Civil Dispute Applications - Guide to Applicants

Background

The ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) gives power to ACAT to hear and determine civil disputes for $10,000 or less. Before February 2009 civil disputes for $10,000 or less were heard by the Small Claims Court or Magistrates Court. Sections 15 to 22 of the ACAT Act are the relevant sections.

The procedure for civil dispute applications is contained in the ACAT Act and the ACT Civil & Administrative Tribunal Directions 2010. The Directions are available at www.acat.act.gov.au.

Jurisdiction

Civil disputes $10,000 and under

A civil dispute application cannot be made to ACAT for an amount greater than $10,000, unless section 20 of the ACAT Act (Abandoning excess to come within jurisdiction) or section 21 (Jurisdiction by agreement – amounts over $10,000) allows the application to be made.

Abandoning excess to come within jurisdiction (ACAT Act, section 20)

A person may make a civil dispute application to the ACAT by limiting a claim to $10,000 and abandoning any excess.

Jurisdiction by agreement – amounts over $10,000 (ACAT Act, section 21)

The ACAT may hear civil dispute applications for more than $10,000 if:

  • a civil dispute application could be made to ACAT but for the $10,000 limit; and
  • the parties agree to the application being decided by the tribunal; and
  • ACAT is satisfied that the parties understand that the amount of the claim in excess of $10,000 is not being abandoned.

Material cause of action to arise in the ACT

Either the respondent must be resident in the A.C.T. or a material part of the cause of action must have arisen in the A.C.T. For example:

  • if the cause of action arose in the A.C.T. but the respondent is resident interstate, ACAT has jurisdiction
  • if the cause of action arose in NSW and the respondent is resident in the A.C.T., ACAT has jurisdiction
  • if the respondent is resident in NSW and the cause of action arose in NSW, then ACAT does not have jurisdiction.

Types of Civil Dispute Applications

Applications or Appeals to the ACT Civil & Administrative Tribunal may incur a filing fee. For details of applicable fees please refer to our schedule of fees on the ACAT web site.

There are nine types of civil dispute which may be heard by the ACAT.

Contract application

  • An application to determine disputes in relation to contracts

Damages application

  • An application to recover damages caused by negligence or tort, except nuisanceor trespass.

Debt application

  • An application to recover a debt.
  • You can also recover interest owing on the debt.

Goods application

  • An application dealing with the provision of goods or services.
  • You can make a goods application for the recovery of the value of goods or services, for the recovery of goods, for the provision of services or for damages caused by the detention of goods.

Nuisance application

  • An application to deal with interference of use of enjoyment of land.
    Example: an overflow from a neighbour’s burst sewerage pipe onto your land
  • You can apply for particular orders to deal with the interference.
    Example: an order requiring the neighbour to repair the burst pipe
  • You can also apply for monetary damages.
    Example: compensation for the cost of cleaning up the overflow

Trespass application

  • An application to deal with an unauthorised entry onto property.
  • If a person remains on your land after being told to leave the person is also trespassing.
  • You can seek monetary damages and/or an order to stop the trespass.
    Example: an order requiring a squatter to leave your land
  • Example: compensation for damage caused by the squatter

Debt declaration application

  • A ‘debt declaration’ is an order of the ACAT declaring the amount, or a maximum amount, you owe to someone else.
  • It could also be an order of the ACAT declaring you are not indebted to the other person at all.

An application stated to be a Civil Dispute Application in an authorising law

Before Making an Application

Before starting an application you should send the other party a letter of demand saying what the dispute is about, what you want and asking for a response within a certain time to try to resolve the issues. You can state in your letter of demand that if no response is received within a certain period of time an application may be made to the ACAT. A letter of demand provides formal notice to the other party of your intention and an opportunity to try and sort things out. The dispute may be resolved without the need to start proceedings in the ACAT.

Completing Your Civil Dispute Application

There is one application form for a civil dispute.

Please complete all relevant details. If you are filling out the form in your own handwriting we suggested that you use CAPITAL letters to ensure that what you write can be easily read. A description of how to complete the application is set out below.

Note

It is the Applicant’s responsibility to pursue a matter. ACAT only issues documents in response to, or on the application of, a party to proceedings.

