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Registry CIM Downing Centre 02 9287 7832 Fax 02 9287 7559
[updated June 7, 2000]
INTRODUCTION
copyright D L Dwyer
One strategy for unions to use when seeking redress is to use the small claims procedures of the WR Act.
A small claim is one less than $10,000 (Apr 99). If the claim exceeds the limit, it may be possible to split the claim or waive the excess in order to stay within the jurisdiction.
The claim could be unpaid overtime, unpaid allowances, underpayment of wages (wrongly classified), non payment of benefits etc.
The claim can extend back for 6 years.
The WR Act at s179 allows for small claims. Most importantly they can be made in and local court in Australia. (Petty Sessions, Magistrates or industrial magistrates courts)
The procedure is ideally suited for union officials as the proceedings are less formal and the legal profession might be excluded. The process is simple, reasonably fast and cheap.
The only difficulty is that many union officials are not familiar with Local Court procedures. Further, Magistrates are not dealing with award matters often.
In NSW, we have an Industrial Magistrate and an Industrial Court. This allows for a very simple procedure in NSW. The rest of this article will deal with the NSW State procedures. The Court process is similar in all states.
With all litigation, it is now time to do a sanity check. Why are you doing this? Ultimately, the matter may be heard in a Court with evidence (witnesses, exhibits) and submissions. Before that, there will be a need to consider a compromise, the strength of the case and conciliation proceedings. Be ready and prepare for these developments now.
NEW SOUTH WALES
A claim is commenced with a Summons or Statement of Claim. Forms can be
obtained from the Chief Industrial Magistrates Court Registry.
The Registry is at Room 2123, 121 Macquarie St, Sydney. PH 9258 0080
In this discussion, we will pursue a Small Claim under s379 of the NSW IR Act. The form required is a "Complaint & Summons - Small Claim"
If the Employer is located outside of NSW (eg Telstra), then a special
form must be attached. This is needed as it is served outside the
jurisdiction of NSW.
The form is also available from the Registry. The form is a notice to
the respondent pursuant to the Service and Execution of process Act 1992
and is simply attached.
There should be no difficulty completing the form. Some tips:
You will need to attend the Registry to file the summons with the Court. More tips:
The filing fee in Dec 99 was $52.00. This must be paid when filing. Take cash. Take your diary. The Registry will then determine a date for the first Mention on the matter in the Court. Check your diary to ensure that the date suits. You do not get a lot of choice but any choice helps with a full diary. The date will be 4-6 weeks away. This date is inserted on the Summons.
The summons must then be served. There are several ways. However whatever way, you will need to end up with an affidavit of service. Once the summons is served, the affidavit of service will need to be sworn before a JP or Solicitor. However this can be avoided.
This will be a "Mention" and held at the Chief Industrial Magistrates Court, Level 7, Xerox House, 815-825 George St, Sydney (near Central Station). All Mentions are usually listed for 9am.
A Registrar will usually conduct the Mentions. Unlike Commission matters, you will find that 50 or so other matters may be listed at the same time. You will take your place in the queue. Solicitors usually go early, and will mention short matters. Short matters will be return of subpoenas, adjournments and hearing dates.
Tip: When you find your matter on the list, make a note of the matter. eg matter no 39 on the list for the day. This makes it easy for the Registrar to find the file.
At the mention, you should find the person representing your employer, and discuss your positions. The employer may want an adjournment to get more information. The Summons would have been served on the Head Office and they will need to get details and make a decision on whether to defend the matter, delay the matter, challenge jurisdiction, obtain legal advice, get better facts, make a compromise offer, or even pay in full. A two week adjournment is reasonable in most circumstances.
If a solicitor wishes to represent the employer, then the solicitor must seek leave. If the matter is not highly complex, then leave is likely to be refused.
If the employer does not attend, you should check that an affidavit of service has been filed, in time, and that no message has been left. If this is in order, it is proper to ask for judgment. Do not do this if you know that the employer is going to attend and may be delayed or even "stuffed up". Phone the employer to find out the situation. Ultimately you may get some costs. However, it may go quicker if you give the employer a go to get this procedural matter fixed. You may not want to do this for all employers!
