Civil disputes

civil action
a court case usually involves private disputes between people or between organisations. Examples include disputes over a contract or agreement.
civil litigants
parties in a civil action
claimant
The party who filed the claim or minor civil claim
defendant
the party named as defendant in a claim or minor civil claim

The Civil Court of the Magistrates Court hears disputes involving the recovery of money.

  • If you need to recover money up to and including $5,000 - file a Minor civil claim.
  • To recover amounts from $5,001 to $50,000 - you will need to file a Civil claim.
  • The Court will deal with disputes of more than $50,000 if everyone involved agrees.

If you are making a claim, you are known as a ‘claimant’ or ‘civil litigant’, and the information on this page is for you.

Applying to recover your money

process server
The process server's main job is to deliver or “serve” legal documents to a defendant or person involved in a court case
affidavit of service
an important document provided by the person serving the document after they have successfully served documents to someone. This affidavit is signed by the server and details the time, date, manner of service, identity of the person served and other details of the job. If a party in the case claims to not have been notified of pending legal action, the affidavit of service can be presented to prove otherwise.

If you have a money dispute, the process to recover that money through the Civil Court starts with one person filing a claim with the courts.

At this point the process is the same for both types of claim.

1. File a claim or minor civil claim

Important: You must correctly identify the party.

2. Notify the other party

The other ‘party’ in the claim is called the defendant.

You must serve the claim on the defendant by following these steps:

  • Step 1 - serve the completed Claim and Notice to Defendant on the defendant. You can do this either:
    • in person (either you or someone else who is over the age of 18 years)
    • by registered post
      This is available from post offices. Ask for a lodgement receipt and delivery confirmation receipt and keep both receipts as they must be attached to the affidavit of service or
    • by engaging a process server (check the Yellow Pages).

    If your claim involves more than one defendant, then you must serve a copy of the Claim and Notice to Defendant on each defendant.

  • Step 2 - wait 21 days from the date of serving the defendant with your claim. Then return to the Court Registry with:
    • your copy of the claim form and
    • the completed affidavit of service.

    If you have served the claim by registered post, attach the signed confirmation slip and postal receipt to your affidavit.

  • Step 3 - you can now ask the Court Registry what the defendant has chosen to do. They might:
    • pay the claim
    • offer a settlement
    • lodge a defence and maybe a counter-claim
    • ignore it.

What happens next will depend on how the defendant responds to the claim.

Settling the dispute without going to court

Defendants often wish to resolve or settle without going to court.

Settlement Agreement

  • If both you and the defendant want to settle, you should put an offer of settlement in writing. This will be known as a Settlement Agreement.
  • Both you and the defendant should sign and date it.
  • Your claim can then be finalised without going to court.
  • You can have the Settlement Agreement made into a Court Order. To do this, both you and the defendant completes a Consent Order form (docx, 17.6 KB) (available online or from a Court Registry).
  • The consent order is filed at the Court Registry. 
  • The consent order can be enforced should you or the defendant not keep to your side of the agreement.

What if the defendant lodges a defence?

If the defendant lodges a defence and the amount of your claim is:

  • $5,000 or less (minor civil claim) - the matter will go to a conciliation conference
  • over $5,000 (civil claim) - the matter will generally go to a directions hearing.

Defence lodged against minor civil claim ($5000 or less)

Conciliation conference

  • The court may order a conciliation conference to help settle or resolve disputes.
  • A conciliator will help you negotiate a settlement that both you and the defendant agree on.

Our page on conciliation conferences has more detailed information about these meetings.

Defence lodged against civil claim (over $5001)

Directions hearing

Direction hearings are informal court hearings held before a Magistrate. At these meetings, you will:

  • discuss the issues in dispute
  • make sure you and the defendant have prepared your cases (for example,  obtained witness statements and photos)
  • discuss resolving or settling  the matter without going to court
  • consider options such as mediation.

The Magistrate may also make other pre-trial orders.

Tell the Magistrate if your witnesses can’t attend court. Your witnesses may be able to give their evidence by affidavit or in a statutory declaration, or by using the court’s video conference facilities.

