
or statements obtained from the Procedure Guide before use.
The document is up to date as at the date on the front cover. Changes
in legislation, rules, regulations and case law after this may impact
the accuracy of the material in this Procedure Guide.
The information provided in this Procedure Guide is a general guide
only and should not be used, relied on or treated as a substitute for
specific professional advice.
Abbreviations
CJEA Civil Judgments Enforcement Act 2004 (WA)
CJER Civil Judgment Enforcement Regulations 2005 (WA)
Court District Court of Western Australia
DCA District Court of Western Australia Act 1969 (WA)
DC Circular District Court Circular to Practitioners
DCFR District Court (Fees) Regulations 2002(WA)
DC Practice Direction Consolidated Civil Practice Direction
DCR District Court Rules 2005 (WA)
DC Website www.districtcourt.wa.gov.au
O Order (of the RSC)
r Rule or regulations
RSC Rules of the Supreme Court 1971 (WA)
s Section (of an Act)
SCA Supreme Court Act (WA)
The legislation, regulations and rules set out above are available
online at: https://www.legislation.wa.gov.au/. They are also available
from the District Court website – www.districtcourt.wa.gov.au.
District Court Consolidated Practice Directions and Circulars are
available from the District Court website.
Table of contents
Important information for litigants in person i
Abbreviations ii
1. Jurisdiction of the Court
1.
What general civil actions can be commenced in the District
Court?
2.
What are some common types of actions commenced in the District
Court?
3.
What Rules govern the practice and procedure of the Court
4.
How does a general civil action usually proceed?
2. Acting for yourself
1.
Can I act for myself in a District Court action?
2.
Can I act for a person under a disability?
3.
Can I act for a corporation that I am a director of?
4.
Lodging documents in the Court
3. Assistance
3.1 What assistance can I obtain?
3.2 Whom do I contact in the Court for particular inquiries?
3.
How do I communicate with the Court?
4.
Where can I go to get legal advice?
4. Commencing an action
1.
What documents do I have to file to commence an action?
4.2 How do I serve the writ?
4.3 What is a statement of claim?
4.4 By when do I have to file a statement of claim?
5.
Filing and service of Court documents
5. Defending action
5.1 What documents do I have to file to defend an action?
5.2 What happens if I don’t file a memorandum of appearance?
5.3 What is a defence?
4.
When do I have to file a defence?
5.5 What happens if I don’t file a defence?
5.6 What if I also have a claim against the plaintiff?
5.7 How do I serve documents on a defendant once an appearance has
been filed?
5.8 Filing and service of Court documents
6. Other pleadings and parties
6.1 What other pleadings may be required?
6.2 Can other parties be added to the action besides the plaintiff and
defendant?
7. Determination of a claim without a full trial
7.1 What can I do if the defendant does not file a memorandum of
appearance?
7.2 What can I do if the defendant does not file a defence?
7.3 Can I get a default judgment set aside?
7.4 What is summary judgment?
8.
Obtaining information from the other parties
1.
What is discovery?
8.2 When do I have to give discovery?
3.
How does inspection of documents work?
8.4 How do I find out more about the other side’s case?
8.5 What are interrogatories?
6.
How will I know how much money the other side is claiming?
8.7 How do I seek other orders to help me progress or defend the
action?
9. Applications to the court prior to trial
9.1 What is a chamber summons?
9.2 What is a directions hearing?
9.3 Can the parties agree on the orders sought?
9.4 Are there specific rules for building and engineering disputes?
9.5 How do I get expert evidence before the Court?
10. Case management
1.
What is case management?
10.2 How do I enter an action for trial?
========================================
10.3 What if I don’t enter the action for trial within the timetable?
=====================================================================
4.
What is the Inactive Cases List?
11.
Settlement and mediation
11.1 What is a pre trial conference and when is it held?
11.2 What happens at a pre trial conference?
11.3 What is a mediation conference?
11.4 When will the Court list a mediation conference?
11.
Listing for trial
1.
How is an action listed for trial?
2.
What do I have to do to prepare for a listing conference?
12.3 Are there any fees for the trial?
13. Trial
1.
What documents do I have to file before trial?
2.
How do I compel a witness to attend the trial?
3.
What happens at trial?
14. Enforcing a judgment
1.
How do I enforce a judgment?
15. Costs
15.1 What is the difference between party and party costs and
solicitor and client costs?
15.2 What types of costs orders will the court usually make?
15.3 Can I be ordered by the Court to pay costs?
15.4 How to I get the Court to assess party and party costs?
15.5 What do I do if I have a dispute with my lawyer about the bill of
costs?
16. Fees
1.
What fees does the Court change?
16.2 What if I can’t afford the Court fees?
Annexures
Annexure
Document
Worked Example
A
Schedule of fees and charges
B
Form 2 – Application to reduce fees
C
Writ – template
Writ – example
D
Memo of appearance – template
Memo of appearance – example
E
Statement of claim – template
Statement of claim – example
F
Defence – template
Defence – example
G
Default judgment – template
H
Affidavit - template
Affidavit - example
I
Chamber summons – template
Chamber summons – example
J
List of discoverable documents - template
List of discoverable documents - example
K
Affidavit verifying list of documents - template
Affidavit verifying list of documents - example
L
Minute of proposed orders – template
Minute of proposed orders – example
M
Consent order – template
Consent order – example
N
Entry for Trial - template
Entry for trial – example
O
Form 4A Subpoena to give evidence - template
Form 4B Subpoena Notice – template
Form 4C Subpoena to produce documents
Form 4D Subpoena notice and declaration – health professionals and
hospital
Form 4E Subpoena notice and declaration
P
Cover sheet for documents filed by facsimile
1. Jurisdiction of the Court
1.1 General Civil Jurisdiction
The District Court has jurisdiction in all personal actions where the
amount, value or damages sought to be recovered does not exceed
$750,000. The Magistrates Court has jurisdiction up to $75,000. A
personal action claim where the amount to be recovered is $75,000 or
less should be brought in the Magistrates Court.
A personal action is an action for the recovery of debts, personal
property, or damages from any cause other than personal injury.
Personal injury actions
The District Court has the same jurisdiction as the Supreme Court in
relation to a claim for damages in respect of the death or bodily
injury to a person, and in relation to all proceedings under the Law
Reform (Contributory Negligence and Tortfeasors Contribution) Act
1947.
Whilst an action for damages for bodily injury arising from a motor
vehicle accident could be brought in the Supreme Court, it is usual to
bring these actions in the District Court.
1.2 What are some common types of actions commenced in the District
Court?
The most common action commenced in the Court is a claim for damages
for personal injuries arising out of:
*
A motor vehicle accident;
*
Medical negligence;
*
Workplace injuries – subject to the limitations imposed by the
Workers Compensation and Injury Management Act 1981 (WA); and
*
Accidents in public places, for example, shopping centres.
Some of the more common types of commercial claims brought to the
Court are for:
*
Debt recovery;
*
Damages for breach of contract, for example, to supply machinery;
*
Damages for breach of a contract to purchase land or an apartment
off the plan;
*
Claims arising out of the sale or purchase of a business; or
*
Claims for damages for misleading or deceptive conduct.
1.3 What rules govern the practice and procedure of the Court?
The District Court was established in Western Australia by the
District Court of Western Australia Act 1969 (WA) (“DCA”). The DCA
allows the Judges of the Court to make rules, which they have done in
the District Court Rules 2005 (WA) (“DCR”).
Where the DCR do not deal with an issue, the procedure set out in the
Rules of the Supreme Court 1971 (WA) (“RSC”) applies in the Court.
Enforcement of judgments is governed by the Civil Judgments
Enforcement Act 2004 (WA) (“CJEA”) and the Civil Judgment Enforcement
Regulations 2005 (WA) (“CJER”).
The Court charges fees for some of its services. The fees are set by
the District Court (Fees) Regulations 2002 (WA) and the Evidence
(Video and Audio Links Fees and Expenses) Regulations 1999 (WA). For
more information about the fees charged by the Court, see Part 16 and
Annexure A. Please note that fees are subject to change at any time.
The legislation, regulations and rules set out above are available
online at: https://www.legislation.wa.gov.au/. They are also available
from the District Court website – www.districtcourt.wa.gov.au
1.4 How does a general civil action usually proceed?
A general civil action will usually proceed along the following lines
(cross referenced to the Parts of this Procedure Guide):
The plaintiff files a writ of summons to commence the action (Part 4).
The defendant files a memorandum of appearance indicating that the
defendant intends to defend the action and provides an address for
service of documents (Part 5).
The plaintiff files a statement of claim setting out the facts on
which their claim is based and the orders sought from the Court (Part
6).
The defendant files a defence, setting out the facts which the
defendant wishes to place before the Court in opposition to the
plaintiff’s claim. The defendant may also file a counterclaim
containing a claim by the defendant against the plaintiff (Part 7).
Each party provides a list of the documents in their possession,
custody or control to the other side, and permits the other side to
inspect and take copies of these documents. This process is known as
discovery (Part 8).
A party may apply to the Court for orders to assist in clarifying the
assertions in the statement of claim or defence or to obtain
information from the other side as to the case it has to meet at trial
(Part 8).
When the plaintiff considers the action is ready to be allocated trial
dates, the plaintiff files and serves on the other parties an Entry
for Trial - DCR Form 1 (Part 10).
After the Entry for Trial the parties are required to attend a
settlement conference (known as a pre trial conference) where a Court
Registrar will facilitate a discussion between the parties to see if
the parties can agree to settle the action without going to trial. In
some cases a formal mediation conference is listed (Part 11).
The parties attend a listing conference at which the action is
allocated a trial date (Part 12).
The trial is held. A Judge will review all the evidence and publish a
written judgment (Part 13).
The successful party enforces the judgment (Part 14), and any costs
orders (Part 15).
2. Acting for yourself
1.
Can I act for myself in a District Court action?
The general rule is that a person has the right to progress an action,
or defend an action against them, in person and without the use of a
lawyer.
Judges, Registrars and Court staff are only able to provide limited
assistance – see Part 3.
There are two exceptions to this general rule. Firstly where the
person is under a disability and secondly where the litigant is a
corporation. Each is discussed below.
2.
Can I act for a person under a disability?
An individual who is not a solicitor cannot progress or defend an
action on behalf of a person under a disability.
RSC O 70 r 1 defines a “person under a disability” to be an infant, a
represented person within the meaning of the Guardianship and
Administration Act 1990 (WA) (“GAA”) or a person “who, by reason of
mental illness, defect or infirmity, however occasioned, is declared
by the Court to be incapable of managing his affairs in respect of any
proceedings to which the declaration relates”.
The GAA grants to the State Administrative Tribunal (“SAT”) the power
to make findings as to a person’s capacity to manage their affairs and
to make appropriate orders for the representation of people unable to
do so. The Court recognises that the expertise in the appointment of
representatives of incapable persons resides with the SAT.
Accordingly, a person seeking to commence or defend litigation on
behalf of an incapable person who is not an infant should first seek a
guardianship or administration order pursuant to the GAA. The Court
will not usually make a declaration that a person is incapable of
managing their affairs for the purpose of making that person a
represented person within O 70.
A person appointed to represent an incapable person under the GAA does
not need to make an application to act as a next friend, unless the
party became a represented person after the action was commenced (RSC
O 70 r 3).
A person appointed to represent an incapable person must act by a
solicitor. The solicitor must file with the writ or appearance a copy
of the order by which the next friend was appointed to represent the
incapable person (RSC O 70 r 3).
3.
Can I act for a corporation of which I am a director?
A corporation can only progress or defend an action in the District
Court through a solicitor.
RSC O 4 r 3(2) provides:
2.
Except as expressly provided by or under any Act a body corporate
may not begin or carry on any such proceedings otherwise than by a
solicitor.
RSC Order 12 rule 1(2) provides:
2.
Except as expressly provided by any Act, a defendant to such an
action which is a body corporate may not enter an appearance in
the action or defend it otherwise than by a practitioner.
The Court will not accept documents sought to be filed on behalf of a
corporate litigant unless they are filed through a solicitor.
There is a limited discretion in the court to allow a director or
other representative (not a lawyer) to appear for the corporation at a
court hearing (see DCA s39).  A person wishing to appear at a hearing
on behalf of a corporate litigant will need to obtain the permission
(called obtaining leave) of the Judge or Registrar presiding at the
hearing to do so.  A person wishing to obtain this leave should write
to the Perth Registry of the court not less than 7 days prior to the
hearing:
*
identifying the action number;
*
identifying the hearing date and time;
*
notifying the court that they intend to seek leave to appear on
behalf of a corporate litigant; and
*
setting out the reasons why the judicial officer should grant them
leave to represent the party at the hearing, including the reason
why the corporate entity has not retained a solicitor to act for
them.
A copy of the letter should be sent to each other party.
The letter will be referred to the Judge or Registrar presiding at the
hearing.
4.
Electronic Lodgement of Documents
Litigants in person who are a registered user with the Court can file
documents electronically, that is, without the need to attend a
Registry (eLodgement). eLodgment is available 24 hours a day, seven
days a week, subject to the Courts Rules.
For more information on eLodgement, including how to become a
registered user, please go to this link
https://www.districtcourt.wa.gov.au/E/elodgment.aspx
3. Assistance
3.1 What assistance can I obtain from Court staff?
Court staff can:
*
Provide Court forms;
*
Provide information about Court practice and procedure;
*
Provide information about when a hearing is listed;
*
Provide information about Court fees; and
*
Provide contact information of other agencies that may assist a
litigant.
Court staff cannot:
*
Provide legal advice;
*
Complete forms for a person;
*
Tell a litigant what to write on a form; or
*
Tell a litigant what to say in Court
The Judge or Registrar cannot:
*
Give legal advice;
*
Assist a party to present their case;
*
Complete forms for a litigant; and
*
Speak directly to litigants other than in open court.
Parties should not send letters directly to a Judge or Registrar, but
rather should communicate with them in writing through the Associate
to the Judge or Registrar. The contact details of Associates are on
the DC Website.
3.2 Whom do I contact in the Court for particular inquiries?
The following tables sets out the contact details of Court staff with
particular responsibilities:
General Enquiries - Civil
Telephone
Facsimile
General Enquiries 
Civil Case Management Officer 
(08) 9425 2178 
(08) 9425 2268
 email:   [email protected]
 
 
 
 
 Subpoenaed Items
Court Services 
(08) 9425 2418
(08) 9425 2538
 
 
 
 
Video Link Bookings
Court Services
(08) 9425 2418
(08) 9425 2538
email: [email protected]
 Transcripts 
Customer Support Officer 
(08) 9425 2416 
 (08) 9425 2538
 email: [email protected]
3.
How do I communicate with the Court?