Applicant’s details, applicant’s representatives details (if any) and respondent’s details

On the first page of the application form you need to complete the details of the parties to the application. The Applicant is the person who is making the application; the Respondent is the party that the proceedings are against.

It is extremely important that these details are correct and that each party is described properly. Throughout the course of proceedings the parties will be referred to as they are shown on the front page of the application form. If the details are incorrect (for instance if you do not describe the respondent properly) or do not provide an address for finding the respondent, delays may result. Any order made against a party that is not properly described may be difficult to enforce.

Applicant’s Details

Individual

  • If the applicant is an individual, details of the person’s full name and address must be completed in the appropriate space.
  • If the applicant is an individual trading as a business name, the full details of all proprietors and the full business name must be given eg. John Smith & Mary Smith trading as ABC.

Address for Service

  • The address you give will be the address to which ACAT will send you notices. This address can be a postal address if you have one but if you use a postal box you must make sure that you clear it regularly.
    PLEASE NOTE that you will be deemed to have been served with, and to be on notice of the contents of any documents sent to this address.
  • It may be necessary for the tribunal to contact you urgently by telephone. Please provide your preferred telephone contact numbers for business hours. If you do not want your telephone number or any part of your address disclosed to the other party please provide these details on a separate document and specifically tell the Deputy Registrar of ACAT of this instruction in writing.

Corporation

  • If the applicant is a company, the full company name and trading name (if applicable) must be shown including the ACN or ARBN.
  • If the applicant is a body corporate, the full name of the body corporate and trading name (if applicable) must be shown.
  • If the applicant is an incorporated association, the full name of the association must be shown.
  • The address of the registered office of the company or the address of the body corporate or association must be shown.
  • For information about how to obtain company and business name searches, see here

Applicant’s Representatives Details

You may be represented in the ACAT by another person who is:

  • entitled to practise as a legal practitioner in the Australian Capital Territory or
  • empowered to do so by Power of Attorney under the Powers of Attorney Act 2006 or
  • a corporation (which includes a body corporate), an officer or employee of the corporation appointed as a representative by a sworn affidavit with supporting documentation.

The details of your representative and of your address for service of documents must be completed in the appropriate space including contact telephone numbers.

If you want to be represented by another person you must lodge with ACAT either (1) a Power of Attorney or (2) an Affidavit by Corporation Representative authorising that person to sign documents on your behalf. The original copy of the Power of Attorney or Affidavit by Corporation Representative is to be lodged with the ACAT.

Examples of Powers of Attorney and of an Affidavit by Corporation Representative are available from the ACAT registry and from the ACAT website.

When you lodge a Power of Attorney / Affidavit by Corporation Representative, the ACAT will give you a registration number. The registration number must be referred to on any later documents lodged with the ACAT where your representative signs documents on your behalf. Please note that your representative must either be able to settle the matter on your behalf or be able to contact you for instructions during the proceedings.

If you are not represented by another person - insert N/A in the space.

Please note that a representative cannot give ACAT direct evidence instead of you in a hearing.

Respondent’s Details

Individual

If the Respondent is an individual, details of the person’s full name and residential/business address must be provided. A post office box address for the Respondent may not be sufficient.

If you have one, please provide a telephone number for the Respondent.

Before commencing proceedings against an individual trading as a business it will be necessary for you to obtain a business name search and file it with the ACAT when lodge your application.

Any fees you have to pay to obtain a business name search can be claimed on your application as an out-of-pocket expense.

A business name search can be obtained from the Office of Regulatory Services Business Names and Associations Register located at 255 Canberra Avenue, FYSHWICK ACT 2609 Telephone 02 6207 0491.

Corporation (Company)

Before commencing proceedings against a company, body corporate or incorporated association you must obtain a company name search / body corporate or incorporated association search and file it with the ACAT when you lodge your application.

The fee for conducting the search can be claimed as an out-of-pocket expense on your application.

If the Respondent is a company its full name must be provided including its A.C.N. The claim must be served on the company’s registered office address.

A company search can be obtained from the Australian Securities & Investment Commission (A.S.I.C.) located on the 5th Floor, 15 London Circuit, Canberra City: Telephone (02) 6250 3800, or online at www.asic.gov.au .

A search for an Incorporated Association or Body Corporate can be made from the Business Names and Associations Registry located at 255 Canberra Avenue, FYSHWICK ACT 2609 Telephone 02 6207 0491.

