The Law Handbook 2024

Chapter 5.2: Are you in debt? 353 If you think that you may have an unfair contract, contact a private solicitor, community legal centre (see Chapter 2.4: Legal services that can help) or ASIC (see contact details above). Procedure after defence is filed In general, all defended matters, except smaller claims (e.g. those for less than $10000 or claims for motor vehicle collisions), are referred to a pre-hearing conference or mediation. Mediation is ordinarily reserved for more complex matters, where the amount in dispute is $30000 or more. In proceedings where the amount in dispute is less than $10000, the matter may proceed straight to arbitration (s 102 Magistrates’ Court Act 1989 (Vic) (‘ MC Act ’)). Pre-hearing conference Pre-hearing conferences are scheduled to take place approximately 8–12 weeks after lodging a defence. Either party can request, or object to, an order to set the matter down for a pre-hearing conference. The advantage of a pre-hearing conference is that if a resolution is reached, the time and expense of the dispute are greatly reduced. Apre-hearingconference is an informal conference between the parties (and their legal representatives) and a Magistrates’ Court registrar. The aim of this conference is to promote a settlement or clarify the issues that are in dispute. It is recommended that you attend a pre-hearing conference with an adviser. The process is informal and discussions are confidential, so no answers given or admissions made in the pre-hearing conference can be used as evidence in any subsequent hearing. There are no costs payable to the court for a pre-hearing conference, unless the costs are payable in relation to an adjournment of the conference. If either party fails to attend a pre-hearing conference, the other party may ask the registrar for an order, resulting in that party winning the case. By Practice Direction No. 2 of 2011 the court may, if requested by a party to the proceeding, conduct the pre-hearing conference by telephone where the location of a party or other relevant person will cause unreasonable expense or inconvenience to that party or person in attending a pre-hearing conference personally. If the dispute is not resolved at the pre-hearing conference, it will be set down for arbitration or hearing, as discussed below. Mediation Following receiving a defence, the Magistrates’ Court may, with or without the consent of the parties, refer the proceeding to mediation. Before mediation is ordered, however, the registrar will inform the parties by written notice that the matter appears to be suitable for mediation. Unless a party raises an issue for consideration, a mediation referral order will be made after 21 days from the date of the notice. Mediation is an informal process where both parties sit down with an independent third party (mediator) to try and reach a resolution to their dispute. The mediator is nominated by the parties, is impartial and assists the negotiation process. The advantage of mediation is that it can resolve the matter relatively quickly while keeping costs to a minimum. Except as all the parties who attend the mediation in writing agree, no evidence can be admitted of anything said or done by any person at the mediation. If either party fails to attend mediation, a magistrate or registrar may make an order, resulting in the defaulting party losing the case. Within seven days of the completion of mediation, the mediator must file a mediation report in form 50A and provide a copy of the report to each party who attended the mediation. Note that with the exception of the Melbourne Magistrates’ Court, if the amount sought against you in the complaint is less than $40000, the proceeding will be automatically referred to mediation. Mediation takes place at the Dispute Settlement Centre of Victoria ( DSCV ). At the Melbourne Magistrates’ Court, when a notice of defence is filed, the parties are notified in writing that mediation is proposed and, barring any objections, a mediation order will be made. Within 14 days after the mediation order is made, the parties must nominate a mediator and inform the court. The mediator may be a registrar of the court, a nationally accredited mediator, or a mediator from the DSCV. Where the parties cannot agree on a mediator, the Magistrates’ Court will select a mediator and appoint the day of mediation. Fees apply to mediation. This process does not apply to claims for damage to property arising out of motor vehicle accidents (where the amount sought is less than $10000) and claims for the recovery of hire car costs only (irrespective of the amount) because these matters are unlikely to be resolved at mediation (see Practice Direction No. 7 of 2016).