For anything other than a short query, communications with the Court
should be in writing. The Court’s contact details are:
Post: District Court of WA
500 Hay Street
PERTH WA 6000
Facsimile: (08) 9425 2268
Email: [email protected]
As a general rule, any party contacting the Court must send a copy of
the correspondence to each other party. The fact that a copy of the
correspondence has been sent to each other party should be apparent on
the face of the letter, facsimile or email.
The main exceptions to this general rule are:
*
Communications regarding the payment of Court fees; and
*
Complaints about Court processes or staff members.
Litigants should carefully consider what is written in any
correspondence as letters received by the Court are placed on the
relevant Court file and may be searched by other parties or members of
the public.
3.
Where can I go to get legal advice?
It is appreciated that the cost of obtaining legal advice can be
expensive. There are however a number of organisations, including
those indicated below, which can provide legal advice at minimal or
reduced cost:
Law Access administer a no fee referral system. Part of the
eligibility criteria I that you must have first approached Legal Aid
WA or a Community Legal Centre and be a low income earner. More
information on eligibility and how to make an application is available
here: https://www.lawsocietywa.asn.au/law-access/how-to-apply/
Law Society of WA
Level 4, 89 St George’s Terrace, Perth 9221 4402
Citizens Advice Bureau of WA
25 Barrack Street, Perth 9221 5711
Consumer Credit Legal Service
Level 1, 231 Adelaide Terrace, Perth 9221 7066
Sussex Street Community Law Service
29 Sussex Street, East Victoria Park 9625 9500
4. Commencing an action
1.
What documents do I have to file to commence an action?
A general civil claim is commenced by filing and serving a writ of
summons (“writ”). A writ is a document outlining to the Court and to
the other party (referred to as the defendant) the basis of the
plaintiff's claim. A blank template and a worked example for a writ is
at Annexure C.
The writ must either contain an indorsement of claim or a statement of
claim (see section 4.3).
An indorsement of claim is a “concise statement of the nature of the
claim made, and of the relief or remedy required in the action”: RSC O
6 r 1(1)). An example of an indorsement of claim for repayment under a
loan agreement is:
“The plaintiff’s claim is for repayment of $100,000, together with
interest of $12,000 as at the date of the writ, being money due and
owing by the plaintiff to the defendant pursuant to a loan agreement
dated 1 April 2009”.
The writ must be filed at the registry of the District Court from
which it is to be issued. Refer to section 69 District Court of
Western Australia Act 1969.
When the writ is filed the plaintiff must pay the required filing fee.
The filing fee is set out in Annexure A. In some cases the filing fee
may be waived if you are under the age of 18 years, or reduced: The
process is set out in Part 16.
2.
How do I serve the writ?
Once filed, the plaintiff must arrange personal service of the writ on
the defendant (or each defendant if there is more than one) (RSC O9 r
1(1)).
If the defendant is a natural person it is necessary to serve the writ
on the defendant personally. Personal service means that the defendant
must be given an exact copy (called a true copy) of the writ and
allowed the opportunity to inspect the original sealed writ (which
should be immediately available for inspection) if he/she wishes to do
so.
While it is permissible for a plaintiff to serve the writ, it is
recommended that the plaintiff engage the assistance of a professional
process server to serve the writ and attend to the necessary
documentation.
Within 3 days of service, the original sealed writ must be indorsed
with the particulars of service in the place provided for it on the
writ. It is important these details are completed within 3 days of
service: failure to indorse the writ will mean you are not able to
enter judgment in default of appearance.
If the defendant is a company then the writ may be served by posting a
copy of the writ to the company at its registered office. The copy
should be a complete copy and it is advisable to photocopy the sealed
copy of the writ for the purposes of service to ensure that the
defendant receives all the information to which it is entitled.
Where a defendant deliberately evades service of a writ or where a
defendant cannot be found, it is open to a plaintiff to make an
application to the Court for leave for substituted service (for
example, by advertisement in a newspaper). This is made using a
chamber summons (Part 9.1) supported by an affidavit (Annexure H). A
worked example can also be found at Annexure H.
3.
What is a statement of claim?
A statement of claim is a statement of the facts on which the claim is
based and of the type of relief or remedy that the plaintiff claims.
The statement of claim must set out in detail the case the plaintiff
will make at trial and which the defendant has to meet at trial. The
rules governing the content of a statement of claim are set out in RSC
O 20.
The statement of claim must be in numbered paragraphs. Each allegation
should generally be contained in a separate paragraph.
A defendant may apply to the Court to strike out parts of a statement
of claim (RSC O 20 r 19).
The statement of claim may be amended from time to time, though in
some cases the leave of the Court must be obtained to make the
amendment (RSC O 21).
A blank template and worked example for a statement of claim can be
found at Annexure E.
4.4 By when do I have to file a statement of claim?
The plaintiff may incorporate the statement of claim into the writ,
and serve it with the writ. If this does not occur, the plaintiff must
file and serve the statement of claim:
*
Within 14 days after the defendant has entered an appearance (see
Part 5); or
*
Any later time permitted by order of the Court.
(RSC O 20 r 1).
If the plaintiff does not file and serve a statement of claim within
the specified time, the defendant may apply to the Court to strike out
the claim (RSC O 22 r 1).
4.5 Filing and service of Court documents
All court documents must be filed with the Court and served on each
other party.
There are three ways in which a party can file documents with the
Court:
a.
by attending the Registry of the Court at 500 Hay Street, Perth
(or one of the country circuit registries), during the business
hours of 9.00am to 4.00pm;
b.
by sending the document by post to the Registry,
Post: District Court of WA
500 Hay Street
PERTH WA 6000
c.
by sending it by facsimile to the District Court at:
Facsimile: (08) 9425 2268
If sent by facsimile, a facsimile cover sheet must be used (Annexure P).
(d) by email at [email protected]
(e) By electronic lodgement if you are a registered user – see Part
2.4
There are filing fees for some Court documents. These are set out in
Annexure A. In some cases the filing fee may be waived, if you are
under the age of 18 years, or reduced: The process for which is set
out in Part 16.
5. Defending action
5.1 What documents do I have to file to defend an action?
A defendant who wishes to defend an action must file a memorandum of
appearance within the time specified in the writ (RSC O 12). Each writ
has endorsed on its front the number of days within which the
defendant is required to file an appearance in the registry from which
that writ was issued. The amount of time varies according to the
location of the defendant and increases the further the defendant
lives from the registry of issue.
The memorandum of appearance must provide the defendant's geographical
address which is generally where the person lives and the defendant's
service details which is a postal address where documents can be
served by other parties.
A blank template and worked example for a memorandum of appearance can
be found at Annexure D.
As set out in section 2.2, only a solicitor may file an appearance on
behalf of a person under a disability (RSC O 70 r 3).
As set out in section 2.3, a corporation can only defend an action
through a solicitor (RSC O 12 r 1(2)).
On the day of filing a memorandum of appearance, the memorandum of
appearance must be served on the plaintiff at the plaintiff’s address
for service of documents shown on the writ. (RSC O12 r 4).
5.2 What happens if I don’t file a memorandum of appearance?
Where a defendant does not file a memorandum of appearance within the
time specified in the writ, the plaintiff may obtain default judgment
against the defendant – see generally Part 7.
5.3 What is a defence?
A defence is a statement of the facts which the defendant says
entitles him or her to resist or defend the plaintiff’s claim. It must
set out in detail the case the defendant will make at trial. The rules
governing the content of a defence are set out in RSC O 20.
The defence must be in numbered paragraphs. The defence should refer
to the numbered paragraphs of the statement of claim and set out
whether the allegation in that paragraph of the statement of claim is
admitted or denied. The defendant may introduce other factual matters
which he or she believes give rise to a defence. Each allegation
should generally be contained in a separate paragraph.
A plaintiff may apply to the Court to strike out parts of a defence
(RSC O 20 r 19).
The defence may be amended from time to time, though in some cases
leave of the Court must be obtained to make the amendment (RSC O 21).
A blank template and worked example for a defence can be found at
Annexure F.
4.
When do I have to file a defence?
The defendant must file the defence:
*
If the statement of claim was served separately from the writ,
within 14 days of service of the statement of claim.
*
If the statement of claim was in the writ, within 14 days after
the day on which the appearance had to be filed and served.
*
Such other time as permitted by the Court.
(see generally RSC O 20 r 4).
5.5 What happens if I don’t file a defence?
If you do not file a defence, the plaintiff may bring an application
in the Court seeking orders that default judgment be entered against
you – see generally Part 7.
5.6 What if I also have a claim against the plaintiff?
A defendant who has a claim against the plaintiff may commence a
counterclaim against the plaintiff.
The counterclaim is usually set out at the end of the defence. It may
incorporate parts of the defence by reference to numbered paragraphs
of the defence. It is to be set out in the same way as a statement of
claim (see section 4.3 above).
An example of a situation in which a counterclaim arises might be
where the plaintiff sues the defendant for the cost of paint supplied
and delivered and the defendant counterclaims because he or she
alleges that the paint was defective and after it was used had to be
stripped and replaced with some other paint.
5.7 How do I serve documents on a defendant once an appearance has
been filed?
The defendant must set out an address for service of documents in the
memorandum of appearance. This will at least contain a postal address
to which documents can be sent for service by ordinary prepaid post.
It may also contain a fax number or email address which may be used as
the address for service.
5.8 Filing and service of Court documents
All court documents must be filed with the Court and served on each
other party.
There are three ways in which a party can file documents with the
Court:
a.
by attending the Registry of the Court at 500 Hay, Street, Perth
(or one of the country circuit registries), between the business
hours of 9.00am to 4.00pm;
b.
by sending the document by post to the Registry,
Post: District Court of WA
500 Hay Street
PERTH WA 6000
(c) by sending it by facsimile to the District Court at:
Facsimile: (08) 9425 2268
If sent by facsimile, a facsimile cover sheet must be used (Annexure P).
(d) by email at [email protected]
(e) By electronic lodgement if you are a registered user – see Part
2.4
There are filing fees for some Court documents. These are set out in
Annexure A. In some cases the filing fee may be waived, if you are
under the age of 18 years, or reduced: The process for which is set
out in Part 16.
6. Other pleadings and parties
6.1 What other pleadings may be required?
In most instances it is not necessary for a plaintiff to respond to a
defence. However where the defendant raises new issues that were not
included in the statement of claim, it is often necessary for the
plaintiff to respond to those allegations in a document called a
reply.
A reply must be filed and served on the defendant within 14 days of
the service of the defendant's defence.
If the defendant has served a counterclaim with his defence it is
necessary for the plaintiff to file a defence to that counterclaim.
That defence to counterclaim must also be filed within 14 days of the
date of service of the counterclaim.
6.2 Can other parties be added to the action besides the plaintiff and
defendant?
The general rule for litigation is that all parties whose presence is
before the Court is required in order to ensure that all matters in
dispute in the action may be effectually and completely determined
ought to be joined as a party to the action.
The plaintiff can add other defendants. The defendant can add other
parties - referred to as third parties – whom he or she alleges are
responsible for the losses claimed by the plaintiff against the
defendant. There are detailed rules governing the addition of further
parties, set out in RSC O 18 and O 19.
For more information about third party proceedings, see the Civil
Consolidated Practice Directions and Circulars.
7. Determination of a claim without a full trial
7.1 What can I do if the defendant does not file a memorandum of
appearance?
If the defendant does not file an appearance within the time required
the plaintiff is entitled to apply for a default judgment (see
generally RSC O 13). A blank template and a worked example for a
default judgment can be found at Annexure G.
Before a default judgment can be entered it is necessary for the
plaintiff to prove that the defendant has been properly served with
the writ. This is done by filing an affidavit of service. A blank
template and a worked example of an affidavit can be found at Annexure
H.
Where the claim is for an amount of money that can be ascertained by
calculation or fixed by a scale of charges or other positive data,
then it is usually the case that the default judgment can be given for
the amount of the claim.
Where the claim is not for a fixed amount of money, but is for an
award of damages, the form of the default judgment will be for damages
to be assessed. There will need to be a hearing at which the amount of
the damages is assessed.
7.2 What can I do if the defendant does not file a defence?
If the defendant does not file and serve a defence within the
specified time, you may apply, by Chamber Summons, to the Court for
orders that judgment be entered against the defendant. The application
must be supported by an affidavit.
7.3 Can I get a default judgment set aside?
A defendant against whom an order for default judgment has been made
can apply to have the default judgment set aside (see generally RSC O
13 r 10, O 22 r 10).
7.4 What is summary judgment?
Both the plaintiff (see Order 14 RSC) and the defendant (see Order 16
RSC) have the opportunity to apply to the Court for a judgment on the
basis that the defendant has no defence or alternatively the
plaintiff’s claim is unsustainable.
Either application must be brought within 21 days after the appearance
or any later time approved by the Court. This time limit exists to
ensure that the parties do not undertake a lot of work to ready the
action for trial, only to have one or other of them claim that there
is a basis for a summary judgment.
An application for summary judgment is made by filing and serving a
chamber summons. A blank template and worked example of a chambers
summons can be found at Annexure I.
An application by either a plaintiff or a defendant for summary
judgment must be supported by an affidavit verifying the facts upon
which the cause of action or the defence is based. A blank template
and worked example of an affidavit can be found at Annexure H.
The general procedure for a chamber summons set out in section 9.1
applies to a chamber summons seeking summary judgment.
In order to be successful, an application for summary judgment must
first comply with the technical rules set out in RSC O 14 and O 16. If
these rules are not complied with, the application may be dismissed
without consideration of the merits of the claim or defence.
In the event that the summary judgment application is successful,
judgment will be entered there and then in terms of the successful
application. The judgment may relate to the whole or only a part of
the action; however that will depend on the circumstances.
8. Obtaining information from the other parties
1.
What is discovery?
Discovery is a Court process that requires each party to prepare a
list of documents relevant to the action which either are or have been
in that party’s possession, power or custody, and then to verify the
correctness of that list with an affidavit.
To comply with the discovery obligation, each party must file and
serve:
a.
a list of discoverable documents; and
b.
an affidavit verifying the list.
A blank template and worked example for a list of discoverable
documents can be found at Annexure J. A blank template and worked
example for a verifying affidavit can be found at Annexure K
It is important to understand that even if a document is no longer in
the party’s possession it must nonetheless be referred to and its
present whereabouts, if they can be ascertained, disclosed. Likewise,
even if a document is not in the actual physical possession of a party
it may nonetheless be held by another person on that party’s behalf
(eg by an accountant). Documents that are held by accountants or other
agents of a party, are regarded as being in that party’s possession
and must be discovered.
In some circumstances a party is entitled to claim privilege in
respect of the discovery of certain documents. Privilege arises in
respect of documents that pass between solicitor and client for the
purposes of giving instructions and obtaining legal advice. Privileged
documents need to be identified in the list but need not be shown to
other parties to the action.
It is possible to challenge the validity of a claim that a document is
privileged. An application of this type is brought by way of a chamber
summons and is listed before a Registrar. The application should be
supported by an affidavit setting out the facts upon which the
applicant relies.