The defendant ignores the claim

judgment debt
the amount of money that a court has ordered a debtor to pay
judgment debtor
anyone who owes money that the court has ordered them to pay as part of a legal judgment
judgment creditor
a person or organisation that a debt is owed to
default judgment
a judgment given by the court against the defendant in the defendant absence e.g. when the defendant didn't appear at the hearing or have failed to lodge the defence

If the defendant ignores the claim and does not lodge a defence within 21 days, you (as the claimant) can file a default judgment then take out enforcement actions.

Default judgment

File a Default Judgment Form (docx, 15.6 KB) (together with your original claim and affidavit of service) at the Court Registry.

At this point:

  • the person who obtains the judgment is known as the 'judgment creditor'
  • the person who judgment is against is known as the 'judgment debtor'

Enforcement actions

The most common forms of enforcement actions are:

  • a warrant to sell property and
  • a garnishee order.

Warrant to sell property

A warrant to sell property is an enforcement action available to a judgment creditor.

  • The judgment creditor files the Warrant to sell property form (docx, 20.2 KB) at the Court Registry.
  • The Court issues the warrant to a Bailiff or Assistant Bailiff to seize and sell goods owned by the judgment debtor (person ordered to pay money in the judgment) to the value of the amount owing, plus expenses of enforcement.
  • The judgement creditor pays the filing fee on any enforcement process and Bailiff's fee on execution of any enforcement process.

The warrant is valid for 12 months from the date of issue.

The warrant does not allow for the sale of personal clothing or bedding or tools of trade up to a value of $3,000.

Real property (e.g, house and land) can also be seized and sold under a Warrant to Sell Property.

Garnishee order

This is an order made by the court to allow you to recover the judgment debt from:

  • the debtor’s bank account
  • the debtor’s wages
  • people who owe money to the debtor

The person the order is addressed to (the employer, bank or person who owes money to the judgment debtor) is known as ‘the garnishee’.

Garnishee order for wages​

The most common garnishee order is for the judgment debtor’s wages or salary. This order tells the judgment debtor’s employer to take an amount of money from the judgment debtor’s wage and pay it to you until the whole judgment debt is paid off.

The order remains in force until the whole of the judgment debt has been paid or until the court makes other orders.

How to apply

  1. Complete these two forms and file them at the Magistrates Court:
  2. Copies of the Provisional Garnishee Order will be returned to you. Serve a copy of the Provisional Garnishee Order Attaching Earnings form on the judgement debtor and the garnishee.
  3. Complete the affidavit of service.
  4. The defendant and garnishee have 21 days to object. If they don’t, you can file the Final Garnishee Order Attaching Earnings form (docx, 17.0 KB) and the affidavit of service at the Magistrates Court.
  5. Copies of the Final Garnishee Order will be returned to you. Serve a copy of the Final Garnishee Order on the garnishee.
  6. Complete an affidavit of service.

Garnishee order for debts

This order tells the garnishee to pay money they hold on behalf of the judgment debtor to you.

This order can be addressed to:

  • a bank or financial institution where the judgment debtor has an account, or
  • anyone else who holds money on behalf of the debtor, such as a real estate agent who collects rent for the judgment debtor

If you apply for the judgment debtor’s bank account to be garnished, the money held in the account at the date of the order will be taken from the account and sent to you. If this amount does not cover the whole judgment debt, you can apply for another garnishee order.

How to apply

  1. Complete these two forms and file them at the Magistrates Court:
  2. Copies of the Provisional Garnishee Order will be returned to you. Serve a copy of the Provisional Garnishee Order Attaching A Debt form on the judgement debtor and the garnishee.
  3. Complete the affidavits of service.
  4. The defendant and garnishee have 21 days to object. If they don’t, you can file the Final Garnishee Order Attaching A Debt form (docx, 15.2 KB) and the affidavits of service at the Magistrates Court.
  5. Copies of the Final Garnishee Order will be returned to you. Serve a copy of the Final Garnishee Order on the garnishee.
  6. Complete an affidavit of service.

Can I apply to reduce the garnishee payment?

Yes you can if you are the judgment debtor.

