Do you need to commence proceedings in Court or Tribunal? There are three (3) main options to commence proceedings against a defendant:
- Commence proceedings in the Queensland Civil Administrative Tribunal (“QCAT”); and
- Commence Proceedings in the Court with jurisdiction for civil litigation or commercial litigation; or
- Serve a statutory demand.
The purpose of commencing proceedings is to use legal remedies to recover the outstanding sum and/or to recover damages.
This article explains how to commence proceedings against a person or a company.
Commence proceedings in the Queensland Civil Administrative Tribunal (“QCAT”)
QCAT was established to ensure that people in Queensland have the ability to commence small civil claims, without having to pay costs which outweigh the benefit.
QCAT has jurisdiction to hear debt disputes related to a fixed or agreed sum of money, valued up to and including $25,000.
Once the paperwork is completed and filed it is then served on the debtor. When served with the stamped documents, the other party (called the respondent) may file a response.
If the debtor does not file a response then you may be awarded a decision in default, where the member at QCAT orders the debtor to pay.
If the debtor does file a response, then all parties will then receive a notice to attend mediation including the date, time and location of mediation. The aim of mediation is to get all parties to reach an agreement.
It is vital that you submit your paperwork correctly and provide detailed supporting documentation. We can guide you through completing your paperwork and collecting the supporting documentation.
QCAT Filing fees are as follows:
| Applications or referrals under: | Application fee |
| No amount claimed | $111.30 |
| Not more than $1,000 | $90.10 |
| More than $1,000 but not more than $10,000 | $153.70 |
| More than $10,000 | $379.50 |
However, these fees change so best to check out their website – https://www.qcat.qld.gov.au/resources/fees-and-allowances
Step-by-Step Guide to Filing a Claim in QCAT
Filing a claim in the Queensland Civil and Administrative Tribunal (QCAT) is designed to be a straightforward and cost-effective process for resolving disputes under $25,000. The claimant, referred to as the “Applicant,” must ensure their claim is for a liquidated amount and complete the necessary documentation.
After filing, the claim is served on the “Respondent” either personally (for individuals) or via mail to the registered office (for companies). The Respondent has 28 days to either settle the debt or file a Form 7 Response.
If a Response is filed, QCAT schedules a mediation session where both parties discuss the matter with a mediator. Legal representation is generally not permitted during these sessions, emphasizing a self-representation approach to resolve the dispute amicably.
If mediation fails, the matter proceeds to a formal hearing where QCAT evaluates the claim and issues a decision.
In cases where the Respondent does not respond within 28 days, the Applicant can apply for a default decision. However, QCAT decisions are not enforceable judgments; to enforce a decision, the Applicant must have it registered as a judgment in the Magistrates Court.
This step allows for further enforcement actions like bankruptcy proceedings or enforcement warrants.
While QCAT offers an accessible and economical alternative to the Magistrates Court, Applicants must actively participate in hearings and address any disputes raised, as delays can occur if Respondents contest the claim.
Commence Proceedings in the Court with Jurisdiction
Depending on the debt amount owing, you can start proceedings in the Magistrates Court, District Court or the Supreme Court.
The monetary jurisdictions are set out below:
| Monetary Limit (amount of debt) | Court with Jurisdiction |
| Up to $150,000.00 | Magistrates Court |
| $150,00.01 to $750,000.00 | District Court |
| Over $750,000.01 | Supreme Court |
In Queensland, an action for debt recovery is usually started by Claim. A Claim and Statement of Claim is drafted, filed in the registry of the Court with jurisdiction, sealed (stamped with the Court’s seal) and then you will need to serve the debtor with a copy of the Clam.
Once the debtor is deemed served, they will have twenty eight (28) days in which to file and serve a Notice of Intention to Defend and a Defence. If they do not file and serve a Notice of Intention to Defend and a Defence then you can apply for default judgment.
Providing the debtor has not defended the claim, we can apply for default judgment. After you receive judgment in your favour, you have the ability to enforce that judgment against the debtor or debtors. We advise using debt recovery solicitors.
Step-by-Step Guide to Filing a Claim in Court in Queensland
The litigation process in Queensland begins with the plaintiff filing a Claim and Statement of Claim in the court registry, detailing their demands and the facts supporting their case. These documents must be carefully drafted, as they form the foundation of the case.
Once served, the defendant has 28 days to file a Notice of Intention to Defend and submit a Defence, outlining their response to the plaintiff’s allegations.
The plaintiff may file a Reply to the Defence within 14 days, further clarifying their position.
The next stage is disclosure, where both parties share all relevant documents, either electronically or physically, ensuring transparency.
Before proceeding to trial, mediation offers a platform for negotiation and potential settlement under the guidance of legal representatives or a court order.
If the case remains unresolved, it moves to trial or hearing, where both parties present evidence and arguments before a judge or magistrate.
A judgment is then delivered based on the evidence and legal principles. This structured process underscores the importance of precision, organization, and expert legal support for an effective litigation strategy.
Serve a Statutory Demand
If the debtor is a company, and the debt is more than $4,000.00 then you can serve the debtor with a statutory demand. In most cases, we would not recommend this until after you receive a judgment from a Court with jurisdiction. The reason for this is that pre-judgment statutory demand can easily be set aside. All a company needs to do is show that:
- There is a genuine dispute about the existence or amount of a debt; and/or
- That the company has an offsetting claim; and/or
- Because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; and/or
- There is some other reason why the demand should be set aside.
Providing the debtor has not defended the claim, we can apply for default judgment. After you receive judgment in your favour, you have the ability to enforce that judgment against the debtor or debtors.
