Andrew from Newlands wants to how to defend a case in the Small Claims Court.

He wrote,

Dear SuperSpark,

“I have been summoned to appear in the Small Claims Court and would like to defend. Can you please advise on the procedures to follow?”

SuperSpark replies:

Dear Andrew,

The first thing that you should do is to read everything such as the Summons and the Complaint very carefully.

• Look at what the plaintiff (the person who filed the suit against you) said in the Complaint?
  • Is everything accurate? If not, write down what you think is correct and what you think is incorrect.
  • Write down your side of the story, point by point.
  • Write down what proof you have for your side of the story, point by point.
• Are there differences between the plaintiff’s story of what happened and yours? Are the differences important?
• Figure out how to answer each statement that the plaintiff made. Generally, you will answer the statements with a yes or no.
• Think about whether it would be fair if you paid the plaintiff something. If you think that it would be fair to pay something, is it as much as the other side wants?
• What are the deadlines? When must you respond? Put it on the calendar.
  • You must file a “Notice of Intent to Defend” – which appears on the bottom of the Summons – within 14 days of being served the Summons and Complaint.

Preparing to defend a claim
If you receive a letter of demand, or a summons, and you have a defense, the best thing to do is to set your defense out in a letter or in a “plea” – a document in which you set out in logical sequence, why you deny that the plaintiff’s claim has merit, or why you say that the claim is overstated.

The SCC Act does not require a plea to be filed in response to a claim, but it is a very useful tool for a Commissioner in preparing to hear a case.

If you have a defense, and you have committed it to writing in the form of a letter or a plea, you should make sure that the Clerk has put it in the court file in advance of the hearing.

In preparing the Commissioner will read both sides of the story and will have identified the issues in dispute in advance of the hearing. That will make the inquiry more focused, and probably quicker. You also have less likelihood of some aspect of your plea being overlooked.

Presenting your Defence
At the commencement of proceedings, the Commissioner will call the name of case and if it is your case you will come to the front of the court for your case to be heard.

Hopefully, the Commissioner will have introduced him- or herself before proceedings commence. Generally, a Commissioner will be a relatively experienced attorney, or advocate, in active practice. Commissioners are not paid for what they do and render a service to the State for the advancement of justice. They should be treated with respect and addressed as “Commissioner”.

The inquiry will commence with the evidence of the plaintiff and the plaintiff’s witnesses, thereafter the defendant and witnesses; it often happens that the plaintiff or a witness is recalled to clarify something that arises in the defendant’s evidence.

Every party and witness will be sworn in before giving evidence. You have the option of making an oath to God, or a secular affirmation.

When hearing cases, a Commissioner only sees a group of unknown people in the public gallery at the back of the court. It is usually not apparent to the Commissioner who are litigants, supporters, family, or witnesses.

As a defendant, at the beginning of your evidence, you should tell the Commissioner that you have witnesses present and, in a few sentences, summarize what their evidence will be.

When one party or its witnesses are giving evidence, the other party may not interject or interrupt. You will get your opportunity to state your case; for the orderliness of proceedings, and out of respect for the legal process, you must wait your turn.

You will quickly know whether the Commissioner is adequately prepared for the case. If it appears he is not, when giving evidence, be patient and take the Commissioner in a logical sequence through the relevant events, referring, where necessary, to the documentary or other evidence that supports your case.

Because the court is one of inquiry, you do not have the power to cross-examine the other party or her witnesses. If you want to ask a question of the party or witness, request the Commissioner to be allowed to do so, or suggest the line of inquiry to the Commissioner.

Gotta fly...

SuperSpark