DIY law: taking the wolf by the ear
At daybreak I'll be off,
to see the Kaukonians about a debt they owe me,
an old one and no trifle.
-Homer, The Odyssey
IF YOU run a small business, you may be tempted to act
like a DIY
lawyer. Maybe you've used a lawyer a couple of times
to chase
debtors, and the process hasn't really seemed that
hard. (Beware of
that feeling -- but more on that later.)
Anyway, you've discovered the following intriguing
fact: you can
march down to the Magistrates' Court and fill out a
summons
yourself. The clerk will help you word it. The court
fee is pretty
small (remembering the size of those lawyer's bills
you've had). And for another modest fee, the court
will even have the summons
served for you. All this has the same legal force as
if the
documents had been prepared by a team of QCs.
So far so good. The debtor has 21 days to pay up, or
notify the
court he intends to defend the action. If he pays
before then, well
and good. Case closed. You got your money.
But let's say he doesn't pay. He puts in his notice to
defend. (Even worse, his lawyer files the
notice to defend.) Now what?
Let me tell you this: the possible moves open to you,
and the
countermoves open to the debtor, can create more
scenarios than
the War Room at the Pentagon. Anything you do, the
other side
can probably argue about. And anything you do might
also trip you
up later.
In case you don't believe me, consider this: The
Magistrates' Court
Civil Procedure Rules 1989, sets out what you
can do (and can't). There are 74 pages of small print,
with hundreds of topics like
"Affidavit by two or more deponents" and "Time for
serving
interrogatories" and "Counterclaim on stay, etc., of
original
proceeding."
Right behind all these rules, are 40 pages of
forms. These show the
correct way to set out official documents. For
example, form 4A
gives all the right words and layout for a summons.
There are
forms for "Witness summons for production" and
"Warrant to seize
property" and "Order that person indebted or employer
of judgment
debtor give statement" and every other form used in
Magistrates' Court
proceedings.
If that's not enough detail for you, you can pop down
to the Law
Book Company and buy a copy of "Australian Civil
Procedure," by
Bernard C. Cairns. Five hundred and seventy-six pages,
to tie it all
together for you.
I confess that I've actually read all this stuff. But
I also confess that
I find it hard to remember. But perhaps I'm not the
only one: in
Magistrates' Court trials, the lawyers are often the
ones carrying a
copy of the Rules (the cover smudged from use and no
longer its
original brilliant white). The rules are complicated.
That's the bad news. The rules have to
be, to make sure justice is as balanced and fair as
possible in all
kinds of tangled circumstances.
The good news is that the magistrates will usually be
understanding
if you don't have a lawyer. If you slip up
on a rule -- say you forget
to file some
affidavit -- the magistrate may stop the proceedings
so you can
correct your mistake.
So it's possible to go right through a
trial without hiring a lawyer. If you sit in at the
Court sometime, you'll see that it does happen
and that someone acting for himself can win his case.
Should you try? I'd say you probably shouldn't
act without a lawyer
if it comes to a trial. If you are game to try it
yourself up to that
point, you may be OK. For example, you can send the
summons,
wait for the debtor to announce his intention to
defend, and then
you can list the action for trial. If that's all that
happens, you should
be OK. As the trial date approaches, the other side
may decide to
settle. You'll have won, cheaply.
But as soon as anything gets at all tricky, I'd run
for a lawyer. Or
I'd get a lawyer the instant you find out
the debtor has one. And I'd
certainly get a lawyer if the trial looks like going
ahead. If you've
made any small mistakes in the statement of claim in
your
summons, your lawyer can probably get them corrected
-- without delaying the
trial.
Why not go to trial yourself? First there are all the
procedures you
have to get right. You can't just turn up on the day
with 10
witnesses and a cardboard box full of papers and go in
full hog. Before that stage, the debtor may want
'discovery' (he wants to see
some of your papers), and maybe he has
'interrogatories' (he has a
few questions for you). If you don't
respond, you'll be summonsed
and your ignorance will cost you money.
