Giving notice of intention to sue

Before commencing proceedings in court, notice of intention to sue should be given to the other party (this does not apply in relation to a counterclaim, a third party claim, a claim for non compliance with an EPA, or a claim under the Worker's Liens Act 1893 (SA)). This notice gives the other party 21 days in which to try and resolve the matter or seek mediation.

If no notice of intention to sue is given, the filing fee (the amount you pay the Court to lodge the claim) will not be recoverable, even if the action is eventually successful.

Notice of intention to sue can be given by EITHER filling out and serving a Final Notice of Claim (Form 1A) OR sending a Letter of Demand.

Final Notice of Claim

A Final Notice of Claim gives notice to the defendant of the nature of your claim and that you intend to start an action against them (see below for information specific to personal injury claims). This form can be obtained from the Magistrates Court Registry or over the Internet. There is a cost for the form ($20.60 if filed using the online portal; $50.00 if filed through the Court Registry). You can also use the online pre-lodgement system.

If you are willing to accept payment in instalments, you can send an Enforceable Payment Agreement with the Final Notice of Claim. For more information, see Enforceable Payment Agreements.

After serving the form on the defendant, you must wait a minimum 21 days for a response before taking any further action.

If you use Form 1A to give notice of your claim, the free mediation service provided by the Magistrates Court may be used to resolve the matter, if both parties agree to attend. Information about the option to use mediation is given to the defendant on the Form 1A. You can also get more information about the Mediation Service from the Court on 8204 2444.

If you want to try to resolve the claim informally, ask the Mediation Unit to approach the other side for you to see if they are willing to participate. Remember that mediation is not compulsory and there is no way to force someone to participate if they do not want to.

Service of the Final Notice of Claim

You must post the form yourself - the court will not do it for you. There are two ways you can serve a Final Notice of Claim or letter of demand:

  • Regular post

Keep a copy of the document and make a record of the date it was sent. A posted document is assumed to have been received by the person it is addressed to.

  • Registered post

Registered Post is where the addressee must sign for receipt of the document. You can organise and pay for your document to be sent by Registered Post at any post office. While using Registered Post shows that the letter was sent, it is not strictly necessary.

Letter of Demand

A letter of demand is a formal request that the defendant accept your claim. A letter of demand can be used instead of a Final Notice of Claim and must include:

  • the date the letter was written
  • the amount owed, or action required
  • why the debt is owed (for example, there was a contract, or services were provided) or why the action is required
  • a demand for payment or action within 21 days from the date of the letter
  • a statement that you intend to take legal action if the money is not paid or there is no action within 21 days
  • copies of agreements or invoices when applicable
  • a warning that the Court can order the defendant to pay the costs of any legal proceedings.

You may wish to include information about the defendant's options, for example going to mediation. Note that the Magistrates Court's free mediation service is not available unless you use Form 1A to give notice of your intention to sue. However, you may use free community mediation services to resolve the matter.

Below is a sample letter of demand for a debt (for other types of disputes, please seek legal advice):

Dear [put the name of the other person here],

I enclose a copy of my invoice [provide details of invoice number, date, amount and what it is for]; which remains unpaid.

Please arrange payment of the above amount within 21 days of the date of this letter. If I do not receive payment I intend to commence legal proceedings to recover the debt and my legal costs.

Yours sincerely

*************************************************************************************************************************************************

Service of Letter of Demand

This letter does not have to be filed in the court, and can be sent directly to the defendant by regular post or it can be given personally to the defendant. The plaintiff should keep a copy of the letter.

Personal Injury Matters

Note that in an action for damages for personal injuries notice of the claim must be given at least 90 days before the filing of the claim and must be given to the defendant’s insurer if the identity of the insurer is known to the intended plaintiff. This notice must include notice of any intended claim for past and future economic loss and be supported by documents including medical reports setting out the nature and extent of the plaintiff’s injuries and residual disabilities as known to the plaintiff at the time of the giving of the notice.

Giving notice of intention to sue  :  Last Revised: Mon Dec 5th 2016
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