Previous Attempts to Resolve the Dispute

If there have been earlier attempts to resolve the dispute please tick the appropriate box and give details. An example may be that you have attended mediation through the Conflict Resolution Service or sought an investigation by the ACT Office of Fair Trading.

If no attempts have been made, please indicate this on the form.

Signature

Only you, the Applicant, your legal practitioner, or a person authorised by Power of Attorney/Corporation Representative can sign the civil dispute application. The application and any attachment must be signed and dated. ACAT cannot accept an unsigned application.

Where the Applicant is an individual or individuals trading as a business, one or both of the proprietors must sign the application.

Where the Applicant is a Corporation, the application is to be signed by an individual appointed as a representative by a sworn affidavit with supporting documentation. An example affidavit is available from the ACAT website or ACAT registry.

If you are not represented by a legal practitioner, another person can sign the application on your behalf only when you have authorised that person to do so by Power of Attorney. See notes in previous paragraph “Representation by Another Person - Power of Attorney”

To ensure that ACAT can process your application promptly the capacity of the person signing the document must be indicated where the Applicant is not an individual. For example:

.........................................
Mr John Smith
Legal Practitioner for the Applicant

.........................................
Mr John Smith
Business Proprietor/Partner

.........................................
Mr John Smith
Director

.......................................
Mr John Smith
for the Applicant authorised
by Power of Attorney dated      /     /
Registration No. .......... of 201x

If the identity of the person signing an application on the Applicant’s behalf is unclear the document may be rejected and returned for clarification. This may result in delays.

Type of application

Please indicate the type of application you are making. You should outline what you are claiming from the Respondent, including details of the amount of money you are claiming.

Debt Declaration

A Debt Declaration application cannot be lodged, unless the respondent has served you with a letter of demand. A copy of the letter of demand must be attached to the Debt Declaration application.

Debt Application

Some examples of a debt application are as follows:
For goods sold:

For goods sold and delivered by the Applicant to the Respondent as per invoice/statement/account number dated      /     /     .

For work and labour:

For work and labour performed [and materials supplied] by the claimant for the defendant as per invoice/statement/account number dated     /     /     .

For wages:

The Applicant was employed by the Respondent at premises at .............................. in the Australian Capital Territory from      /     /      to      /     /     .

Please state special conditions of employment which apply to the application eg: leave bonus, superannuation etc] Show all calculations and periods of wages, leave money and superannuation owing

For dishonoured cheque:

For Cheque Number ..................... dated      /       /      for $ ................. drawn on the ................... Bank .................... branch which was returned with the endorsement '...........................................................................................' and bank charges of $.....................

For professional services:

For professional services rendered by the Applicant for the Respondent on or about      /     /      as per invoice/statement/account number dated      /     /     .

It is a good idea to attach copies of any relevant invoices of account.

All Civil Dispute Applications

All applications must show the following:

  • the date the dispute arose, a brief description of what happened. In the case of motor vehicle accident claims, the date and place of the accident, the motor vehicle registration number, etc, must be included;
  • details of any amount claimed;
  • the fee for commencing proceedings;
  • the amount of any search or hearing fees
  • details of interest claimed and whether it is claimed because of a contractual agreement to pay interest or claimed under the ACT Civil and Administrative Tribunal Directions 2009, direction 67 (Court Procedures Rules 2006 rule 3740). A statement outlining how the interest has been calculated is to be shown.

Completing the ‘STATEMENT OF INTEREST CLAIMED’ form

Interest can be claimed from the date the cause of action arose, up until the date of an order in proceedings if there is an agreement to pay interest between the parties or alternatively under the ACT Civil and Administrative Tribunal Directions 2010 (No 1), Direction 31 (formally the Court Procedures Rules 2006, rule 3740).

Lodging the Application - COPIES OF FORMS

When you lodge a civil dispute application with ACAT the following documents are required:

One original set of documents for ACAT and copies for each party to the application plus a copy that will be returned to you. The document set should include:

  • Civil Dispute Application form outlining cause of action (use the form from the website applicable to your dispute)
  • 'Statement of Interest Claimed' form (if applicable)
  • 'Statement of Charges and Out-of-pocket expenses' form (if applicable)

ACAT Officers will check the documents to make sure they are complete and they comply with procedural requirements.