But there's something even more crucial: you probably
won't
present your case to the best advantage. And you won't
find
important weaknesses in the debtor's case. Remember:
the case
wouldn't get to trial unless the debtor was
defending himself. He
might say you haven't kept your agreement, or you
never had a
contract at all. Possibly he might be right. Certainly
the magistrate
is going to give him the same rights to be heard that
he'll give you.
But the magistrate can't help you with
cross-examination. And if
you cross-examine someone yourself, it's like hunting
bears by
blowing pepper at them. Maybe you know that story? It
goes like
this:
There was a hunter who was sure that he'd come up with
a
foolproof way to hunt bears: "It's simple!" he told
his friend. "You
just fold a piece of paper in half, then pour some
pepper in the
crease. When you see a bear, you go up to him and blow
the pepper
in his face. It can't fail!"
The hunter set out to prove it. A few hours later he
was back. His
clothes were torn, and he was covered with scratches
and cuts.
"Hell!" said his friend, "What happened?"
There was a moan. "It was working fine... But then the
bear blew
first."
In a trial, questioning the debtor's witnesses is a
bit like hunting
bears. And if the witness happens to be an expert at
something, then you're up against a smart bear -- the
sort that might blow first. Even barristers can come
unstuck when they cross-examine an
expert witness (that is, attack the testimony the
expert witness has
given).
If you ever feel confident about cross-examining an
expert witness,
then read the following transcript -- then lie down
until your feeling
of confidence goes away.
The transcript is from a trial that took place in the
United States. A
doctor has just given evidence saying he thinks that a
cancer cure
didn't work, because the patient probably
didn't have cancer in the
first place. The lawyer on the opposite side now
stands up to cross-examine the doctor. The
lawyer needs to show that the doctor
might be wrong -- that the patient might really have
had cancer. But the doctor is stubborn. Very.
Q. Doctor, before you took the stand, did you
see this record,
Exhibit 40, the hospital record in this case?
A. I glanced at it for two or three minutes
before I came into the
courtroom but didn't have a chance at all to look at
it properly.
Q. You didn't read the entire record while
upon the stand, did you?
A. No.
Q. You don't know now, then, the full
contents of this hospital
record?
A. I believe I have got the essential parts
of it.
Q. But you don't know the full contents?
A. No.
Q. And without knowing what the full contents
are, you don't
know whether you have the essential parts or not?
A. I think I know the essential facts in this
story and I am prepared
to answer questions on it.
Q. Now, what are the essential facts, as you
conceive them, in this
story?
A. (Describes certain facts.) Then a biopsy
operation was
performed and some tissue was removed from this area,
and I think
I saw two pathological reports. In the first report
the pathologist
was in doubt. He made several suggestions, and in his
second
report the pathologist stated that he thought it was
hemangioendothelioma.
Q. From the facts that you have given us, you
have sufficient facts
to make your own diagnosis in this case?
A. No, I can't make my own diagnosis without
examining the
patient and examining the slides, certainly not.
Q. Then you are not able to diagnose this
case as not a case of
cancer?
A. I never make a diagnosis without examining
the patient.
Q. Then, Doctor, as you are here upon the
stand now, you do not
say that this was not a cancer case?
A. No; I will neither say that it is not nor
that it is.
Q. Then, if you don't know whether it was a
cancer case or not,
you don't know whether in this case a cancer case was
cured or not?
A. Not knowing whether it was a cancer or
not, the cure is of no
importance.
Defendant's lawyer: I will ask to have it stricken
out as not
responsive.
The judge: answer the question.
A. The answer is no.
Q. Doctor, would the physicians who were in
attendance -- that is,
those who saw the patient, made the biopsy, saw the
X-rays -- be in
any better position to pass upon the diagnosis than
you would be?
A. Provided they were competent, they would
be.
Q. If we assume they are men of ordinary
capacity and
intelligence, qualified to act in the capacity in
which they were
acting, they would be in a better position?
A. No, not adequate. They would have to be
experts. The answer
is no.