This time you are probably in a position to seek a hearing date. You will need to advise how many witnesses you will call and estimate the length of your case. In Dec 99, the hearing date was about 4-6 months away. Make sure you have your diary and write it in immediately. You will not get any further notice.
If you need employer records, and the employer will not give you access, you will probably issue a subpoena. You should have a clear statement of the records you are seeking. Again you attend the registry and fill out a form "Subpoena for Production". Again a date for the return of subpoena is put on the form. This may be the next hearing date. Consult your diary to make it easy.
On the return date, you should attend the hearing. You can then have access to the documents at the office (at Xerox house) and copies may be made. Usually, you will have to pay for the use of the copier.
The cost of issuing a subpoena was $28.00 (in April 98.)
This is a small claims court and procedure can be informal. The procedure will depend on the complexity of the case. In NSW the registry can give you a short summary outlining how they deal with claims and what you should do.
The NSW court recommends that a short statement be faxed to the registry several days before the hearing. It may also be useful to send a copy to the other side. That way you can arrive expecting the other side to be fully prepared to argue its case. Many new advocates like to withhold their ammunition and take the other side by surprise.
This may seem to be good tactics but the court expects genuine attempts to settle the matter. The other side should not be too surprised. Of course, is ok to surprise them with rebuttal evidence.
A witness statement is a good approach. Your witness may not need to get into the witness box.
Contact the other side and advise them that they should serve you with a copy of any witness statement and submissions. This will shorten the matter when it is dealt with by the magistrate. An agreed statement of facts always pleases a court. Of course, if the other side does not co-operate, you should advise the magistrate that you have attempted to shorten the matter.
Costs will normally follow judgment in the Court.
See NSW IR Act s373
See NSW IR Rules Part 27 Rule 202-217
Interest is paid at Supreme Court rates (s95 NSW SCt Act 1970) and from August 2005, the Uniform Civil Procedures Rules Sch 5. The UCPR are Sch 7 of the Civil Procedure Act 2005) This is calculated at simple interest format. Rates are:
01-09-92 to 31-08-93 11.25% 01-09-93 to 28-02-95 10.50% 01-03-95 to 28-02-97 12.00% 01-03-97 to 31-08-97 10.50% 01-09-97 to 31-08-98 10.00% 31-08-98 to 29-02-00 9.50% 01-03-00 to 31-08-00 10.00% 01-09-00 to 31-08-01 11.00% 01-09-01 to 28-02-02 10.00% 01-03-02 to 9.00% (as at 01-07-05)
177A Definition of court of competent jurisdiction
In this Division:
court of competent jurisdiction means:
(a) a District, County or Local Court; or
(b) a magistrate's court.
(1) Where an employer is required by an award, order or certified agreement to pay an amount to an employee, the employee may, not later than 6 years after the employer was required to make the payment to the employee under the award, order or agreement, sue for the amount of the payment in the Court or in any court of competent jurisdiction.
(2) An employee is entitled to sue under subsection (1) whether the payment was required to be made before or after the commencement of section 11 of the Industrial Relations Legislation Amendment Act (No. 2) 1990.
(3) In this section (in its application to an order made under section 127B):
employee includes an independent contractor;
employer includes a person engaging an independent contractor.
179C Plaintiffs may choose small claims procedure in magistrates' courts
If:
(a) a person starts an action under section 179 in a magistrate's court; and
(b) the person indicates, in a manner prescribed by the regulations under this Act or by rules of court relating to that court, that he or she wants a small claims procedure to apply;
the action is to be dealt with under section 179D.
(1) If an action is to be dealt with under this section, subsections (2), (3) and (4) apply in relation to the action.