More information about discovery in the Court is set out in:
*
RSC O 26
*
DCR r 46
*
Civil Consolidated Practice Directions and Circulars
8.2 When do I have to give discovery?
Each party has to give discovery within 60 days after the filing of
the first defence in the action (DCR r 46(4)) or such other time set
by the Court.
8.3 How does inspection of documents work?
Each party is entitled to examine and obtain copies of all
non-privileged documents held by each other party.
The parties giving discovery must provide the other parties with a
reasonable opportunity to inspect the documents. It is the right of a
party to attend and examine the originals of all discovered documents
for which privilege is not claimed. In most instances however parties
are content to accept photocopies of original documents rather than be
given the opportunity to attend and inspect the originals.
Each party can request the other to provide copies of discovered
documents. A law firm may charge for copying the discovered documents.
8.4 How do I find out more about the other side’s case?
In some instances a defendant or plaintiff may consider that the
information provided by a statement of claim or defence is not
sufficiently precise and that further information should be provided.
In such circumstances a ‘Request for Further and Better Particulars’
is prepared and served on the other side. This document should
identify the paragraph in the statement of claim or defence of which
further particulars are required and set out with precision what
details the requesting party considers should be given.
The Request for Further and Better Particulars must be made within 21
days of service of the statement of claim or defence to which it
relates but the Court may extend the time. An application to extend
should be by chamber summons – see section 9.1.
If the request is not responded to or is only partly answered it is
possible to apply to the Court for an order compelling the other side
to answer the request.
8.5 What are interrogatories?
In some circumstances the parties to the action are entitled to put a
set of questions, called ‘Interrogatories’, to the other side. These
questions must be answered on oath, that is, by affidavit.
In actions for damages or personal injury a limited category of
interrogatories may be asked without the leave of the Court. This
category of questions is set out in DCR r 47. The questions must be
served within 75 days of the first defence being filed.
In all other instances a party wishing to interrogate another party
must prepare a set of proposed interrogatories and apply to the Court
by chamber summons for leave to administer those interrogatories to
the other side. If the parties agree that interrogatories may be
administered it is not necessary to apply to the Court.
The answers to interrogatories may be tendered as evidence at trial.
The rules relating to interrogatories are set out in RSC O 27 and DCR
r 47.
6.
How will I know how much money the other side is claiming?
A party to an action that claims damages is required by the DCR to
file and serve particulars of damages.
The particulars of damages must be filed within 60 days after the day
the defence (or if there is more than one defendant, the first
defence) is filed (DCR r 45C).
If the case is not a personal injuries action, the particulars of
damages must set out in detail any amount of money claimed, the
justification for claiming it, and how it is calculated.
If the case is a personal injuries action, the particulars of damages
must set out in detail the amount of money claimed for each different
head of damages. More information about the types of damages that may
be claimed is set out in DCR r45C(3).
An example set of particulars of damages is set out in Civil
Consolidated Practice Directions and Circulars.
8.7 How do I seek other orders to help me progress or defend the
action?
A party who wishes to obtain orders from the Court to assist it to
progress or defend the action may file a chamber summons. The chamber
summons must set out the orders sought by the party. Chamber summonses
are dealt with in section 9.1.
If an action has been listed by the Court for a directions hearing, a
party may seek specific directions from the Court. To do so, the party
must file and serve a minute of proposed orders on each other party,
at least 2 clear days prior to the directions hearing (DCR r34(2)).
Annexure L is a blank template and worked example for a minute of
proposed orders.
9. Applications to the court prior to trial
9.1 What is a chamber summons?
A chamber summons is an application by a party to the Court requesting
the Court to make certain orders in the action prior to the trial of
the action. Annexure I is a blank template and worked example for a
chamber summons.
The Court has published a series of standard orders on its website.
Parties are encouraged to use these standard orders in chamber
summonses.
In many cases, the party making the application will need to file and
serve an affidavit with the chamber summons. A blank template and
worked example of an affidavit can be found at Annexure H.
9.2 What is a directions hearing?
A directions hearing is a hearing listed by the Court for the purpose
of the Court making orders to progress the action. A directions
hearing may sometimes be referred to as a case management hearing. The
main rules governing directions hearings and case management hearings
are DRC r 24, r 26, r 27, and r 31-34.
In commercial matters, once the first appearance is filed, the parties
will be summoned to attend a case management hearing. In the District
Court, a “commercial matter” is any action commenced by writ where the
remedy sought is other than damages for personal injury. For more
information about commercial matters, see Civil Consolidated Practice
Directions and Circulars.
If an action has been listed by the Court for a directions hearing or
a case management hearing, a party may seek specific directions from
the Court. To do so, the party must file and serve a minute of
proposed orders on each other party, at least 2 clear days prior to
the directions hearing (DCR r34(2)).
Annexure L is a blank template and worked example for a minute of
proposed orders.
The Court has published a series of standard orders on its website.
Parties are encouraged to use these standard orders in any minute of
proposed orders for a directions hearing.
9.3 Can the parties agree on the orders sought?
The parties can agree on the orders sought from the Court and file a
minute of consent orders.
The process for filing consent orders is set out in Civil Consolidated
Practice Directions and Circulars.
Annexure M is a blank template and worked example for a minute of
consent orders.
9.4 Are there specific rules for building and engineering disputes?
There are specific rules for the provision of information in building
and engineering disputes.
DCR r 45D provides that a plaintiff in an action in which a claim is
made under a building or engineering contract must apply to the Court
for specific directions for the progress of the action. If a
directions hearing has already been listed, this application may be
made filing and serving a minute of proposed orders. If there is no
directions hearing listed, the application must be made by chamber
summons.
The application must be made within 75 days after the day the defence
(or if there is more than one defendant, the first defence) is filed.
The purpose of the directions hearing is to determine whether orders
should be made for the filing of a “Scott Schedule”. A Scott Schedule
is a statement of the issues of fact and law that the plaintiff
contends will need to be determined at trial in a tabular format.
For more information about Scott Schedules, see Civil Consolidated
Practice Directions and Circulars.
9.5 How do I get expert evidence before the Court?
As a general rule, the parties require the leave of the Court to be
allowed to adduce expert evidence at the trial of the action (DCR,
Part 5A).
The exception is that a party wishing to adduce medical evidence in an
action for personal injuries need not obtain leave, but must comply
with the disclosure obligations in DCR r47E.
The usual orders required from the Court to obtain leave to adduce
expert evidence are on the Court’s website. The orders are also set
out in Civil Consolidated Practice Directions and Circulars.
Persons giving expert evidence in the District Court must comply with
the Code of Conduct issued by the Court (DCR r 48). The Code of
Conduct is Annexure B to the DC Consolidated Practice Direction.
As part of the process for listing an action for trial, the parties
will be required to file and serve indexes of expert reports they are
going to rely on at trial.
For more information about expert evidence, see:
*
DCR r 45E, r 48
*
DC Practice Direction
*
Civil Consolidated Practice Directions and Circulars.
10. Case management
1.
What is case management?
Case management refers to the process by which the Court manages
actions to ensure that they are conducted and concluded efficiently,
economically and expeditiously, consistent with the ultimate aim of
the Court which is the effective delivery of justice outcomes.
The specific outcomes of case management in the District Court are to:
*
Promote the just resolution of litigation.
*
Facilitate the timely resolution of litigation at a cost
affordable to parties and proportionate to the value and
complexity of what is in issue.
*
Maximise the efficient use of scarce judicial and administrative
resources.
*
Ensure that, where a case proceeds to trial, the issues are
clearly defined, evidence is presented in an efficient manner and
the materials for the Judge are complete and well organised.
*
Avoid undue delay, and efficiently dispose of the business of the
Court.
*
Maintain public confidence in the administration of justice by the
District Court.
The case management regime of the Court is in two broad parts. The
first is that the DCR impose a number of obligations on parties to
serve, and in some cases file, documents prior to entry for trial, as
follows:
=====================================================================
Time
Party required to take action
Rule
Action
Within 60 days of first defence
Party claiming damages
45C
File and serve particulars of damages
Within 60 days of first defence
All parties
46
Give discovery
Within 75 days of first defence
Plaintiff in an action on building or engineering contract
45D
Apply for directions as to the filing of a Scott Schedule
Within 120 days of first defence
Plaintiff
37
File and serve Entry for Trial
The second is that the Court directs the parties to attend directions
hearings or case management hearings at which orders are made
progressing the action.
More information about case management in the Court is set out in
Civil Consolidated Practice Directions and Circulars.
10.2 How do I enter an action for trial?
========================================
Under the DCR, the action is to be entered for trial within 120 days
after first defence is filed. The date for Entry for Trial may be
extended by the Court, either by Consent Order, or on application by a
party.
======================================================================
An action is entered for trial by filing and serving a Form 1.
Annexure N is a blank template and worked example for a Form 1 Notice
of Entry for Trial. You have the responsibility of serving the Entry
of Trial on the defendant.
Prior to entering the action for trial, the plaintiff will need to
obtain the unavailable dates for the pre trial conference from the
other parties. This information is then inserted into the Form 1. More
information about pre trial conferences is set out in section 11.1.
If a party is not able to enter the action for trial, it should seek
an order from the Court extending the entry for trial milestone. This
can be sought by:
=====================================================================
(a) chamber summons;
(b) orders at a directions hearing; or
(c) a consent order.
10.3 What if I don’t enter the action for trial within the timetable?
=====================================================================
If the action is not entered for trial within the time allowed, the
Court will issue a Form 2 notice of default (DCR r 38).
===================================================================
If that form is not complied with, the action is taken to be inactive
and is placed on the Inactive Cases List (DCR r 44, r 44D). If that
occurs, the Court will send to the parties a notice advising that the
action has been placed on the Inactive Cases List, and of the effect
of DCR r 44E and r 44G.
=====================================================================
More information about cases on the Inactive Cases List is set out in
section 10.4.
=====================================================================
10.4 What is the Inactive Cases List?
The Inactive Cases List is a list of cases which are not being
progressed in accordance with the timetables set by the Court.
An action may be placed on the Inactive Cases List in one of three
ways:
a.
breach of the entry for trial milestone (DCR r 44, r 44D);
b.
by order of the Court (DCR r 44C, r 44D);
c.
if no document has been filed in the action for 12 months (DCR r
44A, r 44D).
Where an action is placed on the Inactive Cases List, the Court must
give all parties a notice that this has occurred and of the effect of
r 44E and r 44G. DCR r 44E is discussed below.
If a case is on the Inactive Cases List, only the following types of
documents may be lodged (DCR r 44E):
====================================================================
(aa) a Form 1AA memorandum of Appearance
a.
a Form 1 Entry for Trial (which may be lodged by any party – r
38(2));
==============================================================
b.
a consent order finalising the action;
======================================
(c) a summons for an order under Rule 44F(3);
c.
a summons for an order dismissing the action for want of
prosecution; or
========================================================
any document that relates to a document listed above.
=====================================================
Lodging a Memorandum of Appearance will not, in itself, change the
status of the action.
DCR r 44G provides that an action that is on the Inactive Cases List
for 6 months is taken to have been dismissed for want of prosecution.
Parties will be given notice if this occurs (but no warning that it is
about to occur).
Where an action is dismissed pursuant to r 44G, the parties may apply
to the Court for consequential orders, for example, as to costs or the
disposition of a counterclaim.
11. Settlement and mediation
11.1 What is a pre trial conference and when is it held?
A pre trial conference is a meeting between the parties at the Court’s
mediation suite, where with the assistance of a Registrar of the
Court, the parties try to settle the action. At a pre‑trial conference
the parties must, in good faith, attempt to settle the case or,
failing settlement, to resolve as many of the issues between them as
possible and to identify the issues to be tried (DRC r 40(3)).
A pre trial conference is held about a month or so after the action
has been entered for trial. Once the Form 1 Notice of Entry for Trial
has been lodged, a pre-trial conference will be listed and the
allocated date stated on the Entry of Trial document. If you are the
plaintiff you have the obligation to serve all the parties with a copy
of the Entry of Trial, so they are notified of the date of the
pre-trial conference.
Unless otherwise ordered, a party must attend a pre‑trial conference
in person or, if the party is a body corporate, by an agent who is
authorised by the body to conduct settlement negotiations and to
settle the case (DCR r 40(1)).
The pre trial conference is a confidential meeting. Evidence of
anything said or any admission made in the course of a pre‑trial
conference is not admissible at the trial of the case (DCR r 41(1)).
For more information about pre trial conferences, see:
*
DCR r 39 to r 41.
*
Civil Consolidated Practice Directions and Circulars.
2.
What happens at a pre trial conference?
Pre-trial conferences take place on Level 1, District Court Building,
500 Hay St, Perth.   Most pre-trial conferences are listed to start
between 9.30am and 11.00am.  There is a comfortable waiting area and
facilities for obtaining refreshments.  Smoking is not permitted in
the building.
Since a pre-trial conference might run for several hours, it is
necessary for long-stay parking to be utilised.   It is not
appropriate for children to be brought to a pre-trial conference, so
parties with young children should ensure that they have made suitable
child-care arrangements.
On the day of the conference, parties arriving without their lawyers
should attend at the reception desk, where the pre-trial conference
secretary will assist them. 
Though each pre-trial conference is unique, it is usual for the
parties (through their lawyers, unless they are acting in person) to
start by discussing matters relating to the action between
themselves.  Interview rooms are available for this process.
If the parties themselves are unable to reach a negotiated settlement,
the matter will usually proceed before a Registrar. Registrars of the
Court are independent judicial officers. They are qualified lawyers
with many years’ experience as mediators.
The Registrar will conduct the formal pre-trial conference as they
consider appropriate in the circumstances. The parties will be given
an opportunity to explain their individual positions and to give
details of any settlement proposals. It is not unusual for the
Registrar then to speak with each party (and their lawyers) privately.
If a settlement is achieved, documents consenting to judgment for the
agreed amount can often be signed on the spot.  In some cases, it will
be necessary for further paperwork to be processed.
Parties without legal representation should note that the Registrar
will explain any relevant procedural requirements. A Registrar cannot
give legal advice.
If an action cannot be settled at the pre-trial conference, it will
usually be adjourned to a listing conference for the allocation of
trial dates (as to which, see Part 12).
For more information about pre trial conferences, see:
*
DCR r 39 to r 41.
*
Consolidated Practice Directions and Circular.
2.
What is a mediation conference?
A mediation conference is a conference which the Court directs the
parties to attend for the purpose of attempting to settle an action
or, failing settlement, to resolve as many of the issues between them
as possible.
A mediation differs from a pre trial conference in that:
*
It will be listed for at least half a day.
*
It will be given a dedicated Registrar for its duration.
*
Registrars will use formal mediation techniques than are commonly
used with a pre trial conference.