Q. Then a man of ordinary capacity, seeing
the patient, seeing the
X-rays and studying the biopsy, would not be as well
qualified as
you, sitting here with your greater general knowledge
but with your
incomplete knowledge of the actual facts?
A. The answer is yes. I believe that I can,
with my experience of
cancer, review a record and the doctors' reports and
make an
interpretation of a case which might possibly be more
competent
than the interpretation of some physicians who have
not had a great
experience in very difficult and unusual cases.
Q. The question is this: in this case you
think that the physicians
who examined him at the University of Michigan
Hospital, if they
were men of ordinary capacity, qualified to practice
their respective professions, who had the advantage of
studying the X-ray pictures
of him, who had had the advantage of seeing him, would
not be as
well qualified to diagnose this case as you are?
A. No. I have great confidence in the men of
the University of
Michigan and I would take their interpretations very
seriously.
Q. Now, Doctor, do you know how many sections
of different
parts of the body were taken?
A. I believe, if I interpret that record
correctly, that there was one
operation and that a specimen was taken from the
lesions through
the incision. Now, whether the surgeon cut one little
specimen or
two or three, I don't know.
Q. And did you observe whether or not the
bone itself was
analysed?
A. Yes.
Q. By the pathologist?
A. Yes, it was.
Q. And did you observe the pathologist's
finding upon that?
A. Yes.
Q. And what was that as you observed it?
A. I indicated to you there were two reports.
I think I saw two
pathologists' reports.
Q. But did you observe what the diagnosis was
as stated in the
report?
A. Yes. There were two diagnoses. There were
two reports. In
the first report, the pathologist said he was in doubt
as to the nature
of the tumour, and he mentioned several possibilities.
In the
second report he seemed to be a little more certain,
however, that it
was hemangioendothelioma.
Q. Doctor, will you show me in the hospital
record where the two
reports are to which you refer?
A. Here they are.
Q. You are indicating here two sheets,
Exhibits 40-e and 40-f, that
are immediately adjoining in this record?
A. That is right.
Q. Exhibit 40-e is dated September 1, 1934?
A. Yes.
Q. And Exhibit 40-f bears the same date?
A. Yes. So I think it would be the different
parts.
Q. Those are the two that you referred to?
A. Yes.
Q. Now, Doctor, which one was the first
diagnosis he made, that
he wasn't satisfied with, that he wanted to make a
further report on?
A. I assume this [40-e] was the first one,
and this [40-f] was the
second; particularly because this shows that there was
decalcification. This must have been taken a little
later.
Q. Can you tell us which is the first one,
Doctor?
A. I just answered the question the best I
can.
Q. You say you are assuming; then
you can't tell us?
A. No.
Q. So you can't tell if one or the other of
these two reports was the
first report?
A. They are dated on the same date.
Q. The question is, you can't tell us whether
one or the other is the
first report?
A. Yes. I am trying to tell you if you permit
me.
Q. Well, I am merely asking you, can you tell
us?
A. I can't answer that question with yes or
no.
Q. All right. Then you can't say yes or no to
that question?
A. No, sir.
Q. Then you don't know which of these two was
the first report?
A. Yes, I think I do know.
Q. But you don't know.
A. I think I do.
Q. You think you do, but you
really don't know, do you?
A. I think I do.
Q. Well, Doctor, are you willing to say you
do know which was
the first report?
A. I said I think I know.
Q. Therefore, you are willing to say that you
do know which is the
first report?
A. I am not absolutely certain of anything.
Q. Now, Doctor, you said in your testimony
that you would
assume that the report, Exhibit 40-e, first appearing
in order in
these sheets was the first report. Is that correct?
A. There is no significance to that.
Q. Did you say you would assume it?
A. I think I did say it.
Q. Do you want to withdraw that now?
A. It doesn't make any difference.
Q. Then you don't want to assume that now?
A. It is of no importance in this case
whether it is first or second,
not in the slightest.
Q. It makes no difference whether the first
report in order, or the
second report, was first or second in fact?
