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REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM 156. Magistrates in the Local Court should be given power to grant both primary and ancillary equitable relief within the limit of the monetary jurisdiction of the court. 157. The proposed ‘Minor Claims Division’ of the court should have jurisdiction to determine claims for damages. However, in accordance with our Recommendation 372, it should be incorporated into the Western Australian Civil and Administrative Tribunal and subject to the appeal procedures of the Tribunal. Existing Rules of Court Delay The trinity of cost scales that reward activity, fear of being sued for negligence and an adversary based litigation process drive lawyers to leave no stone unturned in litigation at a cost to the parties that is beyond their ability to pay and which often overwhelms the amount of the actual dispute. Andrew Cannon SM, Civil Division, SA Magistrates’ Court (1996) 17.3 The procedure in the Local Court is adversarial. The parties progress the matter by applying to the court to obtain leave to take a step in the action or require the other party to do so. Such a system is open to abuse, particularly for those without legal advice or experience with the system. The procedure is based on the Local Courts Act and the Local Court Rules. The Rules are antiquated, arguably more detailed than they need to be and drafted in an outdated style using archaic language. The Rules are basically incomprehensible and inordinately complicated for use by the increasing number of self-represented litigants in the Local Court. The Government’s proposals to allow the Chief Magistrate together with at least three other magistrates to make rules for the procedure of the Local Court should assist in the reform and on-going revision of the rules. It is imperative that simple, workable new procedures and forms be developed. 17.4 It is hardly surprising that delays and many unproductive interlocutory applications dog Local Court proceedings. Parties are able to put off a detailed consideration of the litigation until the trial. One example under the existing rules is the option available to plaintiffs to issue a plaint containing little information followed by a phrase ‘particulars whereof have been rendered’ and a defendant has the option to avoid providing particulars of the defence until compelled by the plaintiff to do so. In drafting a new procedure we believe the focus should be on the attributes identified by us in Chapter 2. 158. All new Local Court procedures should force the parties to come to terms with and understand the issues and evidence as soon as possible. 159. The rules of the new Civil Division of the Magistrates Court, like other legislation which applies to civil justice (see Recommendations 5 and 6) should state clearly the object of the rules and the context in which proceedings are to be conducted. For example: The Local Court should be managed in order to be expeditious, proportionate, and both procedurally and substantively just. 140

LOCAL COURTS Commencing proceedings in the Local Court 17.5 The 1988 report of this Commission, referred to in this Chapter at 17.2, suggested that the procedure for commencing proceedings in the Local Court should be simplified and proposed that the initiating process itself, or an attached explanatory booklet, should explain the rights of litigants in Local Court proceedings. In keeping with our recommendations in Chapter 9 for the simplification of the means of commencing civil proceedings in the higher courts, we recommend that a simple, standard form Application instead of a plaint should be used to commence all actions in the Local Court. To mark the move to a new procedure and consistent with our proposals in relation to the higher courts, we also propose to call the person initiating the action in the Local Court (previously known as the ‘plaintiff’) an applicant, and the person being sued (previously known as the ‘defendant’) a respondent. 17.6 The Application should be in plain English and should clearly let the respondent know that an action has been commenced, how to respond, and the deadline for response. As developed in the Victorian Magistrates’ Courts, ‘precedents’ for common classes of action commenced in the court should be available to applicants. Increased use of information technology in the justice system could facilitate access to precedents. (See Chapter 35, ‘Technology and Justice’.) As discussed further in Chapter 18, the large number of self-represented litigants in the Local Courts means that special attention should be given to meeting their needs. 160. All Local Court actions should be commenced using a simple standard form Application which is available in a simple booklet that outlines the court’s procedure. 161. The standard form Local Court Application should be in plain English and advise respondents: (1) that legal proceedings have been commenced against them; (2) how to respond; and (3) the deadline for responding. 162. The Local Court should develop (perhaps by way of Practice Directions) plain language forms for various types of common causes of action. These standard forms should be capable of being accessed and, perhaps, completed over the internet, on disk, and at terminals in court registries and public libraries. 163. The Local Court should be particularly sensitive to the special needs of self-represented litigants and those with English as a second language or other special needs, by providing multi-lingual and multiformat guides and materials. 141