If the parties wish, the Court can direct that the mediation take
place before a private mediator whom they choose and pay for.
For more information about mediations, see:
*
DCR r 35 to r 35A.
*
Civil Consolidated Practice Directions and Circulars.
2.
When will the Court list a mediation conference?
The Court will list a mediation conference in two broad circumstances.
The first is prior to entry for trial. This tends to occur in
commercial matters. As part of its case management oversight, the
Court will ask the parties at directions hearings whether the action
is ready to be listed for a mediation conference. If the parties are
ready, the Court will make the orders listing the mediation conference
at the directions hearing.
The second is at a pre trial conference. If the parties or the
Registrar are of the view that more time and attention is required for
the settlement discussions than is available at the pre trial
conference, then they can request the Court to list a mediation
conference at the pre trial conference.
For more information about mediations, see:
*
DCR r 35 to r 35A.
*
Civil Consolidated Practice Directions and Circulars.
12. Listing for trial
1.
How is an action listed for trial?
If the action does not settle at a pre trial conference or a mediation
conference conducted after the action has been entered for trial, the
action will be listed for a listing conference. This is a case
management hearing at which a Registrar of the Court will review the
action and, if it is ready, allocate trial dates.
The Court is usually able to offer trial dates within 2 to 4 months of
the date of the listing conference.
2.
What do I have to do to prepare for a listing conference?
The Registrar presiding at the pre trial conference may make
directions that need to be complied with prior to the listing
conference. If not, the DCR will specify what needs to be done to
prepare for the listing conference.
The following table sets out what the parties are required to do
before the listing conference.
Time when action to be taken
Party required to taken action
Source
Action required to be taken
At least 14 days before the day of the listing conference
Plaintiff
Rule 45E
File and serve index of reports of expert witnesses.
At least 7 days before the listing conference
Parties other than plaintiff
Rule 45E
File and serve index of reports of expert witnesses.
Listing conference
All parties
Rule 43(3a)
Tender pleadings certificate at Listing Conference
At the listing conference, the Registrar will ask questions about what
is going to happen at the trial of the action. This assists the
Registrar to determine how many days the trial is going to take and
what orders to make to ensure that the trial will be ready to commence
on the first day it is allocated. The information that the Registrar
will need to know includes:
*
the estimated length of the trial
*
the number of witnesses that the party intends to call
*
whether there are any special circumstances affecting the date or
time when any particular witness can be called; and
*
whether any particular witness will be attending from a long
distance or from outside the State
*
whether an interpreter will be needed
*
whether an audio link or a video link will be needed
*
whether the use of any technology would allow the trial to be
conducted more efficiently, economically or expeditiously.
12.3 Are there any fees for the trial?
Once trial dates have been allocated, there is a fee payable for the
hearing of the trial, based on the number of days required.
Unless otherwise ordered, these fees are payable by the plaintiff. If
the trial hearing fee is not paid by a stated date, the trial may be
automatically vacated. If a trial is vacated there may be costs orders
made against you.
The hearing fee is set out in Annexure A. In some cases, the hearing
fee may be waived, reduced or deferred, the process for which is also
set out in Part 16.
13. Trial
1.
What documents do I have to file before trial?
The DCR provide that certain documents need to be filed prior to
trial. The requirements of the DCR are set out in the following table:
Time when action to be taken
Party required to take action
Source
Action required to be taken
At least 42 days before the day listed for trial
Plaintiff
Rule 45F
Rule 45H
File and serve papers for the Judge.
File and serve outline of submissions.
At least 28 days before the day listed for trial
All parties
Rule 45G
Provide opportunity to inspect any document and objects to be tendered
at trial, for which an opportunity to inspect has not to date been
provided
At least 28 days before the day listed for trial
Parties other than plaintiff
Rule 45H
File and serve outline of submissions.
At least 21 days before first day of trial
Any party
Rule 45E
Request for qualifications of expert witnesses
At least 14 days prior to the hearing
Civil Practice Directions & Circulars
Send Video link Booking Request to the Court
At least 7 days prior to the hearing
Any party
Civil Practice Directions & Circulars
Send Courtroom Technology Booking Form to Court
At least 7 days before the day listed for trial
All parties
Rule 45I
File and serve a list of witnesses.
At least 5 working days before the day listed for trial
All parties
Civil Practice Directions & Circulars
File and serve Trial Bundle (if ordered)
This timetable may be altered by order of the Court.
More information on these requirements is set out in Civil
Consolidated Practice Directions and Circulars.
2.
How do I compel a witness to attend the trial?
At the trial of the action, each party may call witnesses. The witness
will be required to take an oath or affirmation.
Witnesses may be compelled to attend the trial by serving a subpoena
on them. Annexure O is a blank template and worked example for a
subpoena to attend trial.
Subpoenas must be served not less than 5 days prior to the date upon
which the witness in required to attend. Ideally, they should be
served as soon as a party is aware of the trial dates.
The subpoenas must be served personally. The same general rules that
apply to the service of writs, also apply to subpoenas. As a general
rule, it is advisable to have subpoenas served by a process server.
Witnesses who receive a subpoena have the right to apply to the Court
to have the subpoena set aside or alternatively to have a fee for
their attendance fixed prior to the trial date. The parties
subpoenaing witnesses are obliged to pay their expenses for attending
court. Care must therefore be exercised when considering whether or
not to subpoena individuals to Court.
At the time of service of the subpoena for a witness to attend Court,
a modest sum of money, called conduct money, must be given to the
witness. If the conduct money is not given to the witness, the witness
will have a good excuse if they do not attend the trial. The amount of
conduct money is a sum sufficient to cover the reasonable costs of the
witness travelling to and from the court, and accommodation and meals
if required.
For more information on subpoenas, see RSC O 36B.
3.
What happens at trial?
The trial is presided over by a District Court Judge. The Judge will
consider the evidence led by each party and then make a decision. In
most cases, the Judge will reserve their decision and produce written
reasons, usually within a period of 3 months following completion of
the trial.
The evidence led by the parties comprises:
*
The oral evidence of the parties
*
The oral evidence of other witnesses
*
The documents tendered by each party through their witnesses.
*
Any material admitted into evidence by consent of the parties. For
example, the parties may have prepared and tendered a bundle of
the medical reports of doctors whom neither party wishes to call
to testify as a witness or for cross examination.
14. Enforcing a judgment
1.
How do I enforce a judgment?
The law concerning the enforcement of judgments is to be found in the
Civil Judgments Enforcement Act 2004 (WA) (“CJEA”) and the Civil
Judgments Enforcement Regulations 2005 (WA) (“CJER”).
Most judgments in the District Court are for the payment of a sum of
money and the means by which a judgment can be enforced are:
*
a time for payment order made under CJEA s 32;
*
an instalment order made under CJEA s 33;
*
an earnings appropriation order made under CJEA s 35;
*
a debt appropriation order made under CJEA s 49;
*
a property (seizure and sale) order made under CJEA s 59; or
*
an order made under section 86.
In order to obtain an enforcement order the person entitled to the
judgment must apply to the Court in an approved form and the
application must state what form of order is being sought.
A link to the forms issued under the CJEA and the CJER can be found on
the Court’s website.
15. Costs
15.1 What is the difference between party and party costs and
solicitor and client costs?
Party and party costs are the costs which one party to a court action
my recover from another party.
Solicitor and client costs are the fees and disbursements charged by a
law practice to their client.
15.2 What types of costs orders will the court usually make?
At various stages during litigation the court may order costs to be
paid. Litigants in person are not entitled to legal fees. A costs
order in favour of a litigant in person will only entitle that person
to be reimbursed for some of the expenses incurred during the conduct
of the litigation. In most instances it is not possible for a costs
order made during the course of the litigation to be enforced until
the action is over.
A litigant in person can be ordered to pay the costs of other
litigants, either immediately or at the conclusion of the action.
The following tables sets out the common types of costs orders made in
the Court:
Order
Meaning
The costs of the application be costs in the cause.
The party ultimately successful in the action will recover the
costs
The costs of the application be the plaintiff's [defendant's]
costs in the cause.
Plaintiff [defendant] if successful in the action will be paid
his costs but not otherwise
The costs of the application be the plaintiff's [defendant's] in
any event.
Plaintiff [defendant] will be entitled to the costs whatever the
result of the action, the costs being taken into account in the
ultimate taxation
The application be dismissed with costs to be taxed and paid by
  to  .
Immediate payment of costs:
Costs reserved
The costs of the application be reserved to the trial judge or
further order.
No order as to costs.
No award for costs:
Each party do pay [or bear] his own costs.
Each party bears their own costs and cannot claim the costs from
the other side at the conclusion of the action
The costs incurred and thrown away by the amendment(s) and the
costs of any consequent amendment be the plaintiff's
[defendant's] in any event.
Costs wasted by the party who did not seek an amendment are to
be paid by the party seeking the amendment
15.3 Can the Court order me to pay the other party’s costs and fees?
As indicated in para 15.2 the Court can order costs to be paid. If you
are an
applicant (that is, you have brought an application in the Court) and
are unsuccessful, then the Court can order you pay the costs and fees
of the successful party,
For example, if you lodge an Appeal against a decision of a
Magistrate, or a Registrar of the Court, and a Judge dismisses your
Appeal, then the Judge can order that you pay the costs of the
successful party. The costs of the successful party can include their
solicitor and Barrister’s costs, as well as any filing fees payable.
It is usual that the costs payable to the successful party are
assessed on a Taxation (see para.15.4) but in some circumstances the
Court can fix the costs to be paid.
15.4 How do I get the Court to assess party and party costs?
The amount of legal costs to which a party is entitled is either fixed
by the court when ordering the costs or decided at a hearing. The
hearing is called a ‘Taxation’.
A Taxation is initiated by filing a document called a Bill of Costs,
which sets out the various tasks undertaken during the course of the
litigation and specifies a legal fee for each task, together with
lists of the various other expenses incurred during the litigation.
The court charges a fee for lodgement calculated on the amount claimed
in the Bill when the Bill of Costs is filed (Annexure A).
The Court then fixes a date for the taxation hearing. The party
lodging the Bill of Costs must serve it on the other party before the
hearing.
The Bill of Costs then comes before a Taxing Officer (a Registrar).
The Taxing Officer assesses the proper amount to be allowed for costs
and signs a certificate in the amount allowed. The certificate is
usually at the end of the Bill of Costs, and is not always a separate
certificate. The amount allowed by such a certificate can be enforced
as if it were a judgment of the court.
15.5 What do I do if I have a dispute with my lawyer about the bill of
costs?
With some limitations, a client has the right to have a Bill of Costs
rendered by a law practice reviewed by a taxing officer. Specifically,
under Part 10 Division 8 of the Legal Profession Act 2008 (the Act), a
client may make an application to a taxing officer for an assessment
of the whole or any part of a bill for legal costs which they have
received from their lawyer.
The application needs to be made to the Supreme Court.
More information about reviewing a Bill of Costs provided by a lawyer
can be found in the Supreme Court’s Consolidated Practice Direction,
Part 4.7.4.
16. Fees
16.1 What fees does the Court charge?
Fees are payable when lodging certain documents and taking certain
steps in proceedings. In particular, fees are payable when lodging a
writ, a chamber summons and an entry for trial. There are also fees
payable for the actual hearing days listed in court. Annexure A sets
out the current fees payable for District Court matters.
16.2 What if I can’t afford the Court fees?
Filing fees are reduced for:
a.
the holder of a health care card, a health benefit card, a
pensioner concession card or a Commonwealth seniors card; or
b.
the holder of any other card issued by Centrelink or the
Department of Veterans’ Affairs of the Commonwealth that certifies
entitlement to Commonwealth health concessions; or
c.
an individual who is in receipt of a youth training allowance, or
an AUSTUDY allowance, as defined in the Social Security Act 1991
(C’th) section 23(1); or
d.
an individual who is in receipt of benefits under the Commonwealth
student assistance scheme known as the ABSTUDY Scheme; or
e.
an individual who has been granted legal aid under the Legal Aid
Commission Act 1976 or a legal aid scheme or service established
under a Commonwealth, State or Territory law in respect of the
proceedings in relation to which a fee would otherwise be payable;
or;
f.
an individual who the Court or a registrar has directed is an
eligible individual under regulation 8A(1)(b).
To apply for eligibility under (f) above, or for a reduction or
deferral of other fees (e.g. hearing fees and transcription fees) on
the grounds of financial hardship, or in the interests of justice, a
party needs to file a “Form 2 – Application to reduce fee” and lodge
it with the District Court Registry.
Any person under the age of 18 is not required to pay any fees.