A. Not the slightest.
Q. They may be concurrent reports then?
A. Still it wouldn't make any difference
medically.
Q. So that, for all we know, they were
concurrent reports?
A. Maybe they were. I don't know.
Q. Why did you refer to them as the first
report and the second
report?
A. I looked at the one sheet first and the
following sheet second.
Q. Without observing whether one was first or
one was second?
A. It makes not the slightest difference
medically.
Q. Didn't you want to convey the impression
that the pathologist
made one report and then felt uncertain in his mind
and asked leave
to make a second report?
A. I intended no such inference.
Q. You intended no such inference?
A. I don't think so.
Q. Don't you know whether you intended the
inference or not?
A. I know I didn't.
Q. Then it isn't true, so far as you know,
that the pathologist was in
doubt and wanted to have a second biopsy and the
second report
was filed?
A. The pathologist was in doubt and told us
so in his report.
Q. Then it isn't true that the pathologist
desired to have a second
report, so far as you know?
A. I don't know anything about that here.
Q. Now, you say the pathologist was in doubt
as to whether or not
this was a cancer?
A. I didn't say that. I said he was in doubt
as to the diagnosis.
Q. Was he in doubt as to the diagnosis of
cancer?
A. I am not certain about that. I think he
was in doubt as to the
nature of the lesion, and I ask to see that sentence
again.
Q. Well, Doctor, then as you recall the
matter, you don't recall that
this pathologist had any doubt at all about this being
a cancer?
A. Yes. He had doubt of the diagnosis.
Q. He had no doubt about it being cancer, as
far as you know?
A. He had doubt of the diagnosis.
Defendant's lawyer: I ask to have that stricken as
not responsive.
Judge: it may be.
Defendant's lawyer: Now will you read the
question? [Which was
done.]
A. I am unwilling to answer the question. I
would want to look at
the report again. I think there is a little unfairness
to ask me any
such questions when I tried not to take too much time
and read the
record.
Q. Now, Doctor, let me ask you this. Didn't
you testify that the
pathologist was in doubt about it being cancer?
A. If I did say that, I would like to have it
read to me.
Q. Didn't you say that?
A. I don't remember.
Q. Did you intend to say that?
There are pages and pages
more of this. Anyway, here is the
(happy?) ending:
A. I will not answer yes or no. It is not a
fair question.
Q. You won't tell us, then, whether or not
you were trying to
convey the idea that you did not agree with that
report?
A. Your Honour, I am trying to say that I am
not certain about the
diagnosis.
Q. You do not disagree with it?
A. Not being certain, I neither agree nor
disagree.
Q. Yes. So all that you do say is that, for
all you know, they may
be right?
A. They may be right.
Q. And if they are right, the man had cancer?
A. Definitely. Yes.
How would you feel about handling a witness like that?
Could you
have ever made him admit, "Definitely. Yes."
OK, this is an extreme example. (And a long transcript
to have in a
book about debt collection.) But the point is the
debtor's witnesses
may well determine who wins your case. If
you don't have the skill
to bring out inconsistencies, to show how a witness is
colouring the
evidence, and isn't remembering something correctly,
you are
handicapped.
If the debtor has a lawyer, you are really
handicapped. His lawyer
will go at your witnesses hammer and tongs. (And at
you too, if
you give evidence.)
It seems to me that if a case is worth fighting in
court, it's worth
getting a lawyer.
All this complexity may seem 'unfair'. You know: "I
know he
owes me the money! Why all this?" But maybe the debtor
knows
he doesn't owe you a penny. What then?
To keep you from killing each other, a court process
has evolved
that's as fair as anyone can make it. Down the
centuries, a subtle
collection of rules have been built up that govern
what is allowed as
evidence in court. The point of it all is to try to
make sure that both
parties get a fair trial.
Some of the rules of evidence seem arbitrary -- if not
strange --
unless you know the reasons for them. It's a handicap
not to know
them. Why handicap yourself? Pay a lawyer to look
after you.