Once the documents are lodged and the prescribed fee is paid the ACAT will allocate a case number to the application. A Deputy Registrar will issue the documents by signing and sealing all copies.

Application Fees

The correct lodgement fee must be inlucded with your application. More information is available from the ACAT Schedule of Fees.

Service of the Originating Application

A civil dispute application may be served by one of the following ways:

  • ACAT can serve your application by pre-paid post; or
  • you may serve your application personally on the Respondent.

If you only know the work address for the Respondent it will be necessary you to serve the Civil Dispute Application on the Respondent personally. You should therefore make an attempt to find a suitable address for service.

Postal Service

ACAT will, by default, send the application to the Respondent by prepaid post, unless you indicate that you want to serve the application by another approved method. Please refer to section 33 of the ACAT Directions.

Personal Service

A civil dispute application may be served by personal service if you think the claim might not reach the Respondent by mail. When ACAT issues the application the following copies will be returned to you:

  • one copy for your own records
  • a copy to serve on the respondent
  • a copy which is required to be returned to the ACAT, once service is effected on the respondent, with a Affidavit of Service completed (see below).

The civil dispute application may be left with someone at the Respondent’s place of residence or business as long as the person is apparently over the age of 16 years of age (try to get the person’s name if you leave the documentation with someone other than the Respondent).

When personal service of the civil dispute application has been made the person who served the documents must complete an Affidavit of Service and have it sworn by a Justice of the Peace within 72 hours. Justices of the Peace are available at the ACAT registry.

The completed Affidavit of Service must be filed with ACAT.

For Personal Service on a Company - The civil dispute application may be left at the Registered Office address or served upon a director.

For Civil Dispute Applications served interstate (including Queanbeyan), Form 4 under the Service and Execution of Process Act 1992 (SEPA) must also be served with the Civil Dispute Application. This form is available from the ACAT Registry.

Procedures Following the Issue of a Civil Dispute Application

Response

A ‘Response’ form will be sent to the respondent with a copy of the civil dispute application by ACAT staff. The response is to be completed by the respondent to indicate either that the application is disputed or that liability is admitted.

Time Limit for Responding

If the application has been served personally on the Respondent, the Respondent has 21 days to file the response with ACAT.

If ACAT has served an application on the Respondent by post, an additional 4 days is added to the time limit requiring a response

Therefore:

personal service

  • 21 days to respond

postal A.C.T

  • 25 days to respond

postal interstate

  • 25 days to respond

A Response could be made by either of the following methods:

  • by lodging a Response which will indicate whether the civil dispute application is disputed in its entirety or whether there is admission of liability in whole or in part.
  • alternatively, payment in full of the amount can be made directly to the Applicant. ACAT should be given notice of the payment.

Please note that ACAT will accept a Response outside the time limits specified above if the Applicant has not filed an Application for Default Judgment.

The Respondent may contact the Applicant direct to attempt to reach an agreement or the amount claimed. If the parties reach an agreement, the ACAT must be notified in writing of the terms of that agreement. This may be done in two ways:

  • By letter or email from both parties; or
  • By completing the ‘Application for Interim or Other Orders’ Form (available from the ACAT website and ACAT registry)

Where the Applicant advises ACAT in writing that an agreement has been reached, ACAT will make a note of the outcome. If the other party defaults on the terms of the agreement, the Applicant will need to apply for Default Judgment in relation to any amount outstanding or for orders in respect of the civil dispute application.

Where both parties reach an agreement, the terms of the agreement can be formally entered into ACAT records by filing an Application for Interim or Other Orders. Where that is done ACAT will enter a Consent Judgment or consent order in the terms of the Application. A Consent Judgment and Order is an enforceable order of the ACAT. If the terms of the Consent Judgment or Order are not complied the Applicant may take enforcement action on any amount that remains outstanding.

If a Consent Judgment or Order has not been entered by ACAT, enforcement action cannot be taken by the Applicant against the Respondent until a Default Judgment application is filed and ACAT has entered final judgment.

A. Procedure where Response not filed or Payment/Arrangement not made (Default Judgment)

If a Response has not been filed, or a payment/arrangement has not been made, the applicant may apply for Default Judgment by filing the ‘Application for Default Judgment’ form. Fresh Statement of Out-of-Pocket Expenses to the Application for Default Judgment, together with original copies of the receipts for the payment of those expenses must be attached.