Understanding Your Legal Options in Queensland
Navigating legal disputes in Queensland requires understanding your options and choosing the most suitable course of action. Before initiating court proceedings, it is critical to evaluate whether you have a valid cause of action, the necessary standing, and sufficient evidence to support your case.
Additionally, ensure that your claim falls within the relevant limitation period, as failing to comply with these time limits can jeopardize your case.
Alternative Dispute Resolution (ADR) methods, such as mediation, offer a cost-effective and less adversarial alternative to litigation, allowing parties to settle disputes amicably and avoid prolonged legal battles.
If court proceedings become necessary, the process typically involves filing a claim or application with detailed pleadings that outline the dispute’s core facts.
Depending on the nature and complexity of the case, pre-trial steps like disclosure and interlocutory applications may be required. Settlement offers can be made at any stage to expedite resolution, but parties must prepare thoroughly for trial if the dispute remains unresolved.
Understanding these procedural elements and potential outcomes is essential for effectively navigating the legal system and ensuring the best possible resolution.
FAQs About Commencing Proceedings Against a Person or Company in Queensland
Navigating the legal process to commence proceedings against a person or company in Queensland can be complex and daunting.
This FAQ section provides clear and concise answers to common questions, helping you better understand your options, rights, and the steps involved in resolving disputes effectively.
What is the purpose of commencing legal proceedings?
Legal proceedings aim to recover unpaid debts or damages through court or tribunal intervention. This process provides a formal avenue to resolve disputes and enforce legal rights. It often involves steps like filing claims, mediation, and possibly trial. Seeking legal advice ensures that proceedings are carried out correctly.
What is QCAT, and when should I use it?
The Queensland Civil Administrative Tribunal (QCAT) is a cost-effective option for disputes involving sums up to $25,000. It handles small claims efficiently through a less formal mediation process. Parties represent themselves in QCAT, with legal representation generally not permitted. Mediation aims to achieve amicable resolutions before advancing to a hearing.
What are the monetary limits for Queensland courts?
The Magistrates Court handles claims up to $150,000, while the District Court addresses cases between $150,001 and $750,000. For amounts exceeding $750,000, the matter is taken to the Supreme Court. Each court has its own procedural requirements, making legal guidance valuable.
What is the process for filing a claim in QCAT?
The claimant must submit paperwork detailing the dispute and serve it on the respondent. The respondent has 28 days to settle the debt or respond. If mediation fails, the claim proceeds to a hearing where QCAT decides the outcome. Claims require proper documentation and adherence to tribunal rules.
Can QCAT decisions be enforced directly?
No, QCAT decisions must be registered as a judgment in the Magistrates Court before enforcement. Once registered, enforcement actions like bankruptcy proceedings or writs of execution can be taken. This additional step makes enforcement legally binding. Professional assistance can streamline this process.
What is a statutory demand, and when is it used?
A statutory demand is used to recover debts over $4,000 owed by a company. It is typically issued after obtaining a court judgment, as pre-judgment demands can be challenged. It forces the debtor to either pay the debt or risk insolvency proceedings. Proper drafting of the demand is critical to avoid disputes.
What happens if the respondent does not respond to a claim?
If no response is filed within 28 days, the claimant can apply for a default decision or judgment. This outcome favours the claimant without requiring further hearings. The decision can then be registered for enforcement. Ensuring the correct service of the claim is essential for this process.
What is involved in mediation?
Mediation is a facilitated negotiation aimed at resolving disputes amicably. A neutral mediator guides the parties in reaching a mutually acceptable agreement. It is less formal than court proceedings and often more cost-effective. Successful mediation avoids the need for a trial.
Can a company dispute a statutory demand?
Yes, a company can challenge a statutory demand by demonstrating a genuine dispute or claiming an offsetting amount. Additionally, defects in the demand or substantial injustice can serve as grounds for setting it aside. Legal advice is crucial to counter or defend such claims effectively.
What are the risks of litigation?
Litigation can involve significant time, costs, and uncertainty. Losing a case may result in an adverse costs order, requiring the losing party to pay the winner’s legal fees. Alternative dispute resolution methods like mediation can mitigate these risks. A careful assessment of the case’s merits is advisable.
Can I recover my legal costs?
In Queensland, the general rule is that the losing party pays the winner’s legal costs. However, not all costs are recoverable, and the extent depends on the court or tribunal’s discretion. QCAT offers a lower-cost alternative but may not allow for comprehensive cost recovery. Consult legal counsel for clarity on costs.
What are the requirements for serving a claim?
Claims must be served personally for individuals or via registered post to the registered office for companies. Proper service ensures the respondent is aware of the proceedings. Incorrect service can delay or nullify the process. Compliance with service rules is crucial for the claim’s validity.
How is evidence handled in court proceedings?
Both parties must disclose all relevant documents to support their case. This transparency ensures fair proceedings and allows both sides to prepare adequately. Electronic disclosure is increasingly common to streamline processes. Proper documentation strengthens the case significantly.
What are the benefits of alternative dispute resolution?
Alternative dispute resolution, such as mediation, saves time, costs, and stress compared to litigation. It fosters cooperative resolution, preserving relationships between parties. Courts often encourage or mandate ADR before trial. Exploring these avenues can yield favourable outcomes without prolonged legal battles.
When should I seek legal advice for litigation?
Legal advice is essential when considering complex or high-value claims. An experienced lawyer ensures compliance with procedural rules, improves case presentation, and mitigates risks. Early legal guidance can clarify options like mediation, court claims, or statutory demands. Professional support enhances the chances of a successful resolution.