It's true that the magistrate will filter out
'evidence' that isn't solid. But why make things
harder? Much better to present a clean case.
NOTE: most cases for less than
$5000 go to arbitration, and this is a less formal
process than a full trial. (I talk about the details
shortly.) In an arbitration, it is sometimes OK to
handle things yourself -- but only if the debtor has
no lawyer, and his case seems very weak.
Don't sue George when Harry owes you the money
IN FARAWAY Debtland, there is a place where you'll
find the
bones of people who have chased the wrong debtor. It
is
impressive to look at the bones. There is a mountain
of them. Unless you're careful, your bones will make
the mountain a little
higher.
Why? What's the problem?
Thousands of people sue someone -- or some legal
structure --
that's simply not involved! It may take a long time to
find that out. It may cost them thousands to find out.
And it's all money lost. They can't get back a penny.
If you're handling the legal action yourself -- and
that's what we're
talking about in this chapter -- then make sure you go
after the right
debtor. If you start on the wrong foot, even if you
bring in a lawyer
later, he probably can't fix things. You'll
have to start over.
Here are some of the 'people' you can sue:
An individual. Mary-Sue Goodheart. Or Doctor
Xavier
McPherson. You sold the person something, or did the
person
some service, for an agreed amount of money. And the
scoundrel
didn't pay. Right. Go for it! Put that person's name
on the
summons.
A sole trader. A sole trader may have a trading
name: Black Hole
Earthmoving. Forget it. Just go after the person
behind it -- the
individual. Put his name on the summons.
A partnership. Dangerous waters. There can be
two partners, or
twenty -- or sometimes thousands (as in the big
accounting firms). You probably only dealt with one of
the partners. Or even just
someone who works for the partnership. But
someone there owes
you money. The safe thing to do is sue everyone in
sight: all the
partners as a group, and each of them individually,
and also the guy
you actually dealt with (if he isn't a partner and
already on the list
anyway). That way you're covered. No one who
might be responsible (or own something you can
seize later) can wriggle out
of it. You can do it all on one summons. Later I'll
give you some
examples of what can go wrong if you don't
do things this way.
A company. If you are sure that you have
really been dealing with
a company as such, then sue that. A company has a life
of its own,
legally. It's like a person who can't die, even if the
directors die
(they are just replaced by other dispensable mortals).
It's true that
you can kill (liquidate) a company, but you don't do
it by killing the
people who run it. Legally, a company is very real. It
can sue. You can sue it. The company itself can owe
you money, no matter
how the people who work for it may come and go.
A trust. There are a lot of these around. For
example, mine: "Viacorp Pty Ltd as trustee for the
James Heath Family Trust". Trusts usually have a
trading name tacked on. In my trust, its
trading name is "J&E Copywriting." If you sold
something to
J&E Copywriting, and you got no cheque, who should
you sue? The answer
is: that whole long name. You can tack on the trading
name too,
but it doesn't matter. On the summons you might also
use a few
abbreviations: "Viacorp Pty Ltd ATF James Heath Family
Trust
TA J&E Copywriting".
Technically, you could just sue Viacorp Pty Ltd, but
that gets messy
because Viacorp Pty Ltd might be doing something in
addition to
acting as a trustee. It could be acting as a trustee
for several
different trusts, or it could be trading in its own
name -- selling
used 747s, for example. It might take a lot of sorting
out in court to
determine which of these trading entities actually
owed you the
money. Better to be clear, if you can. It will be
cheaper.
There are other wrinkles to this as well. The trustee
of a trust
doesn't have to be a company. It might be
two or more people,
acting as trustees. For example, if my Family Trust
got fed up with
Viacorp Pty Ltd as a trustee, the Family Trust could
chuck out
Viacorp and appoint new trustees: my wife and her
brother, say.
If all this doesn't get you worried, it should.
It explains why
lawyers are so careful -- right at the beginning -- to
try to pin down
exactly who owes you the money. If a company is
involved, or
seems to be, the lawyer will do a search at the
Corporate Affairs
Office to see what the company structure is. He will
also trace
through and see who is behind a business name.
