As of 1 August 2016 the monetary limit for new minor civil claims will reduce from $25 000 to $12 000.
Proceedings commenced before 1 August 2016 (even if they are over $12 000) will continue as they are.
Civil claims can cover a wide range of matters. The most common types of civil claims are claims for debts (such as money owing on loans or under contracts) or claims for damages (such as for money claimed for repairing a car or for personal injuries following a road accident).
Some types of civil claims, such as residential tenancies, unfair dismissals, bankruptcy, copyright and planning and development, are dealt with by special courts or tribunals . This chapter does not deal with the procedure in these special courts and tribunals.
In this chapter, unless otherwise stated, the procedure for making a claim is that which applies in the Magistrates Court Civil (Minor Claims) Division. For additional information about minor civil claims, see DEBT and ACCIDENTS AND INJURIES, Motor vehicle accidents.
In which court is a civil claim started?
The amount of money or damages being claimed usually determines the Court in which a claim should be started. Under the the monetary limits for the types of claims which courts can deal with are [Magistrates Court Act 1991 ss 3 and 8]:
- Up to $12 000 Magistrates Court Civil (Minor Claims) Division (as of 1 August 2016)
- $12 001 - $100 000 Magistrates Court Civil (General Claims) Division (as of 1 August 2016)
- Over $100 000 District Court Civil Division.
Claims can also be made in the Supreme Court, but there are cost penalties under the Supreme Court Civil Rules 2006 [r 263] which can apply if the amount of the judgment awarded by the Supreme Court falls below a certain amount. The amount depends on the type of claim (for claims arising from motor vehicle accidents, at least $150 000 must be awarded to avoid costs penalties; for defamation claims, $25 000 must be awarded; and for other claims, $75 000). There are also penalties if the amount awarded is less than an offer of settlement filed with the court and not accepted [see r 188].
The procedures that are followed in the District Court and the Supreme Court are very nearly the same as each other. Whilst there are many similarities with the procedural steps in all of the Courts, generally the procedures have been simplified in the Magistrates Court.
A child can sue for damages but the court action must be brought in the child's name by a next friend who is an adult who guarantees to pay costs if they are ordered against the child. Usually a parent or guardian acts as the child's next friend. A claim can be lodged at any time before the child turns 21 years [Limitation of Actions Act 1936 (SA) s 45].
Any compensation awarded to a child is held in trust, usually by the Public Trustee, until a child turns 18 years. However, a court can order funds to be released earlier if it is in the best interests of the child (for example, if the child needs the money to pay for medical or education expenses).
If a child is sued, the action can be started in the usual way by serving the documents on the child, but the case is defended on the child's behalf by an adult (usually a parent) who is called a guardian ad litem or litigation guardian. This person defends the proceedings in the name of the child. A writ can also be served on a child by serving it on the child's parent or guardian.
Where a case in which either the plaintiff or the defendant is a child is settled out of court, the settlement must be approved by the court. Usually, this means that the written opinion of counsel must be given to the court explaining that the settlement is for the benefit of the child, having regard to all of the evidence. This is so whether or not a summons or writ has actually been issued.
Victims of crime
A child, like any other victim of crime, can apply for compensation for injury caused by a criminal offence. See Victims of Crime.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.