Commencing Civil Proceedings

The Magistrates' Court of Victoria has jurisdiction to deal with debt recovery claims and damages claims up to the value of $100,000.

Before you issue a Complaint

Going to court should be a last resort. Before issuing a complaint in the Magistrates' Court you must attempt to resolve the dispute directly with the other party. A settlement will save you considerable cost and time. See 'Before Commencing a Civil Proceeding' for further details about what you must do before you issue a complaint.

The Victorian Civil and Administrative Tribunal (VCAT)

If you are in a dispute about the supply of goods or services, VCAT may be able to help you resolve the dispute. Anyone can apply to VCAT to resolve a dispute with a supplier or possible supplier, or purchaser or possible purchaser of goods and services.

VCAT - Civil Claims List                             www.vcat.vic.gov.au
Ground floor 55 King Street
Melbourne Vic 3000
Tel: (03) 9628 9830
Toll free: 1800 133 055

Commencing Legal Action

If you are unable to settle your claim via alternative dispute resolution options provided by the Dispute Settlement Centre of Victoria, or at VCAT, you may wish to pursue your claim with the Magistrates' Court.  Before starting any legal action in relation to civil claims it is recommended that you obtain legal advice from a lawyer.

If you start legal action to recover money, you must file a Form 5A Complaint document with the Magistrates’ Court. The person commencing legal action is called the plaintiff. The person the action is filed against is called the defendant.

The following information is required to complete a complaint:

1) Your details. You must state your name and an address where all court documents can be sent to.

2) The defendant's details. This includes the name and current address of the defendant. You must ensure the defendant’s details are correct. If the defendant is a company, the correct company name and its registered address are required. If the defendant operates as a business you should name the proprietor of the business and indicate that they are trading under a particular business name. For example, Joe Bloggs trading as Bloggs Constructions. You can do a company search at www.asic.gov.au to confirm company details, and confirm the registered address of the company.

3) Statement of Claim. This is a factual description of why the money is owed to you.  The Statement of Claim must describe:

  • The date when the debt arose;
  • The place where the debt arose; and,
  • A full description of the event(s) that demonstrate why the money is owed, set out in numbered paragraphs.
    Include as much detail as possible.

If your claim arises out of a motor vehicle collision and includes a claim for the costs of repairs to the vehicle or total loss of the vehicle, you must attach an itemised quotation of the costs of the repairs or an assessment of the loss to the complaint.

Lodging a Complaint

You must lodge your Form 5A Complaint the court nearest to:

  • the place where the claim arose; or
  • the defendant’s address.

For example: if your claim arose out of a motor vehicle collision which occurred in Heidelberg, and the defendant’s address is in Sunshine, the complaint could be lodged at either Heidelberg or Sunshine courts.

The original complaint is to be filed with the court. Retain two copies for your own records. When the complaint is filed with the court, a cover sheet will be provided to you which states the court case number and date of filing. (This is not usually provided on the spot).

To locate the Court nearest to you go to the Proper Venue page and search by your suburb/town.

When you receive the cover sheet from the court, you must write the case number and date of filing on the copies of the complaint you have retained.
When you file your complaint with the court, you should file your certification forms at the same time. There may be consequences if you do not file these forms. See 'Before Commencing a Civil Proceeding' page for further details.

Filing Fees

The Magistrates' Court General Civil Procedure Rules2010 set out the procedures that must be followed and fees that must be paid when lodging a civil complaint.  The filing fee and service fee can then be claimed as costs in addition to the amount claimed in your complaint. The filing fee for a complaint is set out in the Court Costs and Fees Ready Reckoner which can be downloaded from Related Publications menu.

Service of a Complaint

Service of a complaint refers to providing a valid copy of the complaint to the defendant.

When a complaint has been filed with the court, and a case number and date of filing have been assigned, a copy of the complaint, along with two blank notices of defence, must be served on the defendant within 12 months of the date that the complaint was filed with the court. If the complaint is unable to be served within 12 months, you can apply to the court for the time for service to be extended.

Any person can serve the complaint, however specific requirements apply for service depending on whether the defendant is an individual or a company. It is recommended that you obtain the services of a Process Server who will ensure the complaint is served in the correct manner.

If the defendant is a company, the complaint must be served on the registered address of the company. The registered address of a company can be found by purchasing a full company search at www.asic.gov.au
Once served, the defendant has 21 days to lodge a notice of defence with the court . They must also provide a copy to yourself or your lawyer. No action can be taken during this 21 day period.

Affidavit of Service

After the complaint has been served on the defendant, it is necessary to provide the court with information on how and when the document was served. This is called an Affidavit of Service (Form 6A). The Affidavit of Service must include:

  • The name, address and occupation of the person who served the complaint;
  • The date and place the complaint was served;
  • The method of service;
  • The signature of the person who served the complaint; and,
  • The signature of an authorised person who received (witnessed) the affidavit. 
Area of Legislation: 

Contacts

Contact the Magistrates' Court where your matter is listed or your nearest court. 
Contact details for all Victorian Magistrates' Courts are available under Contact Us

Email: help@magistratescourt.vic.gov.au