Even so, it may not be clear who the debtor really is.
Is it cunning
Mr. Bloomhardy himself, who bought those 500 bags of
cement
from you? Or was it really his company, Bloomhardy
& Foolhardy
Pty Ltd? Nothing was put on paper. And your
recollection of what
Mr. Bloomhardy told you, and what you told him, is
getting hazy. A lawyer would probably sue Mr
Bloomhardy himself, and also sue
his company. Both on the same summons. Then sort out
later
which is the actual debtor -- or leave it to the
magistrate, based on
sworn evidence in court.
This uncertainty can seem amusing when it happens to
someone
else. (Go down to court sometime and watch the
proceedings.) But
beware: it's no fun at all when it's your
money and you chase the
wrong debtor. Be careful.
If it goes to arbitration, you're lucky
IN 1988, the Magistrates' Court set up a new system to
speed things
up and cut expenses. It's an arbitration system, a
kind of mini-trial. It's much less formal than a trial
but just as effective in getting your
money. I'll talk about the advantages in a minute.
First, here's how
the court decides which cases go to arbitration:
1. Your claim has to be for $5000 or less.
2. The case can't be too complicated.
Magistrates can usually detect the signs of a complex
case by glancing through your claim and the reply the
debtor made.
3. The case shouldn't involve a question of
fraud. For example: the debtor says he never
heard of you, and claims your invoice is an attempt to
get money by deception.
4. It would violate common sense to refer the
case to arbitration. In the words of the
Magistrates' Court Act 1989: "[if] it would be
unreasonable for the complaint to be referred to
arbitration having regard to its subject-matter, the
circumstances of the parties or the interests of any
other person likely to be affected by an award under
this Division."
In short, if you are claiming less than $5000, your
case will
probably go to arbitration. This is good
news. Arbitration cases
move through the system pretty fast. (You should have
a decision in about three months from the time you
apply for a hearing.*) So you don't have to live to be
107 to get
your money.
Even if you don't win the case, the
arbitration hearing is your
friend. The simplified arbitration procedures save the
debtor
money in presenting his case, so that if the court
decides you have
to pick up some of his costs, the bill shouldn't
flatten you.
* According to information from the
Office of the Chief Magistrate
Victoria, for
the financial year ended 30 June, 1989. About half
the civil cases in the court went
to arbitration that year, and half to trial.
REMINDER: in this Chapter, I'm
assuming that you're handling
things yourself (DIY law). If the debtor goes into
arbitration with a
lawyer helping him, then I don't recommend
you try any heroics. Get your own lawyer in there.
Even with a lawyer,
it won't be too expensive.** Arbitration procedures
are fairly simple
(which cuts legal expenses), and your case itself must
be fairly
simple (otherwise the court wouldn't have allowed it
into their
arbitration system in the first place). If you have a
lawyer, then
he'll handle the technicalities and you won't have to
worry what to
do. But if it's just you against the debtor, with
no lawyers, then
read the rest of this section.
** With some luck. When this was
being written (August, 1990), the
Court had
plans to put a cap on the costs in arbitrations:
$500 for claims up to $3000, and
$600 for claims up to $5000. So if you won a case
for $2500, for example, the most
you could claim for your costs and lawyers fees from
the loser would be $500 -- not
nearly enough in many cases. So find out how much
the cap is, and try to get your
lawyer to estimate his costs. Then weigh things up.
How arbitration works
THE Magistrate first tries to sort the thing out
informally. Common sense, Dutch Uncle, let's be
reasonable. If that doesn't
work, he'll then hear both sides, as in a trial. But
the hearing isn't
crushingly formal: "...the Court is not bound by rules
of evidence
but may inform itself on any matter in such manner as
it thinks fit."
You can present evidence orally or in writing. You can
bring in
witnesses. You can bring in statements signed by
people involved
in the case (preferably witnessed by a Justice of the
Peace, or
someone else entitled to witness oaths).