(2) The procedure is governed by the following conditions:
(a) the court may not award an amount exceeding $5,000 or such higher amount as is prescribed;
(b) the court may act in an informal manner, is not bound by any rules of evidence, and may act without regard to legal forms and technicalities;
(c) at any stage of the action, the court may amend the papers initiating the action if sufficient notice is given to any party adversely affected by the amendment;
(d) a person is not entitled to be represented by counsel or solicitor unless the court permits;
(e) if the court permits a party to be represented by counsel or solicitor, the court may, if it thinks fit, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.
(3) In a case heard in a court of a Territory:
(a) despite paragraphs (2)(d) and (e), the regulations made under this Act may prohibit or restrict legal representation of the parties; and
(b) the regulations made under this Act may provide for the representation of a party in specified circumstances by an officer or employee of an organisation of employees or of an organisation or association of employers.
(4) In a case heard in a court of a State:
(a) despite paragraphs (2)(d) and (e), if, in a particular proceeding in that court (whatever the nature of the proceeding), the law of the State prohibits or restricts legal representation of the parties-the regulations made under this Act may prohibit or restrict legal representation of the parties to the same extent as that law; and
(b) if, in a particular proceeding in that court (whatever the nature of the proceeding), the law of the State allows representation of a party in that court in some circumstances by officials of bodies representing interests related to the matters in dispute-the regulations made under this Act may provide for representation of a party in specified circumstances by an officer or employee of an organisation of employees or of an organisation or association of employers.
32AA Recovery of wages etc - small claims procedure
(1) For the purposes of paragraph 179C (b) of the Act, the manner in
which a person indicates that he or she wants a small claims procedure
to apply to an action that the person starts in a magistrate's court
is:
(a) by:
(i) endorsing the papers initiating the action with a statement that
the person wants a small claims procedure to apply to the action; or
(ii) lodging with the magistrate's court a paper that identifies the
action and states that the person wants a small claims procedure to
apply to the action; and
(b) by giving a copy of the papers initiating the action, together
with a copy of the paper (if any) mentioned in subparagraph (a) (ii),
to every other party to the action.
(2) Subregulation (1) does not apply to an action that a person starts in a magistrate's court if rules of court relating to that court prescribe the manner in which the person indicates that he or she wants a small claims procedure to apply to the action.
32A Recovery of small claims under award, order, AWA or certified agreement - maximum amount
The prescribed amount for the purposes of paragraph 179D (2) (a) of the Act is $10,000.
379 Small claims procedure
(1) A person who makes an application to an industrial court for an order under this Part may request that the application be dealt with under this section.
(2) An application that the industrial court decides to deal with under this section is called a small claims application.
(3) The maximum amount that the industrial court may order an employer to pay on a small claims application in respect of any one employee is:
(a) except as provided by paragraph (b)-$10,000, or
(b) if some other amount is prescribed by the regulations for the purposes of this section-that other amount.
(4) The industrial court is not bound by the rules of evidence when dealing with a small claims application, but may inform itself of any matter in such manner as the court thinks fit.
(5) A party to proceedings on a small claims application may be represented by an agent, but is not entitled to be represented by an agent who is a practising legal practitioner unless the industrial court so approves. That approval is not to be given unless:
(a) all parties to the proceedings agree, and
(b) the industrial court is satisfied that the parties (other than the party who applies for approval) or any of them will not be disadvantaged.
(6) The approval of the industrial court to be represented by a practising legal practitioner is not required if the practitioner:
(a) represents a corporation and is an officer of the corporation within the meaning of the Corporations Law, or
(b) represents a body corporate constituted under the Strata Titles Act 1973 or the Strata Titles (Leasehold) Act 1986 and is one of the proprietors or lessees constituting the body corporate, or
(c) represents a member of an industrial organisation and is an officer or employee of the organisation, or
(d) represents a member of a State peak council and is an officer or employee of that council.
(7) The approval of the industrial court to be represented by a practising legal practitioner may be given subject to such conditions as the court considers reasonable to ensure that any other party to the proceedings is not disadvantaged by the practitioner appearing in the proceedings.
(8) A contravention of subsections (5)-(7) does not invalidate the proceedings or any order made in those proceedings.
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