How to apply

  1. Complete the following form:
  2. File the original plus 2 copies of this form with the District Registrar of the Magistrates Court Civil Division.
  3. The District Registrar will list the application before a Magistrate, and return 2 copies to you.
  4. You must serve the application on the judgment creditor at least 3 business days before the scheduled court date. The address for service of documents is on the footer of the Provisional Garnishee Order.
  5. If the judgment creditor agrees to reduce the amount of the garnishee, they sign the application at the bottom of the page under “consent” and return it to the Registry.
  6. The District Registrar will cancel the listing before a Magistrate and parties will not be required to attend.
  7. The Registry will issue a court order in the agreed terms to the judgment creditor for service upon the garnishee.
  8. If the judgment creditor does not consent to your application, both the debtor (you) and creditor must attend Court and a Magistrate will determine your application at the scheduled court date.
  9. You must pay the fee.

How to prepare for court

The facts

  • Write down all the facts of your case, in date order.
  • Include times, dates, places and the people involved.

Evidence

  • Gather together all relevant papers, such as invoices, accounts, leases, quotes, bank statements, letters and photographs.

Witnesses

  • Make sure anyone who can be a witness for you can attend court on the day.
  • If your witness can’t attend court, tell the Court or Magistrate at your directions hearing. Your witnesses may be able to give their evidence by affidavit or in a statutory declaration, or by using the court’s video conference facilities.
  • Written witness statements may be used in Court although they may be required to give their evidence in person so that the other party can question them if they choose.
  • Limit the number of witnesses to those necessary, as each witness costs you money to be heard in court. The parties (not the Court) will be responsible for payment of any expenses that your witnesses incur in attending Court.  You may be able to recover those expenses from the other party if you win the case.

What happens at court?

Make sure you:

  • arrive at court on time
  • know your witnesses are there
  • have all the papers you need to show to the court
  • know the facts of your case thoroughly.

Focus on what you want to prove.

Court proceedings

  • You will probably be asked to present your opening summary and evidence first.
  • Speak clearly to the Magistrate. You can read from notes if you feel more confident doing this.
  • Refer to your witnesses as you go through the facts. They will give their evidence after you.
  • You are allowed to put items like photos and documents into evidence. Make sure the defendant knows you’ll be doing this; have copies for them and the Magistrate.
  • Once you have given your evidence, the defendant can ask questions and put their case forward.
  • You can cross examine the defendant on their evidence.
  • The Magistrate may ask questions at any time.
  • Once everyone has spoken, the Magistrate will make their decision.

How does the Magistrate give their decision?

The Magistrate usually gives their decision verbally after hearing from everyone.

This decision is a court order and is enforceable.

Sometimes the Magistrate needs to further consider the law, so they may adjourn or postpone their decision to a later date.

The Magistrate may give written reasons for the decision. If you would like a copy, please ask.

You can appeal the Magistrate’s decision to the Supreme Court.

Can I get free legal advice?

Please visit the Legal Aid Commission of Tasmania website to find information about free legal advice.

Can I apply to set aside default judgment?

set aside
to cancel, annul, or revoke a judgment or order
prejudice
harm or injury that results or may result from some action or judgement

Yes you can if you (as the defendant) believe that the default judgment shouldn’t have been entered against you because you failed to lodge the defence or you didn't appear in court.

How to apply

  1. Complete the following forms
  2. The affidavit must contain enough information to demonstrate:
    1. Why you did not defend the action within the 21 days time limit.
    2. Explain
      • why you did not defend within that time
      • any delay between the date the judgment was entered  and the date you applied to set aside the judgment.
      • You should also know what date the claim  was served on you and what date the judgment was entered, before you provide  this material
    3. That you have a good defence.
      • Set out in detail while being as brief as you can, enough facts or evidence to show that you have a good defence to the claim.
      • It won't be enough to say you believe you have a good defence to the claim, or to just to deny the matters set out in the claim.
      • You must explain what your defence is and why it would justify setting aside the judgment.
    4. That the Claimant will not be prejudiced.
      • This is usually self-evident.
      • Sometimes, particularly if there has been a long delay, the setting aside of the judgment may prejudice the Claimant irreversibly.
      • You may need to provide some material setting out why you believe the Claimant would not be prejudiced by the judgment being set aside.
  3. Get the affidavit sworn before a Justice of the Peace.
  4. File the application and affidavit at the Court Registry.
  5. Serve the application and affidavit on the Claimant, or if the Claimant is represented by a solicitor, on the solicitor.

If you don't file an affidavit with your application or there is not enough detail in the affidavit, the Magistrate may adjourn the matter and order you to pay the costs.

The defendant/applicant usually pays the costs on a successful application.