|An inside look at debt collection by Jim Heath|
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At daybreak I'll be off, to see the Kaukonians about a debt they owe me, an old one and no trifle. -Homer, The Odyssey
IF YOU run a small business, you may be tempted to act like a DIY lawyer. Maybe you've used a lawyer a couple of times to chase debtors, and the process hasn't really seemed that hard. (Beware of that feeling -- but more on that later.)
Anyway, you've discovered the following intriguing fact: you can march down to the Magistrates' Court and fill out a summons yourself. The clerk will help you word it. The court fee is pretty small (remembering the size of those lawyer's bills you've had). And for another modest fee, the court will even have the summons served for you. All this has the same legal force as if the documents had been prepared by a team of QCs.
So far so good. The debtor has 21 days to pay up, or notify the court he intends to defend the action. If he pays before then, well and good. Case closed. You got your money.
But let's say he doesn't pay. He puts in his notice to defend. (Even worse, his lawyer files the notice to defend.) Now what? Let me tell you this: the possible moves open to you, and the countermoves open to the debtor, can create more scenarios than the War Room at the Pentagon. Anything you do, the other side can probably argue about. And anything you do might also trip you up later.
In case you don't believe me, consider this: The Magistrates' Court Civil Procedure Rules 1989, sets out what you can do (and can't). There are 74 pages of small print, with hundreds of topics like "Affidavit by two or more deponents" and "Time for serving interrogatories" and "Counterclaim on stay, etc., of original proceeding."
Right behind all these rules, are 40 pages of forms. These show the correct way to set out official documents. For example, form 4A gives all the right words and layout for a summons. There are forms for "Witness summons for production" and "Warrant to seize property" and "Order that person indebted or employer of judgment debtor give statement" and every other form used in Magistrates' Court proceedings.
If that's not enough detail for you, you can pop down to the Law Book Company and buy a copy of "Australian Civil Procedure," by Bernard C. Cairns. Five hundred and seventy-six pages, to tie it all together for you.
I confess that I've actually read all this stuff. But I also confess that I find it hard to remember. But perhaps I'm not the only one: in Magistrates' Court trials, the lawyers are often the ones carrying a copy of the Rules (the cover smudged from use and no longer its original brilliant white). The rules are complicated. That's the bad news. The rules have to be, to make sure justice is as balanced and fair as possible in all kinds of tangled circumstances.
The good news is that the magistrates will usually be understanding if you don't have a lawyer. If you slip up on a rule -- say you forget to file some affidavit -- the magistrate may stop the proceedings so you can correct your mistake.
So it's possible to go right through a trial without hiring a lawyer. If you sit in at the Court sometime, you'll see that it does happen and that someone acting for himself can win his case.
Should you try? I'd say you probably shouldn't act without a lawyer if it comes to a trial. If you are game to try it yourself up to that point, you may be OK. For example, you can send the summons, wait for the debtor to announce his intention to defend, and then you can list the action for trial. If that's all that happens, you should be OK. As the trial date approaches, the other side may decide to settle. You'll have won, cheaply.
But as soon as anything gets at all tricky, I'd run for a lawyer. Or I'd get a lawyer the instant you find out the debtor has one. And I'd certainly get a lawyer if the trial looks like going ahead. If you've made any small mistakes in the statement of claim in your summons, your lawyer can probably get them corrected -- without delaying the trial.
Why not go to trial yourself? First there are all the procedures you have to get right. You can't just turn up on the day with 10 witnesses and a cardboard box full of papers and go in full hog. Before that stage, the debtor may want 'discovery' (he wants to see some of your papers), and maybe he has 'interrogatories' (he has a few questions for you). If you don't respond, you'll be summonsed and your ignorance will cost you money.
But there's something even more crucial: you probably won't present your case to the best advantage. And you won't find important weaknesses in the debtor's case. Remember: the case wouldn't get to trial unless the debtor was defending himself. He might say you haven't kept your agreement, or you never had a contract at all. Possibly he might be right. Certainly the magistrate is going to give him the same rights to be heard that he'll give you.