There are three parts to an ‘Application for Default Judgment’ form

  • for a specified amount stated in the claim;
  • for debt declaration matters; and
  • for amount not stated in claim – damages to be assessed

A specified amount is referred to as a ‘liquidated debt’, for example a straight forward debt which is easy to calculate.

An unspecified amount is referred to as an ‘unliquidated’ amount, for example in a Damages Application where the amount of damages relates to the cost of repairs to a motor vehicle as a result of an accident. The amount of the damage to the motor vehicle needs to be assessed by ACAT.

When the application for Default Judgment is filed a Deputy Registrar will check for completeness. If everything is in order ACAT will enter a judgment for the applicant against the respondent.

Types of Judgment entered by Default

Two types of judgment can be entered by Default depending on the type of matter outlined in the civil dispute application:

  • Default Judgment: For a liquidated or specified amount and Debt Declaration proceedings; and
  • Interim order: For an unliquidated amount or unspecified amount. An Interim Order is also applied for where the type of matter requires orders to be made by the ACAT.

Procedure on the entry of a Default Judgment

A copy of the judgment entered by the ACAT will be forwarded to the applicant. It should be kept.

By Section 71 of the ACT Civil and Administrative Tribunal Act 2008 a money order or non-money order made by ACAT is taken to have been filed in the Magistrates Court for enforcement on the day the order is made. Enforcement action must be taken in the Magistrates Court not ACAT. Information about enforcement may be obtained from the Magistrates Court Registry on (02) 6207 1709.

Procedure on the entry of an Interim Order

A copy of the Interim Order entered by the ACAT will be forwarded to the applicant. It should be kept.

The application will be listed for hearing before a Registrar or a Member for the purpose of assessment. Both parties will be advised in writing of the date and time scheduled for the assessment. The Notice of Hearing for the assessment, will in most cases, be attached to the Interim Order. You must appear on the date specified in the notice. If the Applicant does not appear on the date and time specified, the application may be dismissed.

Procedure on date set for Assessment

An assessment is required in cases where ACAT needs further information about the particulars and the amount claimed in the application. Documents to support the amount claimed need to be provided to the Registrar or Member who conducts the assessment.

Where you are claiming for the cost of repairs as a result of damage you should obtain two quotations from separate organisations so that ACAT can be satisfied that the amount claimed is fair and reasonable. This may apply to roof repairs, damage to house interior or rectification of work previously done.

Motor Vehicle Repairs

Where the application relates to repairs to a motor vehicle as a result of an accident you should obtain two quotations from separate automotive organisations so that ACAT can be satisfied that the amount claimed is fair and reasonable.

If your vehicle is a total loss and a repairer assesses that the cost of repairs will exceed the market value of the vehicle, you should provide ACAT with a Loss Assessor’s report. The report will need to detail the following:

  • The qualifications of the Loss Assessor.
  • The type, age and registration number of the motor vehicle
  • An assessment that the damage to the vehicle is as a result of the accident
  • A statement that the cost of repairs exceeds the market value of the vehicle
  • A statement that indicates the amount of the market value given the vehicle’s age and condition and how that figure is calculated.
  • A statement that indicates the amount that may be realised for salvage.

On the date of the Assessment, the Registrar or Member will consider the documentation provided by the Applicant and make a final judgement or order. Information about enforcement of orders may be obtained from the Magistrates Court.

If the documents at the time of the assessment are incomplete or inadequate ACAT will adjourn the matter to another date.

Judgment/Order made in the absence of a party to proceedings

The ACT Civil and Administrative Tribunal Directions 2010 (No1) state that where a party to proceedings in the ACAT is absent when an order or judgment is made (an ex-parte order), that party must be sent a copy of the order/judgment and receive advice of the options available to them. This occurs regardless of whether the absent party is the Applicant or the Respondent. The party who was absent at the time of the making of an order or judgment against them, may apply to ACAT to have the order or judgment cancelled (set aside).

For example, if the Applicant does not appear before the ACAT on the date and time specified for an Assessment, the Registrar may make an order that their application be dismissed. To have the proceedings restored the Applicant must file an 'Application for Interim or Other Orders' form asking for their application to be restored.