Sometimes the Magistrate will insist that the oral
evidence you
present be given on oath. He might also insist
that any signed
statements you bring in be properly witnessed
('affidavits'). It's up
to him. It he isn't satisfied with your evidence -- or
the debtor's --
or wants some point cleared up, he can stop the
proceedings and ask you to come back on a certain
date.
When the hearing is finished, the Magistrate makes an
'award' in
writing. He may or may not include the reasons for the
award. (If
you wish, you can ask for the reasons, and you will
get them. But
you must make the request in writing.) But this is the
important
point: the award has all the legal weight of a court
order that
follows a normal trial. You won, and you have the
weight of law
behind you in collecting your money.
The Magistrate may also 'award costs'. This means the
court says
you can collect $X from the debtor, to help cover the
money it cost
you in pursuing him. (Possibly things like
photocopying, secretarial
costs... whatever the court thinks is reasonable.) But
you can't
depend on this -- it's entirely up to the discretion
of the court.
NOTE: if the debt is for less than
$500, then the court will rarely
award any costs.
TIP: if you're completely new to all
this, it could be worth asking a
lawyer to help you organise your presentation. Ask him
what is
important legally, and how to establish the points you
need to
make. But then present the case yourself at the
hearing. This is a
middle way between doing it all yourself, and letting
the lawyer do
it all. This gives you a lot of help, but a
middle-range lawyer's fee.
And if you win? You get a court order in your favour.
This means
the argument is over. There is no question that the
debtor owes you
the money, and he owes it NOW. But to enforce this and
collect
your money, you may need more help from the court or
the sheriff. (See Chapter 7.)
But if you can, get a pre-hearing conference
THE advantages are:
- It very often works! It's an informal and private
session, but tends
to bring the debtor to his senses. He realises what
he is up against,
all the legal trouble and hassles he is facing, and
the common sense
of settling the thing right then.
- If the court grants a pre-hearing conference, it
will probably take
place long before you could get a formal hearing
(that is, a trial or
arbitration). So if things are settled at the
pre-hearing conference,
you've gained a lot of time.
- If you reach a settlement at the pre-hearing
conference, then it
becomes binding: the Magistrate (or registrar)
refers it back to the
court to make a formal order.
- If the debtor doesn't show up, the court will
probably make a
formal order that lets you proceed as if the debtor
had filed no
notice of defence. You win by default.
- The proceedings are entirely off the record. Even
if you mess
things up, and admit something you possibly
shouldn't have, it
won't go against you at a later hearing. So you can
safely stand
against both the debtor and his lawyer.
How to do it
THERE aren't any court rules on requesting a
pre-conference
hearing, and no form to fill out. You can ask the
Clerk of the Court
in any way you wish, even by telephone. But I
recommend writing
a simple, but tidy, letter.
First look up the number on the summons form you
filled out. Then send a letter, saying something like
this:
The Clerk of the Court
Magistrates' Court
[Address]
Dear Sir
RE: No. [summons number] 199_ [fill in year]
I request a pre-hearing conference on this action,
because I believe
it is a matter that could readily be resolved that
way. [Or, if the
case is complicated because the debtor is raising all
kinds of legal
arguments, you might say this instead: "I request a
pre-hearing
conference on this action, because I believe the
complexity of the
issues would make it desirable."]
Yours faithfully
Ned Kelly
Stage two
IF THE pre-hearing conference is granted, then prepare
for it. Look
up all the facts you may want to remember, and
organise your papers so you can find things if you
need to. Review everything in your mind, so you know
what
happened when.
Finally, before the conference, try to go in
with an open mind. Be
ready to negotiate, to give away a little if you need
to in order to
settle the thing. Control your temper (if you're angry
about the
debtor). Don't start a World War . Remember, this
conference can
be your cheapest, fastest, and easiest way to get
your money.
Possibly the court will beat you to it and summons you
to a pre-hearing conference anyway,
before you ask them. They can do it,
and sometimes they will do it. Problem solved!
Organise yourself,
and go in with a flexible attitude.
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