ANNEXURE A
DISTRICT COURT FEE CHART – As of 1 July 2021
--------------------------------------------
Item
Description
Column A
Column B
Column C
Fee for individual or eligible entity
Fee for entity
Fee for eligible individual
$
$
$
1
Filing Writ (On filing any originating process by which a cause,
matter or other proceeding in the court is commenced, other than
proceedings of the kind referred to in Item 2, 3, 4, 5 or 9)
(to include $3.00 under Suitors Fund Act) (Also includes:
*
Compromises
*
Criminal Property Confiscation Act)
$1,094.00
$2,132.00
$100.00
2
On filing an application under the Road Traffic (Authorisation to
Drive) Act 2008 section 24(1) for the removal of a disqualification or
under section 27 of that Act for an extraordinary licence
$263.00
N/A
$79.00
3
On filing an application for an order made under the Spent Convictions
Act 1988, section 6(1)
$159.50
N/A
$47.90
4
On filing -
4(a)
On filing a counterclaim
$1,094.00
$2,132.00
$100.00
4(b)
On filing a third party notice
$1,094.00
$2,132.00
$100.00
4(c)
An application -
4(c)(i)
to extend a period of time fixed by law, including an application to
extend time before proceedings are commenced
$411.00
$710.00
$100.00
4(c)(ii)
to limit a period of time within which proceedings may be taken
$411.00
$710.00
$100.00
4(c)(iii)
for leave to serve a writ or notice of a writ out of jurisdiction
$411.00
$710.00
$100.00
4(d)
for leave to appeal
NIL
NIL
NIL
4(e)
Any other application for which no fee has been provided in this
Schedule
$411.00
$710.00
$100.00
5
Commencing an Appeal in the District Court (including Registrars'
Appeals):
5(a)
Filing an Appeal Notice (including half day hearing) *
$620.00
$1,604.00
$100.00
5(b)
Each additional half day allocated for hearing an Appeal *
$480.00
$1,249.00
$100.00
6
Entry for Hearing a cause or matter (i.e. Entry for Trial or
Notice of Appointment to Hear an Originating Summons) *
$1,094.00
$2,132.00
$100.00
7
Allocation of a hearing date, for each day allocated *
$960.00
$2,500.00
$100.00
8
Daily hearing fee before a court constituted by a judge *
$960.00
$2,500.00
$100.00
9
On filing, before a judge or registrar in chambers:
9(a)
Interlocutory application or summons or motion returnable *
$274.00
$535.00
$82.00
9(b)
Application for assessment of damages other than in an action for
personal injury *
$274.00
$535.00
$82.00
9(c)
Application for summary judgment *
$274.00
$535.00
$82.00
10
If the hearing of a matter to which item 8 applies is listed for more
than one (1) day and proceeds for more than the number of days listed,
the fee prescribed in item 8 is payable for each additional day or
part day of hearing *
See item 8
See item 8
See item 8
11
On an appointment to tax a bill of costs in a cause or matter or under
the Commercial Arbitration Act 2012
11(a)
Lodgement fee *
$274.00
$535.00
$82.00
11(b)
In addition to the lodgement fee, a taxing fee at the rate of 2.5% *
2.50%
2.50%
0.00%
12
Search fee (any record or proceeding) *
$55.50
$55.50
$16.65
13
For provision of searchable information to approved recipients under
regulation 11A (District Court (Fees) Regulations 2002
13(a)
Search – Electronic per action or matter provided to recipient *
$2.45
$2.45
$0.75
13(b)
Search – Electronic – Annual Fee *
$2,515.00
$2,515.00
$100.00
14(a)
On an application for the production of records or documents that are
required to he produced to any court, tribunal, arbitrator or umpire
$81.50
$81.50
$24.40
14(b)
If an officer is required to attend at any court or place out of the
District Court Building, the officer’s reasonable expenses and, in
addition for each hour when the officer is necessarily absent from the
officer’s office
$122.50
$122.50
$36.80
15(a)
For a copy of a document of any kind or an exhibit, including marking
as an office copy if required, for each page or part thereof
$2.30
$2.30
$0.70
15(b)
For a copy of reasons for judgment -
15(b)(i)
For each copy issued to a person not a party to the proceedings and
for each copy in excess of 1 copy issued to a party to the proceedings
$19.30
$19.30
$5.80
15(b)(ii)
For each copy consisting of 10 or more pages an additional fee per
page
$2.45
$2.45
$0.75
15(c)
For certifying under seal that a document is a true copy, an
additional fee of
$26.70
$26.70
$8.00
15(d)
For a certification under the hand of a Registrar
$51.00
$51.00
$15.30
16(a)
For the provision of a transcript, or part of a transcript -
16(a)(i)
PROVIDED WITHIN 1 DAY after the day on which the fee is paid
$25.60 plus $10.55 per page
$25.60 plus $21.10 per page
$7.70 plus $3.15 per page
16(a)(ii)
PROVIDED WITHIN 2 DAYS after the day on which the fee is paid
$25.60 plus $9.70 per page
$25.60 plus $19.30 per page
$7.70 plus $2.90 per page
16(a)(iii)
PROVIDED WITHIN 4 DAYS after the day on which the fee is paid
$25.60 plus $9.10 per page
$25.60 plus $18.45 per page
$7.70 plus $2.75 per page
16(a)(iv)
PROVIDED WITHIN 7 DAYS after the day on which the fee is paid
$25.60 plus $8.80 per page
$25.60 plus $17.50 per page
$7.70 plus $2.65 per page
16(a)(v)
PROVIDED WITHIN 14 DAYS after the day on which the fee is paid
$25.60 plus $7.45 per page
$25.60 plus $14.95 per page
$7.70 plus $2.25 per page
16(a)(vi)
For the provision of a transcript, or part of a transcript provided on
a running basis (i.e. periodically throughout or following the day of
the proceedings)
$25.60 plus $11.25 per page
$25.60 plus $22.50 per page
$7.70 plus $3.40 per page
16(b)
For the provision of a copy of a transcript, or part of a transcript,
where the transcript or part has already been provided to the person
requesting the copy -
16(b)(i)
Electronic format
$26.70 per copy
$26.70 per copy
$8.00 per copy
16(b)(ii)
Paper copy
$2.65 per page
$2.65 per page
$0.80 per page
CIVIL JUDGMENT ENFORCEMENTS REGISTRATION FEES (Schedule)
1
For an application or request under the Act -
1(a)
A judgment not exceeding $10,000.00 *
$134.50
$202.00
$40.40
1(b)
All other judgments *
$217.00
$327.00
$65.00
2
Registering a judgment in a court under the Service and Execution of
Process Act 1992 (Commonwealth) section 105(1)
$114.00
$151.00
$34.20
ANNEXURE B
Form 2
Application to reduce fee
In the District Court of Western Australia
No.         of  2    
Plaintiff/Appellant*:
(*strike out word that is not applicable)
Defendant/Respondent*:
(*strike out word that is not applicable)
Fee type for which request is made
Application fee
Hearing fee
Transcription fee
Other (please describe below)
Concession Card Holder
Yes No
Pension Concession Card No:
Health Care Card No:
Grant of Legal Aid under a legal aid scheme or service
Yes No
Applicant Details:
Full name:
Please indicate your party type:
Individual Entity
Address:
Date of birth:
If you are applying for a fee reduction because of financial hardship
or in the interests of justice, please give supporting reasons for
your request (attach a separate page if required). If the reasons
include financial hardship you must complete the information on the
following pages.
I certify that the above information and disclosures in this form are
true and correct.
Applicant’s Signature
Dated:
*Note: A person who makes a statement or representation in this
application that the person knows or has reason to believe is false or
misleading in a material particular commits an offence under District
Court (Fees) Regulations 2002 regulation 8B(1).
COURT SEAL
Financial details: applicant who is an individual
If the reasons for application include financial hardship, the
following sections of the form must be provided by the applicant if
the applicant is an individual.
Occupation:
Employer:
Employer’s Address:
Marital Status:
single
married
partner
de facto
separated
Dependants:
dependant wife/husband/partner/de facto
____(number of) dependant children
income and financial asset details
Income / financial assets
(net)
Self
Partner
Total
Wage / salary / benefit
$
$
$
Money in financial institution
$
$
$
Cash
$
$
$
Income from investments
$
$
$
Other income
$
$
$
Money loaned and to be repaid
$
$
$
Total
$
$
$
EXPENDITURE DETAILS
Rent / board
$
$
$
Mortgage payment
$
$
$
Maintenance for dependants
$
$
$
Food
$
$
$
Utilities (gas / electricity)
$
$
$
Telephone
$
$
$
Water
$
$
$
Rates and taxes
$
$
$
Court orders
$
$
$
Credit card/s
$
$
$
Other debts (provide details)
$
$
$
TOTAL
$
$
$
TOTAL
INCOME
$
TOTAL
EXPENDITURE
$
ASSETS
VALUE
House or other property (provide addresses)
$
Motor Vehicles
(car, utility, motorcycle, truck etc.)
1
Year:
Make:
Model:
Registration Number:
$
2
Year:
Make:
Model:
Registration Number:
$
Other assets (provide details)
$
TOTAL ASSET VALUE
$
Home Contents (please complete appropriate box where applicable)
Television
$
DVD Player
$
Computers
$
Other electronic devices
$
Dishwasher
$
Microwave
$
Furniture
$
Collection of coins, stamps etc.
$
Other collectables
$
Other assets
$
Interests in business or company
$
Liabilities
TOTAL
Mortgage to:
$
Other to:
$
Time to pay Order:
$
Total Liabilities
$
Financial Detail: Applicant who is not an individual
If the reasons for application include hardship, the following
sections of the form must be provided by the applicant if the
applicant is an entity.
Income
$
Assets
$
Liabilities
$
Total
$
ANNEXURE C
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No1 of
B E T W E E N
Plaintiff
-and-
Defendant
WRIT OF SUMMONS
Date of document: __________________
Date of filing: __________________
Filed on behalf of: Plaintiff
Prepared by:
Party: Plaintiff
Address: _____________________________ Telephone: ______________
_____________________________ Facsimile: _______________
Email: _____________________________ Reference: ______________
____________________________
TO: The Defendant
OF:2 ___________________________
___________________________
in the State of Western Australia3
You are commanded that, within ten (10) days4 after the service of
this writ on you, exclusive of the day of such service, you cause an
appearance to be entered for you in the District Court in an action at
the suit of the abovenamed plaintiff; and take notice that in default
of your so doing the plaintiff may proceed therein and judgment may be
given in your absence.
Witness: HER HONOUR JUDGE JULIE ANNE WAGER, Chief Judge of the
District Court of Western Australia the5 ___________ of _____________
20__ .
___________
Note: This writ may not be served later than 12 calendar months
beginning with the above date unless renewed by order of the Court.
A defendant may appear to this writ by entering an appearance either
personally or by solicitor at the Registry of the District Court, 500
Hay Street Perth.
INDORSEMENT OF CLAIM6
The plaintiff’s claim is for
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
Place of trial: Perth
If7, within the time allowed for entering an appearance, the defendant
pays to the plaintiff or to his solicitor or into Court the amount
claimed, together with the sum of $8 being the costs incurred by the
plaintiff up to and including the service of this writ, further
proceedings will be stayed: Provided that the defendant may
notwithstanding the payment of such costs have the same taxed by the
taxing officer of the Court and if more than one sixth be disallowed
the plaintiff shall pay the costs of taxation.
This writ was issued by or on behalf of the plaintiff.
The plaintiff’s geographical address is:
__________________________________
__________________________________
The plaintiff’s service details are:
Address: _____________________________ Telephone: ______________
_____________________________ Facsimile: _______________
Email: _____________________________ Reference: _______________
Indorsement as to service
This writ was served by me at
on [the defendant or one of the defendants] on the day of 20 .
Indorsed the day of 20 .
(Signed)
ANNEXURE C – WORKED EXAMPLE
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No of
B E T W E E N
MARY SMITH Plaintiff
-and-
ALLAN GREEN Defendant
­­­­­­­­­­­­­­­­­WRIT OF SUMMONS
Date of document: 25 January2011
Date of filing: 25 January 2011
Filed on behalf of: Plaintiff
Prepared by:
Party: Plaintiff
Address: 27 Astor Place Telephone: 9332 7374
MORLEY WA 6020 Facsimile: 9332 7444
Email: [email protected] Reference:
____________________________
TO: The Defendant
OF:9 31 The Rise
DOUBLEVIEW
in the State of Western Australia10
You are commanded that, within ten (10) days after the service of this
writ on you, exclusive of the day of such service, you cause an
appearance to be entered for you in the District Court in an action at
the suit of the abovenamed plaintiff; and take notice that in default
of your so doing the plaintiff may proceed therein and judgment may be
given in your absence.
Witness: HER HONOUR JUDGE JULIE ANNE WAGER, Chief Judge of the
District Court of Western Australia the11 ___________ of _____________
20__ .
___________
Note: This writ may not be served later than 12 calendar months
beginning with the above date unless renewed by order of the Court.
A defendant may appear to this writ by entering an appearance either
personally or by solicitor at the Registry of the District Court, 500
Hay Street Perth.
INDORSEMENT OF CLAIM
The plaintiff’s claim is for is for repayment of $100,000, together
with interest of $12,000 as at the date of the writ, being money due
and owing by the plaintiff to the defendant pursuant to a loan
agreement dated 1 April 2009.
Place of trial: Perth
If, within the time allowed for entering an appearance, the defendant
pays to the plaintiff or to his solicitor or into Court the amount
claimed, together with the sum of $12 being the costs incurred by the
plaintiff up to and including the service of this writ, further
proceedings will be stayed: Provided that the defendant may
notwithstanding the payment of such costs have the same taxed by the
taxing officer of the Court and if more than one sixth be disallowed
the plaintiff shall pay the costs of taxation.
This writ was issued by or on behalf of the plaintiff.
The plaintiff’s geographical address is: 27 Astor Place, MORLEY, WA
6020.
The plaintiff’s service details are:
Address: 27 Astor Place Telephone: 9332 7374
MORLEY WA 6020 Facsimile: 9332 7444
Email: [email protected] Reference:
Indorsement as to service
This writ was served by me at
on [the defendant or one of the defendants] on the day of 20 .
Indorsed the day of 20 .
(Signed)
ANNEXURE D
1AA. Memorandum of appearance (r. 22A)
District Court of Western Australia
Held at Perth 1
Action No:
Memorandum of appearance
Parties
Plaintiff
Defendant
Enter an appearance for the *Defendant/Third party/
*delete inapplicable or add further party title
Date of filing
Disclosure pursuant to RSC Order 9A
Identity of any person who is an interested non‑party
(If applicable: see Rules of the Supreme Court 1971 Order 9A rule 2
and District Court Rules 2005 rule 22A(3))
Service and contact details
Geographical address of party
(Must be provided unless otherwise ordered by the Court: see Rules of
the Supreme Court 1971 Order 71A rule 2 and District Court Rules 2005
rule 22C)
Name of lawyer
(If one has been appointed)
Postal address for service of documents
(Must be provided)
Email address
(Optional — if provided, may be used for service of documents)
Fax number
(Optional — if provided, may be used for service of documents)
Telephone number
Reference
Signature of party or lawyer
Party/lawyer
Date of signing:
ANNEXURE D – WORKED EXAMPLE
1AA. Memorandum of appearance (r. 22A)
District Court of Western Australia
Held at Perth 1
Action No: 123 of 2011
Memorandum of appearance
Parties
Mary Smith Plaintiff
Allan Green Defendant
Enter an appearance for the Defendant
Date of filing
Disclosure pursuant to RSC Order 9A
Identity of any person who is an interested non‑party
(If applicable: see Rules of the Supreme Court 1971 Order 9A rule 2
and District Court Rules 2005 rule 22A(3))
Service and contact details
Geographical address of party
(Must be provided unless otherwise ordered by the Court: see Rules of
the Supreme Court 1971 Order 71A rule 2 and District Court Rules 2005
rule 22C)
31 The Rise
Doubleview WA 6018
Name of lawyer
(If one has been appointed)
Postal address for service of documents
(Must be provided)
31 The Rise
Doubleview WA 6018
Email address
(Optional — if provided, may be used for service of documents)
Fax number
(Optional — if provided, may be used for service of documents)
Telephone number
9332 7374
Reference
Allan Green
Signature of party or lawyer
Allan Green
Party/lawyer
Date of signing:
30 January 2011
ANNEXURE E
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No of
B E T W E E N
Plaintiff
-and-
Defendant
_____________________________________________________________________
STATEMENT OF CLAIM
_____________________________________________________________________
Date of document: __________________
Date of filing: __________________
Filed on behalf of: Plaintiff
Prepared by:
Party: Plaintiff
Address: _____________________________ Telephone: ______________
_____________________________ Facsimile: _______________
Email: _____________________________ Reference: ______________
___________________________________
1.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
2.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
3.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
4.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
5.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
6.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
7.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
8.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
9.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
10.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
11.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
___________________
Plaintiff13
ANNEXURE E – WORKED EXAMPLE
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No 123 of 2011
B E T W E E N
MARY SMITH Plaintiff
-and-
ALLAN GREEN Defendant
­­­­­­­­­­­­­­­­­STATEMENT OF CLAIM
Date of document: 19 April 2011
Date of filing: 19 April 2011
Filed on behalf of: Plaintiff
Prepared by:
Party: Plaintiff
Address: 27 Astor Place Telephone: 9332 7374
MORLEY WA 6020 Facsimile: 9332 7444
Email: [email protected] Reference:
___________________________________
12.