Similarly a respondent may make an application to ACAT to set aside a default judgment. Where an order is set aside the application will be given a date for a conference.

You should note that it is not a given that a default judgement will be set aside. It is a matter for decision by ACAT based on the reasons why the judgement was entered in the first places, and upon what circumstances.

How long is a Judgment valid for?

A final judgment of the ACAT may be enforced for:

  • 6 years from the date of judgment or
  • More than 6 years from the date of judgment, subject to the Magistrate Court’s leave.

B. Procedure where Response Filed

If the respondent files a response the applicant will be sent a copy of the Response Form together with the ‘Admission of Acceptance of Liability’ form (if applicable).

The Response may indicate one of the following:

  • that the Respondent admits liability in whole and makes a proposal as to how an amount owed is to be paid.
  • that the Respondent admits liability in part but also contests part of the application. The Respondent may indicate a proposal as to how the amount admitted to is to be paid and make payments direct to the applicant.
  • that the Respondent contests the application in full and provides details of the dispute. A Respondent may also lodge a counter claim.

In a counter claim the respondent says that he/she/it has a claim against the applicant. A counter claim must include details of the respondent’s claim.

The applicant is entitled to respond to the counter claim in writing and dispute any of the matters set out in the respondent’s counter claim.

The counter claim is the respondent’s action against the applicant. Therefore, in one case before the ACAT there may be an action by the applicant against the respondent and an action by the respondent against the applicant.

Admission of Liability in Whole or in Part

Where the Respondent does (a) or (b) above, the ACAT will send the applicant copies of any documents lodged by the respondent together with an ‘Acceptance of Admission of Liability’ form. The applicant must make a decision as to whether to accept or not accept the amount and the terms submitted by the respondent in partial or in full satisfaction of their application. The applicant must complete and file with ACAT the ‘Acceptance of Admission of Liability’ form indicating in the space provided acceptance or non-acceptance. The time limit for filing the form is 21 days.

When a completed ‘Acceptance of Admission of Liability’ form is reviewed ACAT follows certain procedures. You should discuss what happens in these circumstances with an ACAT officer.

If the applicant does not accept the amount in full satisfaction of the application and/or the respondent files a response (as in (c) above), the Registrar will hold of a Preliminary Conference between the parties to consider the matters in dispute.

Conferences

The ACAT will usually list a case for a conference. You should attend the tribunal on the date notified. You can bring a representative or friend if you like. The aim of the conference is to try and resolve the matter by consent without the need to proceed to a hearing.

You should attend the conference with knowledge of your matter, and with a view to resolving the dispute at the conference.

If the parties cannot come to an agreement, directions for hearing (ie, things the parties will need to do to prepare for the hearing) will be made, and the matter listed for a hearing.

Hearings

When a date for a hearing is fixed written confirmation of the place, time and date of the hearing will be sent to you. At the hearing you will be given the opportunity to call any witnesses on whose evidence you wish to rely and to present any documents that are relevant to your case.

You will be given the opportunity to ask question of any witness called by the other party and to make a submission to the tribunal. If you wish you may also be represented at the hearing by a lawyer.

Ordinarily it is necessary for all parties to attend the hearing on the day but if you or your witness are unable to attend a provision can be made for a person to participate or give evidence by telephone. If you do have difficulty attending the ACAT registry must be advised at least two weeks before the hearing.

Hearings are ordinarily conducted in public and will be recorded. If any party required a record of the proceedings details of the cost and arrangements for purchase of the transcript or recording can be made through the registry.

Dictionary

Applicant – the person making a Civil Dispute Application.

Respondent – the person against whom a Civil Dispute Application is made.

SEP Act – the Service and Execution of Process Act 1992 (Cth), which contains the rules for interstate service of documents.

Default Judgment or Default Order – when the respondent fails to file a formal response within 21/25 days of receiving the Civil Dispute Application, the Applicant may seek a judgment or order against the respondent without a hearing.

ACN - Australian Company Number

ABN –Australian Business Number

Jurisdiction – the rules which govern whether ACAT has legal authority to hear and determine a civil dispute.

Power of Attorney - The appointment of a power of attorney allows someone else to make decisions on your behalf. A proforma Power of Attorney form is available from the ACAT registry and website.