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Plaintiffs may choose small claims procedure

In force

Application for small claims procedure

(1)

Proceedings are to be dealt with as small claims proceedings under this section if:

(a)

a person applies to a magistrates court, local court or the Federal Circuit and Family Court of Australia (Division 2) for an order covered by subsection (2); and

(b)

the person indicates, in the manner (if any) prescribed by the regulations or by the rules of the court, that the person wants the small claims procedure to apply to the proceedings.

Orders for which small claims procedure triggered

(2)

The following table sets out when an order is covered by this subsection:

Orders for which small claims procedure triggered
Item	An order is covered by this subsection if it is made under ...	but only if (if applicable) ...
1	Section 178	the order is for an amount that is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
2	Section 37 of the National Credit Code	the value of the credit contract, mortgage or guarantee to which the order relates is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
3	Subsection 38(7) of the National Credit Code	the value of the credit contract, mortgage or guarantee to which the order relates is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
4	Section 74 of the National Credit Code	not applicable.
5	Section 75 of the National Credit Code	not applicable.
6	Section 76 of the National Credit Code	the value of the credit contract, mortgage or guarantee to which the order relates is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
7	Section 78 of the National Credit Code	the value of the credit contract, mortgage or guarantee to which the order relates is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
8	Section 96 of the National Credit Code	not applicable.
9	Section 101 of the National Credit Code	the value of the credit contract, mortgage or guarantee to which the order relates is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
10	Section 106 of the National Credit Code	the order is for an amount that is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
11	Subsection 107(3) of the National Credit Code	the order is for an amount that is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
12	Section 108 of the National Credit Code	the value of the credit contract, mortgage or guarantee to which the order relates is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
13	Section 118 of the National Credit Code	the order is for an amount that is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
14	Section 175F of the National Credit Code	the value of the consumer lease to which the order relates is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
15	Subsection 175G(6) of the National Credit Code	the value of the consumer lease to which the order relates is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
16	Section 177D of the National Credit Code	not applicable.
17	Section 177E of the National Credit Code	not applicable.
18	Section 177F of the National Credit Code	the value of the consumer lease to which the order relates is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
19	Section 179K of the National Credit Code	not applicable.
20	Section 179Q of the National Credit Code	the value of the consumer lease to which the order relates is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.
21	Subsection 179R(3) of the National Credit Code	the order is for an amount that is not more than: (a) $40,000; or (b) if a higher amount is prescribed by the regulations—that higher amount.

(3)

The value of a credit contract, mortgage, guarantee or consumer lease is:

(a)

worked out in accordance with the regulations; or

(b)

if there are no regulations in force for the purposes of paragraph (a):

(i)

for a credit contract—the amount of credit that has been, or may be, provided under the contract; and

(ii)

for a mortgage—the amount of credit that has been, or may be, provided under the credit contract to which the mortgage relates; and

(iii)

for a guarantee—the amount of credit that has been, or may be, provided under the credit contract to which the guarantee relates; and

(iv)

for a consumer lease—the amount payable under the consumer lease, as referred to in paragraph 170(1)(b) of the National Credit Code.

Court may make ancillary or consequential orders

(4)

To avoid doubt, the court may make any ancillary or consequential orders it considers appropriate in relation to the orders made under the provisions referred to in subsection (2). The limits referred to in column 3 of the table do not apply to those ancillary or consequential orders.

Procedure

(5)

In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:

(a)

in an informal manner; and

(b)

without regard to legal forms and technicalities.

(6)

At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.

Legal representation

(7)

A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.

(8)

If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.

(9)

For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.

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