The plaintiff is a self funded retiree.
13.
At all material times the defendant was the proprietor of a café
known as The Coffee Spot at the Waterford Shopping Centre, at the
corner of Kent Street and Manning Road in Waterford.
14.
By agreement dated 1 April 2009 the plaintiff agreed to lend and
the defendant agreed to borrow $100,000 on terms that:
i.
the money would be used to refurbish The Coffee Spot;
ii.
interest would be paid at 6% per annum, monthly in arrears,
with the first payment to be made on 1 May 2009;
iii.
the loan would be repayable on demand; and
iv.
the plaintiff would not demand repayment until after 31
December 2009.
Particulars
The loan agreement is set out in an email dated 1 April 2009 from the
plaintiff to the defendant and the defendant’s email in response of
the same date.
4. On 2 April 2009, the plaintiff advanced to the defendant the sum of
$100,000 pursuant to the loan.
5. The defendant failed to pay the interest due on the loan in the
amount of $1800, as follows:
(a) 31 December 2009 - $600;
(b) 31 January 2010 - $600; and
(c) 28 February 2010 - $600.
6.
By notice dated 1 March 2010 the plaintiff terminated the loan and
demanded repayment of all principal and outstanding interest.
Particulars
The notice is a letter dated 1 March 2010 sent by email on that date
from the plaintiff to the defendant.
6.
Despite demand, the defendant has not paid any money to the
plaintiff in response to the demand.
And the plaintiff claims:
a.
$106,000;
b.
interest pursuant to Supreme Court Act 1935 (WA) s35 from 1 March
2010; and
c.
costs.
Mary Smith
___________________
Plaintiff
ANNEXURE F
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No of
B E T W E E N
Plaintiff
-and-
Defendant
_____________________________________________________________________
DEFENCE
_____________________________________________________________________
Date of document: __________________
Date of filing: __________________
Filed on behalf of: Defendant
Prepared by:
Party: Defendant
Address: _____________________________ Telephone: ______________
_____________________________ Facsimile: _______________
Email: _____________________________ Reference: ______________
___________________________________
15.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
16.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
17.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
18.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
19.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
20.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
21.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
22.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
23.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
24.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
25.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
___________________
Defendant14
ANNEXURE F – WORKED EXAMPLE
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No 123 of 2011
B E T W E E N
MARY SMITH Plaintiff
-and-
ALLAN GREEN Defendant
_____________________________________________________________________
DEFENCE
_____________________________________________________________________
Date of document: 5 May 2011
Date of filing: 5 May 2011
Filed on behalf of: Defendant
Prepared by:
Party: Defendant
Address: 31 The Rise Telephone: 6162 1234
Doubleview WA 6018 Facsimile: 6162 1234
Email: [email protected] Reference: ______________
___________________________________
26.
The defendant admits paragraphs 1 and 2 of the statement of claim.
27.
The defendant denies paragraph 3 of the statement of claim.
28.
During the course of February and March 2009 the defendant was
seeking an investor in The Coffee Spot.
Particulars
Advertisements were placed in The West Australian Newspaper on 2 and
16 February 2009 and 3 and 17 March 2009.
29.
By oral agreement dated 2 April 2009 the plaintiff agreed to
invest $100,000 in The Coffee Spot on terms that:
i.
the plaintiff would become a partner in The Coffee Spot,
having a 40% interest in the business;
ii.
the money would be used to refurbish The Coffee Spot;
iii.
between 2 April 2009 and 31 December 2009, the plaintiff
would make a drawing from the business equivalent to 6% per
annum, monthly in arrears, of the money invested, with the
first payment to be made on 1 May 2009; and
iv.
the defendant could draw a wage from The Coffee Spot at the
usual rate for a café manager;
v.
once the amounts in paragraphs (c) and (d) were taken into
account, the plaintiff would be entitled to 60%, and the
defendant 40%, of the net after tax profits of The Coffee
Spot.
Particulars
The investment agreement was made in a conversation between the
plaintiff and the defendant at The Coffee Shop on 2 April 2009.
5. Save to admit that on 2 April 2009, the plaintiff advanced to the
defendant the sum of $100,000, paragraph 4 of the statement of claim
is denied.
6. Pursuant to the agreement in paragraph 4, the $100,000 was used to
refurbish The Coffee Spot.
7. Paragraph 5 of the statement of claim is denied.
8. During the period from 2 April 2009 and 31 December 2009, the
plaintiff drew an amount of $600 per month from The Coffee Spot.
9.
The Coffee Spot had a net after tax profit of $1,000 for the
period from 2 April 2009 to 31 December 2009, of which the
plaintiff received $400 and the defendant $600.
10.
In the period 1 January 2010 to 30 June 2010 The Coffee Spot did
not make any net profit after tax.
9.
Save to admit that the defendant received a document from the
plaintiff entitled “Demand for Repayment” on or about 1 March
2010, the defendant denies paragraphs 6 and 7 of the statement of
claim.
Counterclaim
9.
The defendant repeats paragraphs 1 to 11 of the defence.
9.
The relationship between the plaintiff and the defendant as
partners has irrevocably broken down.
And the defendant counter claims:
d.
an order that the partnership be dissolved;
e.
costs.
Allan Green ________________________
Defendant
ANNEXURE G
32. Default judgment for liquidated demand (O. 13 r. 2; O. 42 r. 1)
IN THE SUPREME COURT OF WESTERN AUSTRALIA
No: .............. of 20 .......
BETWEEN:
AB Plaintiff,
and
CD Defendant.
DEFAULT JUDGMENT FOR LIQUIDATED DEMAND
Judicial officer:
Date of order:
THE COURT ORDERS THAT:
The defendant pay the plaintiff —
(a) $[insert amount]; and
(b) $[insert amount] costs [or costs to be taxed].
The above costs have been taxed and allowed at $[insert amount]
as appears by the Taxing Officer’s certificate dated [insert
date].
BY THE COURT
REGISTRAR
NOTICE TO DEFENDANT
[Name of plaintiff] has obtained this judgment against you. This
notice contains important information about your rights. Please
read it carefully.
If you believe that [name of plaintiff] was not entitled to
obtain this judgment against you or if you believe that [name of
plaintiff] should not be allowed to enforce this judgment
against you then —
• you may apply to the Court for an order setting aside or
varying the judgment under the Rules of the Supreme Court 1971
Order 13 rule 14; or
• you may apply to the Court for an order suspending the
enforcement of all or part of the judgment under the Civil
Judgments Enforcement Act 2004 section 15.
You should seek legal advice before applying to the Court for
orders setting aside or varying the judgment, or suspending the
enforcement of all or part of the judgment, because these
applications may be complex and you may be ordered to pay costs
to [name of plaintiff] if your application does not succeed. The
Court cannot suspend the enforcement of all or part of a
judgment unless there are special circumstances.
CONTACT DETAILS
The name and address of the law firm representing the plaintiff
is: [insert name and address].
If you want to contact the lawyer for the plaintiff, you should
call [insert name] on [insert number] or email them at [insert
email address].
ANNEXURE H
District Court of Western Australia
Civ No:
Affidavit
Parties
_____________________________ Plaintiff
_____________________________ Defendant
Person making affidavit
Date made
Purpose
Filed by
Index
Contents
Page
1. Affidavit of ________________
2. Attachment A
____________________________
3. Attachment B
____________________________
4. Attachment C
____________________________
5. Attachment D
____________________________
6. Attachment E
____________________________
7. Attachment F
I, _________________________________ of
______________________________,
________________________________, being duly sworn MAKE OATH AND SAY
as follows –
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
This affidavit is sworn by ____________
__________________________________
in the presence of an authorised witness at
____________________ on ____________
_______________________
Person swearing affidavit
_______________________
Authorised witness
ANNEXURE H – WORKED EXAMPLE
District Court of Western Australia
Civ No: 123 of 2011
Affidavit
Parties
MARY SMITH Plaintiff
-and-
ALLAN GREEN Defendant
Person making affidavit
Edward Martin
Date made
25 January 2011
Purpose
In support of application for orders for substituted service
Filed by
The plaintiff
Index
Contents
Page
1. Affidavit of Edward Martin
2
I, Edward Smith of 123 Rockhamptom Drive, Safety Bay, WA, 6169,
Process server, being duly sworn MAKE OATH AND SAY as follows –
1.
I am a process server operating under the business name Ace
Process Servers.
2.
On 1 December 2010 I received an instruction from the plaintiff to
serve the writ of summons in this action on the defendant. I was
informed by the plaintiff that the defendant resides at 31 The
Rise Double View.
3.
On 3 December 2010 I attended 31 The Rise Doubleview. Upon knowing
at the door, it was answered by a woman. The woman identified
herself as Myra Green, Allan Green’s sister. I asked if Allan
Green lived at this address. The woman answered that he does from
time to time, but that he was working away as a geologist. I asked
where he was working. The woman refused to answer. I left Ms Green
a copy of my business card and asked her it give it to Allan
Green.
4.
On 4, 17 and 23 December 2010 I attended 31 The Rise Doubleview. I
spoke to Ms Green on each occasion in similar terms to the
conversation in paragraph 4.
This affidavit is sworn by Edward Smith
in the presence of an authorised witness at
Rockingham on 25 January 2011.
M Citizen
_______________________
E Chew
_______________________
Authorised witness
Edward Chew
Justice of the Peace
ANNEXURE I
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No of
B E T W E E N
Plaintiff
-and-
Defendant
_____________________________________________________________________
CHAMBER SUMMONS
FOR ORDERS TO15 _____________________________________
_____________________________________________________________________
Date of document: __________________
Date of filing: __________________
Filed on behalf of: Plaintiff / Defendant16
Prepared by:
Party: Plaintiff / Defendant17
Address: _____________________________ Telephone: ______________
_____________________________ Facsimile: _______________
Email: _____________________________ Reference: ______________
___________________________________
Let all parties concerned attend the Registrar in chambers on day the
day of , 20 , at o’clock in the noon, on the hearing of an application
on the part of the plaintiff / defendant18 for orders that:
30.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
31.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
32.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
33.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
34.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
TO: Plaintiff/ defendant19
ADDRESS:20 ___________________
___________________
___________________
ANNEXURE I – WORKED EXAMPLE
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No 123 of 2011
B E T W E E N
MARY SMITH Plaintiff
-and-
ALLAN GREEN Defendant
EX PARTE CHAMBER SUMMONS
FOR ORDERS FOR SUBSTITUED SERVICE
Date of document: 25 January2011
Date of filing: 25 January 2011
Filed on behalf of: Plaintiff
Prepared by:
Party: Plaintiff
Address: 27 Astor Place Telephone: 9332 7374
MORLEY WA 6020 Facsimile: 9332 7444
Email: [email protected] Reference:
___________________________________
Let all parties concerned attend the Registrar in chambers on day the
day of , 20 , at o’clock in the noon, on the hearing of an application
on the part of the plaintiff for orders that:
1. personal service of a copy of this order and a copy of the writ of
summons in the action upon Myra Greeen, 31 The Rise, Doubleview, with
a written request that she draw the documents to the attention of the
defendant, shall be good and sufficient service of the writ of summons
upon the defendant;
2. the defendant have 28 days after publication service within which
to file an appearance; and
3. the defendant pay the costs of this application in any event.
ANNEXURE J
District Court of Western Australia
No:
List of documents
____________________________________ Plaintiff
____________________________________ Defendant
and its practitioner.
This list is served in compliance with
_______________________________________________________
Part 1A of this list lists the documents relating to the matters in
question in this action that are in the possession, custody or power
of the plaintiff/ defendant*.
Part 1B of this list lists each of those documents listed in Part 1A
that the plaintiff/ defendant* objects to producing and the grounds
for objecting.
Part 2A of this list lists the documents relating to the matters in
question in this action that were, but no longer are, in the
possession, custody or power of the plaintiff/ defendant*.
Part 2B of this list, for each document listed in Part 2A, states —
• the date on which it was last in the plaintiff’s/ defendant’s*
possession, custody or power; and
• what has become of it; and
• who currently has possession or custody of or power over it.
The plaintiff/ defendant* has made all reasonable enquiries, including
of its employees and agents, to identify all documents of any
description whatever relating to any matter in question in this action
that are or were in its possession, custody or power.
Neither the plaintiff/ defendant*, nor its practitioner, nor any other
person on its behalf, has now, or ever had, possession or custody of
or power over any document of any description whatever relating to any
matter in question in this action, other than the documents listed in
Parts 1A and 2A of this list.
The documents in this list, other than those listed in Parts 1B and
2A, may be inspected at —
_______________________________________________________
on _____________________________________________________
I certify that the statements in this document are true.
Date:
This list and its attachments were served on
_______________________ on _________________________
by _________________________________________________
Signed: Date:
ANNEXURE J – WORKED EXAMPLE
District Court of Western Australia
No: 123 of 2011
List of documents
MARY SMITH Plaintiff
-and-
ALLAN GREEN Defendant
The defendant
The plaintiff
This list is served in compliance with District Court Rules 2005 (WA)
rule 46
Part 1A of this list lists the documents relating to the matters in
question in this action that are in the possession, custody or power
of the plaintiff.
Part 1B of this list lists each of those documents listed in Part 1A
that the plaintiff objects to producing and the grounds for objecting.
Part 2A of this list lists the documents relating to the matters in
question in this action that were, but no longer are, in the
possession, custody or power of the plaintiff.
Part 2B of this list, for each document listed in Part 2A, states —
• the date on which it was last in the plaintiff’s possession, custody
or power; and
• what has become of it; and
• who currently has possession or custody of or power over it.
The plaintiff has made all reasonable enquiries, including of its
employees and agents, to identify all documents of any description
whatever relating to any matter in question in this action that are or
were in its possession, custody or power.
Neither the plaintiff, nor its practitioner, nor any other person on
its behalf, has now, or ever had, possession or custody of or power
over any document of any description whatever relating to any matter
in question in this action, other than the documents listed in
Parts 1A and 2A of this list.
The documents in this list, other than those listed in Parts 1B
and 2A, may be inspected at 27 Astor Place, Morley, WA, by
appointment.
I certify that the statements in this document are true.
Date: 19 April 2011
This list and its attachments were served on Allan Green on 20 April
2011 Allan Green byRodney Lewis, Process Server
Signed: Rodney Lewis Date: 20 April 2011
ANNEXURE K
District Court of Western Australia
Civ No:
Affidavit
Parties
_____________________________ Plaintiff
_____________________________ Defendant
Person making affidavit
Date made
Purpose
Affidavit Verifying List of Discoverable Document
Filed by
Plaintiff/ Defendant *
Index
Contents
Page
1. Affidavit of _______________
2.
