Making a claim in court

What is this resource?

This resource provides a general overview of the relevant jurisdictions for a bailment dispute when commencing a claim as a consumer, or defending a claim as a service provider.

Your client or the other party can take formal legal action if either side does not wish to participate in ADR, or if the parties have been unable to reach an agreement via ADR.

This resource does not contain extensive information on how to prepare the claims.

This resource includes:

• commencing a claim as a consumer

• defending a claim as a service provider

• tribunals

Commencing a claim as a consumer

A consumer can bring a claim in court relying on the laws of bailment against a service provider seeking orders from the court to put the consumer in the position it would have been in if the service provider had provided the appropriate standard of care. This will ordinarily be the replacement cost or market value of the damaged goods of an equivalent quality or age.

Claims of less than $20,000 are brought and heard in the Small Claims Division of the Local Court. Small claims proceedings are conducted with far less formality than most other civil proceedings and the costs involved in commencing proceedings and litigating a dispute are much smaller.

Claims greater than $20,000 can be brought in the Local, District or Supreme Courts, as determined by the monetary value of the claim.

You should make sure that a consumer’s claim is brought forward promptly. A claim under the laws of bailment and the ACL can be made within six years of the damage being suffered.  If there is a contract, it may seek to reduce this period of time to less than 6 years (noting that this type of clause may not be enforceable under the unfair contracts regime, which we discuss in this resource “Bailment law disputes – Has the common law bailment relationship been modified by contract?“.

A consumer who wishes to initiate court proceedings will need to prepare a statement of claim. A statement of claim is a written statement that sets out the facts of the case and what it is that the client is seeking. The relevant statement of claim form is Form 3A (if legally represented) / Form 3B (if not legally represented), both of which are available on the UCPR Forms website.

The best way to draft a statement of claim is to write a series of numbered short paragraphs, each containing a separate fact that is central to the claim. If the statement of claim does not accurately outline the claim, or if parts of the claim are inadequate or do not comply with the relevant court rules, the court may decide to throw out part of the claim or the whole claim in its entirely.

A statement of claim will (and any other court documents that initiate the court process, such as an application, Summons or Writ of Summons – often called ‘originating process’) need to be provided to the service provider. This process is frequently called “serving” or “the service of” the court documents.

The person serving the statement of claim and other originating process, should prepare an affidavit of service to confirm that the service provider has been validly served with those documents. A template affidavit of service is Form 41, available on the UCPR Forms website.

Defending a claim as a service provider

It is unlikely that a service provider will have a claim against a consumer. A service provider will usually be the defendant to any court proceedings.

In these cases, a service provider will have to file a defence to the statement of claim. The defence will need to explain why the service provider disagrees with the claim and reply to each specific paragraph in the Statement of Claim. A copy of the defence form is Form 7B available on the UCPR Forms website.

A defence will generally need to be prepared within 28 days of being served with the statement of claim.  However, the service provider should check the specific rules of the court in which the claim has been brought to determine the time that they have to respond to the statement of claim and other court documents.

Tribunals

A tribunal can also hear a bailment dispute. Tribunals are less formal than courts and are designed to provide a more accessible, efficient, and less intimidating environment. For example, the NSW Civil & Administrative Tribunal (NCAT) has the jurisdiction to hear claims in NSW up to the value of $100,000. The NCAT may make orders including the payment of money or the fixing/replacement of faulty goods. More information about the NCAT process can be found on the NCAT website.

How to make a referral for pro bono assistance

Justice Connect connects eligible individuals, small business owners and primary producers and community organisations affected by disasters like floods, bushfires, cyclones, and other extreme weather events, with free legal help.

We may be able to match your client with one of our pro bono lawyers for assistance with a dispute regarding bailment.