Attachment A - List of Discoverable documents
I, the abovenamed plaintiff / defendant*,
_________________________________, make oath and say as follows: —
1. The list of documents produced to me and marked “Attachment A” is
the list of the documents relating to the matters in question in this
action that are or have been in the possession, custody or power of
the plaintiff / defendant*
2. The documents listed in Part 1A of Attachment A are the documents
relating to the matters in question in this action that are in the
possession, custody or power of the plaintiff / defendant*.
3. The plaintiff / defendant objects to producing those of the
documents in Part 1A of Attachment A identified in Part 1B on the
grounds stated in Part 1B.
4. The documents listed in Part 2A of Attachment A are the documents
relating to the matters in question in this action that were, but no
longer are, in the possession, custody or power of the plaintiff /
defendant.
5. The statements in Part 2B of Attachment A about the documents
listed in Part 2A are true.
6. The plaintiff / defendant* has made all reasonable enquiries,
including of its employees and agents, to identify all documents of
any description whatever relating to any matter in question in this
action that are or were in its possession, custody or power.
7. To the best of my knowledge, information and belief, neither the
plaintiff / defendant*, nor its practitioner, nor any other person on
its behalf, has now, or ever had possession, custody or power over any
document of any description whatever relating to any matter in
question in this action, other than the documents listed in Parts 1A
and 2A of Attachment A.
This affidavit is sworn by ____________
__________________________________
in the presence of an authorised witness at
____________________ on ____________
_______________________
Person swearing affidavit
_______________________
Authorised witness
ANNEXURE K – WORKED EXAMPLE
District Court of Western Australia
Civ No: 123 of 2011
Affidavit
Parties
MARY SMITH Plaintiff
-and-
ALLAN GREEN Defendant
Person making affidavit
Mary Smith
Date made
19 April 2011
Purpose
Affidavit Verifying List of Discoverable Documents
Filed by
Plaintiff
Index
Contents
Page
1. Affidavit of Mary Smith
2.
Attachment A - List of Discoverable documents
2-3
4-10
I, the abovenamed plaintiff, Mary Smith, make oath and say as follows:

1. The list of documents produced to me and marked “Attachment A” is
the list of the documents relating to the matters in question in this
action that are or have been in the possession, custody or power of
the plaintiff.
2. The documents listed in Part 1A of Attachment A are the documents
relating to the matters in question in this action that are in the
possession, custody or power of the plaintiff.
3. The plaintiff objects to producing those of the documents in Part
1A of Attachment A identified in Part 1B on the grounds stated in Part
1B.
4. The documents listed in Part 2A of Attachment A are the documents
relating to the matters in question in this action that were, but no
longer are, in the possession, custody or power of the plaintiff.
5. The statements in Part 2B of Attachment A about the documents
listed in Part 2A are true.
6. The plaintiff has made all reasonable enquiries, including of its
employees and agents, to identify all documents of any description
whatever relating to any matter in question in this action that are or
were in its possession, custody or power.
7. To the best of my knowledge, information and belief, neither the
plaintiff nor any other person on its behalf, has now, or ever had
possession, custody or power over any document of any description
whatever relating to any matter in question in this action, other than
the documents listed in Parts 1A and 2A of Attachment A.
This affidavit is sworn by Mary Smith
in the presence of an authorised witness at
Rockingham on 3 March 2011.
Mary Smith
_______________________
E Chew
_______________________
Authorised witness
Edward Chew
Justice of the Peace
ANNEXURE L
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No of
B E T W E E N
Plaintiff
-and-
Defendant
_____________________________________________________________________
MINUTE OF PROPOSED ORDERS
DIRECTIONS HEARING _____________________
_____________________________________________________________________
Date of document: __________________
Date of filing: __________________
Filed on behalf of: Plaintiff / Defendant21
Prepared by:
Party: Plaintiff / Defendant22
Address: _____________________________ Telephone: ______________
_____________________________ Facsimile: _______________
Email: _____________________________ Reference: ______________
______________________________
The plaintiff / defendant* proposes to seek orders in the following
terms:
35.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
36.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
37.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
38.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
39.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
ANNEXURE L – WORKED EXAMPLE
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No 123 of 2011
B E T W E E N
MARY SMITH Plaintiff
-and-
ALLAN GREEN Defendant
­­­­­­­­­­­­­­­­­MINUTE OF PROPOSED ORDERS
DIRECTIONS HEARING 12 APRIL 2011
Date of document: 9 April 2011
Date of filing: 9 April 2011
Filed on behalf of: Plaintiff
Prepared by:
Party: Plaintiff
Address: 27 Astor Place Telephone: 9332 7374
MORLEY WA 6020 Facsimile: 9332 7444
Email: [email protected] Reference:
______________________________
The plaintiff proposes to seek orders in the following terms:
1. by 19 April 2011 the plaintiff file and serve her statement of
claim;
2. by 5 May 2011 the defendant file and serve his defence and any
counterclaim;
3. by 19 May 2011 the plaintiff file and serve any reply and defence
to counterclaim;
4. by 1 June 2011, each party:
(a) make a list of the documents which are or have been in that
party’s possession, custody or power relating to any matter in
question in the action;
(b) swear an affidavit verifying that list; and
(c) serve a copy of each document on each other party.
5. each party complete their inspection of documents discovered by
another party within 10 working days following the date on which its
was served with that party’s list of discoverable documents;
6.
the action be listed for a directions hearing on 27 June 2011 at
10:00am.
ANNEXURE M
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No of
B E T W E E N
Plaintiff
-and-
Defendant
_____
_____________________________________________________________________
CONSENT ORDER
_____________________________________________________________________
Date of document: __________________
Date of filing: __________________
Filed on behalf of: Plaintiff / Defendant23
Prepared by:
Party: Plaintiff / Defendant24
Address: _____________________________ Telephone: ______________
_____________________________ Facsimile: _______________
Email: _____________________________ Reference: ______________
___________________________________
PURSUANT TO RSC ORDER 43 RULE 16 the parties consent to the following
orders:
40.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
41.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
42.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
43.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
44.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
________________________ _____________________
Plaintiff Defendant
Settled, signed and sealed in accordance with RSC Order 43 rule 16.
Dated the _________ day of ___________________ 20__.
BY THE COURT
REGISTRAR
ANNEXURE M – WORKED EXAMPLE
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No 123 of 2011
B E T W E E N
MARY SMITH Plaintiff
-and-
ALLAN GREEN Defendant
CONSENT ORDER
Date of document: 9 April 2011
Date of filing: 9 April 2011
Filed on behalf of: Plaintiff
Prepared by:
Party: Plaintiff
Address: 27 Astor Place Telephone: 9332 7374
MORLEY WA 6020 Facsimile: 9332 7444
Email: [email protected] Reference:
___________________________________
PURSUANT TO RSC ORDER 43 RULE 16 the parties consent to the following
orders:
1. by 19 April 2011 the plaintiff file and serve her statement of
claim;
2. by 5 May 2011 the defendant file and serve his defence and any
counterclaim;
3. by 19 May 2011 the plaintiff file and serve any reply and defence
to counterclaim;
4. by 1 June 2011, each party:
(a) make a list of the documents which are or have been in that
party’s possession, custody or power relating to any matter in
question in the action;
(b) swear an affidavit verifying that list; and
(c) serve a copy of each document on each other party.
5. each party complete their inspection of documents discovered by
another party within 10 working days following the date on which its
was served with that party’s list of discoverable documents;
6.
the action be listed for a directions hearing on 27 June 2011 at
10:00am.
Mary Smith Allan Green
____________________ _____________________
Plaintiff Defendant
Settled, signed and sealed in accordance with RSC Order 43 rule 16.
Dated the _________ day of ___________________ 20__.
BY THE COURT
REGISTRAR
ANNEXURE N
Entry for trial (r. 37)
District Court of Western Australia
Held at Perth 1
Action No:
Entry for trial
Matter
[Names of all parties]
Date of filing
Certificate
The [party] certifies that —
● each party has given discovery to, and permitted inspection by, each
other party;
● all requests for answers to interrogatories have been answered or
validly objected to (delete if inapplicable);
● each party has complied with all case management directions and
orders made by the Court;
● the [party] does not require any other interlocutory orders to be
made;
● the [party] has complied with the Rules of the Supreme Court 1971
Order 36A;
● the [party] has complied with the District Court Rules 2005
rule 36(1);
● the [party] has complied with the District Court Rules 2005
rule 45C;
● the [party] has complied with the District Court Rules 2005 rule 45D
(delete if inapplicable).
Entry for trial
The [party] enters this matter for trial.
Has the requirement to attend a pre‑trial conference been dispensed
with? 2
Unavailable dates
The parties are not available for a pre‑trial conference on these
dates:
Date of pre‑trial conference / directions hearing / listing conference
3
Date:
Time:
Place: District Court Building, 500 Hay Street, Perth 1
Information about the pre‑trial conference
All parties are required to attend the pre‑trial conference in person
accompanied by their respective lawyers. Where a party is a body
corporate it must attend by an agent who is authorised by the body
corporate to conduct settlement negotiations and settle the case.
At the pre‑trial conference, the parties must, in good faith, attempt
to settle the case or, failing settlement, to resolve as many of the
issues between them as possible and to identify the issues to be
tried.
If the action is settled before the pre‑trial conference please
immediately notify the Court that this has occurred.
Contact details of party or lawyer
Name
Firm
Address
Phone
Fax
Email
Reference
Signature of person making this certification
Name of person making this certification
Date of signing:
Notes to Form 1 —
1. If not held at Perth, state the location of the relevant registry.
2. If it has, specify the date of the order.
3. The Court will complete this row when the entry for trial notice is
filed. If a listing conference or directions hearing has already been
allocated, insert this information into the hearing details.
[Form 1 inserted in Gazette 31 Dec 2013 p. 6560-1.]
ANNEXURE N – WORKED EXAMPLE
DCR Form 1
District Court of Western Australia
Held at Perth 1
Action No: 123 or 2011
Entry for trial
Matter
MARY SMITH
-and-
ALLAN GREEN
Date of filing
Certificate
The Plaintiff certifies that —
● each party has given discovery to, and permitted inspection by, each
other party;
● all requests for answers to interrogatories have been answered or
validly objected to (delete if inapplicable);
● each party has complied with all case management directions and
orders made by the Court;
● the [party] does not require any other interlocutory orders to be
made;
● the [party] has complied with the Rules of the Supreme Court 1971
Order 36A;
● the [party] has complied with the District Court Rules 2005
rule 36(1);
● the [party] has complied with the District Court Rules 2005
rule 45C;
● the [party] has complied with the District Court Rules 2005 rule 45D
(delete if inapplicable).
Entry for trial
The Plaintiff enters this matter for trial.
Has the requirement to attend a pre‑trial conference been dispensed
with? 2
No
Unavailable dates
The parties are not available for a pre‑trial conference on these
dates:
May: 5 – 20, 25
June: 3, 5
Date of pre‑trial conference / directions hearing / listing conference
3
Date:
Time:
Place: District Court Building, 500 Hay Street, Perth 1
Information about the pre‑trial conference
All parties are required to attend the pre‑trial conference in person
accompanied by their respective lawyers. Where a party is a body
corporate it must attend by an agent who is authorised by the body
corporate to conduct settlement negotiations and settle the case.
At the pre‑trial conference, the parties must, in good faith, attempt
to settle the case or, failing settlement, to resolve as many of the
issues between them as possible and to identify the issues to be
tried.
If the action is settled before the pre‑trial conference please
immediately notify the Court that this has occurred.
Contact details of party or lawyer
Name
Mary Smith
Firm
Address
27 Astor Place, Morley, WA 6020
Phone
9332 7374
Fax
9332 7444
Email
[email protected]
Reference
Signature of person making this certification
Name of person making this certification
Mary Smith
Date of signing:
28 July 2011
Notes to Form 1 —
1. If not held at Perth, state the location of the relevant registry.
2. If it has, specify the date of the order.
3. The Court will complete this row when the entry for trial notice is
filed. If a listing conference or directions hearing has already been
allocated, insert this information into the hearing details.
[Form 1 inserted in Gazette 31 Dec 2013 p. 6560-1.]
ANNEXURE O
4A. Subpoena to attend to give evidence (r. 48AB)
District Court of Western Australia
Held at Perth 1
Action No:
SUBPOENA TO ATTEND TO GIVE EVIDENCE
Parties
Plaintiff
Defendant
To:
[Full name and address of addressee]
Warning
Failure to comply with this subpoena without lawful excuse is a
contempt of court and may result in your arrest.
Notes
Please read the information in the Notice to addressee (Form 4B) which
accompanies this subpoena.
Date of issue
Last date for service
Order
You are ordered to attend to give evidence on the date, and at the
time and place, specified below unless you receive notice in writing
of a later date or time from the issuing party, in which case the
later date or time is substituted:
Date:
Time:
Place:
You must continue to attend from day‑to‑day unless excused by the
Court or the person authorised to take evidence in this proceeding or
until the hearing of the matter is completed.
Issuing details
Issued at the request of [name of party], whose service details are:
Seal of the Court
4B. Subpoena notice — evidence (r. 48AB)
District Court of Western Australia
Held at Perth 1
Action No:
SUBPOENA NOTICE — EVIDENCE
Parties
Plaintiff
Defendant
NOTICE TO ADDRESSEE
Contempt of court — arrest
1. Attached to this notice is a subpoena issued by the District Court
of Western Australia, requiring you to attend Court to give evidence.
Failure to comply with a subpoena without lawful excuse is a contempt
of court and may be dealt with accordingly.
2. Note 1 does not limit any power of the Court, under any rules of
the Court (including any rules of the Court providing for the arrest
of an addressee who fails to attend in accordance with a subpoena) or
otherwise, to enforce compliance with a subpoena.
Last day of service
3. You need not comply with the subpoena unless it is served on you on
or before the date specified in the subpoena as the last date for
service of the subpoena.
Informal service
4. Even if this subpoena has not been served personally on you, you
must, nevertheless, comply with its requirements, if you have, by the
last date for service of the subpoena, actual knowledge of the
subpoena and of its requirements.
Conduct money
5. You need not comply with it unless conduct money sufficient to meet
your reasonable expenses of attending as required by the subpoena is
handed or tendered to you a reasonable time before the date on which
your attendance is required.
Losses or expenses incurred in compliance
6. If you are not a party to the proceeding, you may apply to the
Court for an order that the issuing party pay an amount (in addition
to conduct money and any witness’s expenses) in respect of the loss or
expense, including legal costs, reasonably incurred in complying with
the subpoena.
4C. Subpoena to produce documents (r. 48AB)
District Court of Western Australia
Held at Perth 1
Action No:
SUBPOENA TO PRODUCE
Parties
Plaintiff
Defendant
To:
[Full name and address of addressee]
Warning
Failure to comply with this subpoena without lawful excuse is a
contempt of court and may result in your arrest.
Notes
Please read the information in the Notice to addressee (Form 4D or
Form 4E as applicable) which accompanies this subpoena.
Date of issue
Last date for service
Date of production
The date applies unless you receive notice in writing of a later date
or time from the issuing party, in which case the later date or time
is substituted.
Order
You must comply with this subpoena —
(a) by attending to produce this subpoena (or a copy of it), the
completed declaration (Form 4D or Form 4E as applicable) and the
documents or things specified in the Schedule below on the date of
production:
Place: District Court of Western Australia
500 Hay Street
Perth, Western Australia 2
OR
(b) by delivering or sending this subpoena (or a copy of it), the
completed declaration (Form 4D or Form 4E as applicable) and the
documents or things specified in the Schedule below to the registrar
at the address below, so that they are received not less than 2 clear
days before the date of production:
The Registrar
District Court of Western Australia
500 Hay Street
PERTH WA 6000 2
Schedule
[If insufficient space attach list]
The documents or things you must produce are as follows:
Issuing details
Issued at the request of [name of party], whose service details are:
Seal of the Court
4D. Subpoena notice and declaration — documents or things (r. 48AG)
District Court of Western Australia
Held at Perth 1
Action No:
Subpoena notice —
documents or things
Parties
Plaintiff
Defendant
NOTICE TO ADDRESSEE
(To a health professional, hospital or person that manages the records
of a health professional)
Contempt of court — arrest
1. Attached to this notice is a subpoena issued by the District Court
of Western Australia, requiring you to produce documents (or things)
as described to the Court on or before the date indicated (the return
date). Failure to comply with a subpoena without lawful excuse is a
contempt of court and may be dealt with accordingly.
2. Note 1 does not limit any power of the Court, under any rules of
the Court (including any rules of the Court providing for the arrest
of an addressee who fails to attend in accordance with a subpoena) or
otherwise, to enforce compliance with a subpoena.
Attached declaration in relation to copies
3. At the same time as complying with the subpoena, you are also
required to complete the declaration at the end of this notice and
attach it to the subpoena or copy of the subpoena that accompanies the
documents or things produced to the Court under the subpoena.
Last day for service
4. You need not comply with the subpoena unless it is served on you on
or before the date specified in the subpoena as the last date for
service of the subpoena.
Informal service
5. Even if this subpoena has not been served personally on you, you
must, nevertheless, comply with its requirements, if you have, by the
last date for service of the subpoena, actual knowledge of the
subpoena and of its requirements.
Addressee a corporation
6. If the subpoena is addressed to a corporation, the corporation must
comply with the subpoena by its appropriate or proper officer.
Production of subpoena or copy of it and documents or things by
delivery or post
7. Instead of attending to produce the subpoena or a copy of it and
the documents or things, you may comply with the subpoena by
delivering or sending the subpoena or a copy of it and the documents
or things to the registrar at the address specified in the subpoena
for the purpose, so that they are received not less than 2 clear days
before the date specified in the subpoena for attendance and
production or, if you receive notice of a later date or time from the
issuing party, before that later date or time.
Production of copy instead of original
8. Unless the subpoena specifically requires production of the
original of a document, you may comply with the subpoena by producing
a copy of the document.
9. The copy of a document may be:
(a) a photocopy; or
(b) in PDF format on a CD‑ROM or DVD.
Production of a number of documents or things
10. If you produce more than one document or thing, you must, if
requested by the registrar, produce a list of the documents or things
produced.
Inspection and copying
11. Unless the Court otherwise orders, the following will apply to the
documents and things produced —
(a) the plaintiff will be permitted to inspect and copy the subpoenaed
documents as soon as they are received by the Court; and
(b) the other parties will be permitted to inspect the documents at
any time after 7 days from the date on which production is due under
the subpoena and, with the approval of a registrar, copy the
documents.
12. Each party who copies the documents produced must give an
undertaking to the Court not to use the document otherwise than for
the purpose of the action.
Objections
13. If you object to a document or thing produced in response to this
subpoena being inspected by a party to the proceeding or any other
person, you must, at the time of production, notify the Principal
Registrar in writing of your objection and of the grounds of your
objection.
14. If your objection relates to timeframes and/or access, any dispute
may be resolved by way of correspondence with a registrar.
15. If your objection raises substantive issues concerning the ambit
of the subpoena, for example claims of privilege, these will be
referred for determination by the Court.
16. You have the right to apply to the Court —
(a) for an order setting aside the subpoena (or a part of it) or for
relief in respect of the subpoena; and
(b) for an order with respect to your claim for privilege, public
interest immunity or confidentiality in relation to any document or
thing to which the subpoena applies.
Losses or expenses incurred in compliance 2
17. When you were served with the subpoena, you also received the
amount of $80 for your reasonable losses or expenses incurred in
complying with the subpoena. The receipt of this amount does not
affect your right to apply to the Court for a higher amount to be
fixed. If you wish to claim that your reasonable costs of compliance
are higher than $80, you should make a claim in writing to the issuing
party. If you are not able to resolve your claim with the issuing
party, you should send a copy of your claim and any other relevant
correspondence to the Principal Registrar. The Principal Registrar
will make arrangements for your claim to be assessed by the Court.
District Court of Western Australia
Held at Perth 1
Action No:
SUBPOENA DECLARATION
Parties
Plaintiff
Defendant
DECLARATION BY ADDRESSEE
You are required to:
• Tick the relevant option below.
• If originals are to be returned, provide your address as
appropriate.
• Sign and date the declaration.
• Attach the declaration to the subpoena or copy of the subpoena that
accompanies the documents produced to the Court under the subpoena.
If you declare that the material you produce is copies of documents,
the Court may, without further notice to you, destroy the copies after
the expiry of 4 months from the conclusion of the proceeding or, if
the documents become exhibits in the proceeding, when they are no
longer required in connection with the proceeding, including on any
appeal.
If the material you produce to the Court is or includes any original
document, the Court will return all of the material to you at the
address specified by you in the declaration below. Unless the Court
otherwise directs, these documents will be returned to you after the
expiry of 28 days from the date on which production is due under the
subpoena.
 All of the material I am providing to the Court in compliance with
the attached subpoena is copies of documents. I acknowledge that the
Court may destroy the copies once they are no longer required, without
further notice to me.
 Some or all of the material I am providing to the Court in
compliance with the attached subpoena is an original document. Once
the material is no longer required, all of the material should be
returned to me at the following address:
..............................................................................................................
..............................................................................................................
........................................................
[Signature of addressee]
........................................................
[Name of addressee]
........................................................
[Date]
4E. Subpoena notice and declaration — documents or things (r. 48AG)
District Court of Western Australia
Held at Perth 1
Action No:
SUBPOENA NOTICE — DOCUMENTS OR THINGS
Parties
Plaintiff
Defendant
NOTICE TO ADDRESSEE
(Other than a health professional, hospital or person that manages the
records of a health professional)
Contempt of court — arrest
1. Attached to this notice is a subpoena issued by the District Court
of Western Australia, requiring you to produce documents (or things)
as described to the Court on or before the date indicated (the return
date). Failure to comply with a subpoena without lawful excuse is a
contempt of court and may be dealt with accordingly.
2. Note 1 does not limit any power of the Court, under any rules of
the Court (including any rules of the Court providing for the arrest
of an addressee who fails to attend in accordance with a subpoena) or
otherwise, to enforce compliance with a subpoena.
Attached declaration in relation to copies
3. At the same time as complying with the subpoena, you are also
required to complete the declaration at the end of this notice and
attach it to the subpoena or copy of the subpoena that accompanies the
documents produced to the Court under the subpoena.
Last day for service
4. You need not comply with the subpoena unless it is served on you on
or before the date specified in the subpoena as the last date for
service of the subpoena.
Informal service
5. Even if this subpoena has not been served personally on you, you
must, nevertheless, comply with its requirements, if you have, by the
last date for service of the subpoena, actual knowledge of the
subpoena and of its requirements.
Addressee a corporation
6. If the subpoena is addressed to a corporation, the corporation must
comply with the subpoena by its appropriate or proper officer.
Production of subpoena or copy of it and documents or things by
delivery or post
7. Instead of attending to produce the subpoena or a copy of it and
the documents or things, you may comply with the subpoena by
delivering or sending the subpoena or a copy of it and the documents
or things to the registrar at the address specified in the subpoena
for the purpose, so that they are received not less than 2 clear days
before the date specified in the subpoena for attendance and
production or, if you receive notice of a later date or time from the
issuing party, before that later date or time.
Production of copy instead of original
8. Unless the subpoena specifically requires production of the
original of a document, you may comply with the subpoena by producing
a copy of the document.
9. The copy of a document may be —
(a) a photocopy; or
(b) in PDF format on a CD‑ROM or DVD.
Production of a number of documents or things
10. If you produce more than one document or thing, you must, if
requested by the registrar, produce a list of the documents or things
produced.
Inspection and copying
11. Unless the Court otherwise orders (for example, if an objection is
made), the following will apply to the documents and things produced —
(a) all parties to the action are permitted to inspect the documents
and things immediately upon production; and
(b) all parties to the action are permitted, with the approval of a
registrar, to copy the documents.
12. Each party who copies the documents produced must give an
undertaking to the Court not to use the document otherwise than for
the purpose of the action.
Objections
13. If you object to a document or thing produced in response to this
subpoena being inspected by a party to the proceeding or any other
person, you must, at the time of production, notify the Principal
Registrar in writing of your objection and of the grounds of your
objection.
14. If your objection relates to timeframes and/or access, any dispute
may be resolved by way of correspondence with a registrar.
15. If your objection raises substantive issues concerning the ambit
of the subpoena, for example claims of privilege, these will be
referred for determination by the Court.
16. You have the right to apply to the Court —
(a) for an order setting aside the subpoena (or a part of it) or for
relief in respect of the subpoena; and
(b) for an order with respect to your claim for privilege, public
interest immunity or confidentiality in relation to any document or
thing to which the subpoena applies.
Losses or expenses incurred in compliance 2
17. When you were served with the subpoena, you also received the
amount of $80 for your reasonable losses or expenses incurred in
complying with the subpoena. The receipt of this amount does not
affect your right to apply to the Court for a higher amount to be
fixed. If you wish to claim that your reasonable costs of compliance
are higher than $80, you should make a claim in writing to the issuing
party. If you are not able to resolve your claim with the issuing
party, you should send a copy of your claim and any other relevant
correspondence to the Principal Registrar. The Principal Registrar
will make arrangements for your claim to be assessed by the Court.
District Court of Western Australia
Held at Perth 1
Action No:
SUBPOENA DECLARATION
Parties
Plaintiff
Defendant
DECLARATION BY ADDRESSEE
You are required to:
• Tick the relevant option below.
• If originals are to be returned, provide your address as
appropriate.
• Sign and date the declaration.
• Attach the declaration to the subpoena or copy of the subpoena that
accompanies the documents produced to the Court under the subpoena.
If you declare that the material you produce is copies of documents,
the Court may, without further notice to you, destroy the copies after
the expiry of 4 months from the conclusion of the proceeding or, if
the documents become exhibits in the proceeding, when they are no
longer required in connection with the proceeding, including on any
appeal.
If the material you produce to the Court is or includes any original
document, the Court will return all of the material to you at the
address specified by you in the declaration below. Unless the Court
otherwise directs, these documents will be returned to you at the
expiry of 28 days from the date on which production is due under the
subpoena.
 All of the material I am providing to the Court in compliance with
the attached subpoena is copies of documents. I acknowledge that the
Court may destroy the copies once they are no longer required, without
further notice to me.
 Some or all of the material I am providing to the Court in
compliance with the attached subpoena is an original document. Once
the material is no longer required, all of the material should be
returned to me at the following address:
..............................................................................................................
..............................................................................................................
........................................................
[Signature of addressee]
........................................................
[Name of addressee]
........................................................
[Date]
ANNEXURE P
DISTRICT COURT OF WESTERN AUSTRALIA
FACSIMILE FILING FORM
(For filing of documents pursuant to 2005 DCR rule 19)
Urgent – for hearing on ____________
(Tick box and complete date if hearing is within 5 business days)
To: Coordinator Civil Case Management Fax number: 9425 2268
Date: ________________ Number of pages:________ (Max 20)
Action number: CIV ___ / _____
Parties: _____________________________________________________
Filing party: ______________________
From:
Law firm: _____________________ Reference: ___________________
Postal address: _________________________________________________
Phone: _____________________ Fax: ___________________
The following documents are attached for filing by facsimile:
1. _______________________________________________________
2. _______________________________________________________
3.
_______________________________________________________
A credit card payment authority is attached in the amount of for the
fees in relation to the filing of the document(s).
or
No fee is payable for this document type.
or
No fee is payable because: __________________________________
State reason by reference to District Court (Fees) Regulations
DISTRICT COURT OF WESTERN AUSTRALIA
Credit card payment authority
Action number: CIV ___ / _____
Parties: _____________________________________________________
The District Court is authorised to debit the following credit card
for fees payable on filing of the attached document(s) in accordance
with District Court (Fees) Regulations 2002 (WA):
Amount: ____________ Card type (circle): Visa / Mastercard / Bankcard
Card number: __________________________ Expiry date: _____________
Cardholder name: _____________________________________________
Cardholder signature: ____________________________________________
Cardholder contact telephone:
____________________________________________
---------------------------------------------------------------------------------------------------------------
Court use
Approved
Date: ________________
Receipt Number: ________________
Court officer: ________________
1 The Court will insert an action number on filing of the writ.
2 Insert the defendant’s address for service.
3 If the defendant is not resident in Western Australia special rules
apply.
4 Depending on how far away the defendant is from the Registry of the
Court longer time periods may apply.
5 The Court will insert the date of filing.
6 This is concise statement of the nature of the claim made, and of
the relief or remedy required in the action.
7 This is only to be inserted where the plaintiff’s claim is for a
debt or liquidated demand.
8 This amount will be inserted by Registry staff.
9 Insert the defendant’s address for service.
10 If the defendant is not resident in Western Australia special rules
apply.
11 The Court will insert the date of filing.
12 This amount will be inserted by Registry staff.
13 To be signed by the plaintiff
14 To be signed by the defendant
15 Describe orders sought
16 Delete inapplicable
17 Delete inapplicable
18 Delete inapplicable
19 To be addressed to the other parties - delete inapplicable
20 The address is the address for service, which is the lawyer’s
address if the party is represented.
* Delete inapplicable
* Delete one
* Delete one
21 Delete inapplicable
22 Delete inapplicable
* Delete inapplicable
23 Delete inapplicable
24 Delete inapplicable