But the magistrate can't help you with cross-examination. And if you cross-examine someone yourself, it's like hunting bears by blowing pepper at them. Maybe you know that story? It goes like this:
There was a hunter who was sure that he'd come up with a foolproof way to hunt bears: "It's simple!" he told his friend. "You just fold a piece of paper in half, then pour some pepper in the crease. When you see a bear, you go up to him and blow the pepper in his face. It can't fail!"
The hunter set out to prove it. A few hours later he was back. His clothes were torn, and he was covered with scratches and cuts.
"Jeez!" said his friend. "What happened?"
There was a moan. "It was working fine... But then the bear blew first."
In a trial, questioning the debtor's witnesses is a bit like hunting bears. And if the witness happens to be an expert at something, then you're up against a smart bear -- the sort that might blow first. Even barristers can come unstuck when they cross-examine an expert witness (that is, attack the testimony the expert witness has given).
If you ever feel confident about cross-examining an expert witness, then read the following transcript -- then lie down until your feeling of confidence goes away.
The transcript is from a trial that took place in the United States. A doctor has just given evidence saying he thinks that a cancer cure didn't work, because the patient probably didn't have cancer in the first place. The lawyer on the opposite side now stands up to cross-examine the doctor. The lawyer needs to show that the doctor might be wrong -- that the patient might really have had cancer. But the doctor is stubborn. Very.
Q. Doctor, before you took the stand, did you see this record, Exhibit 40, the hospital record in this case?
A. I glanced at it for two or three minutes before I came into the courtroom but didn't have a chance at all to look at it properly.
Q. You didn't read the entire record while upon the stand, did you?
Q. You don't know now, then, the full contents of this hospital record?
A. I believe I have got the essential parts of it.
Q. But you don't know the full contents?
Q. And without knowing what the full contents are, you don't know whether you have the essential parts or not?
A. I think I know the essential facts in this story and I am prepared to answer questions on it.
Q. Now, what are the essential facts, as you conceive them, in this story?
A. (Describes certain facts.) Then a biopsy operation was performed and some tissue was removed from this area, and I think I saw two pathological reports. In the first report the pathologist was in doubt. He made several suggestions, and in his second report the pathologist stated that he thought it was hemangioendothelioma.
Q. From the facts that you have given us, you have sufficient facts to make your own diagnosis in this case?
A. No, I can't make my own diagnosis without examining the patient and examining the slides, certainly not.
Q. Then you are not able to diagnose this case as not a case of cancer?
A. I never make a diagnosis without examining the patient.
Q. Then, Doctor, as you are here upon the stand now, you do not say that this was not a cancer case?
A. No; I will neither say that it is not nor that it is.
Q. Then, if you don't know whether it was a cancer case or not, you don't know whether in this case a cancer case was cured or not?
A. Not knowing whether it was a cancer or not, the cure is of no importance.
Defendant's lawyer: I will ask to have it stricken out as not responsive.
The judge: answer the question.
A. The answer is no.
Q. Doctor, would the physicians who were in attendance -- that is, those who saw the patient, made the biopsy, saw the X-rays -- be in any better position to pass upon the diagnosis than you would be?
A. Provided they were competent, they would be.
Q. If we assume they are men of ordinary capacity and intelligence, qualified to act in the capacity in which they were acting, they would be in a better position?
A. No, not adequate. They would have to be experts. The answer is no.
Q. Then a man of ordinary capacity, seeing the patient, seeing the X-rays and studying the biopsy, would not be as well qualified as you, sitting here with your greater general knowledge but with your incomplete knowledge of the actual facts?
A. The answer is yes. I believe that I can, with my experience of cancer, review a record and the doctors' reports and make an interpretation of a case which might possibly be more competent than the interpretation of some physicians who have not had a great experience in very difficult and unusual cases.
Q. The question is this: in this case you think that the physicians who examined him at the University of Michigan Hospital, if they were men of ordinary capacity, qualified to practice their respective professions, who had the advantage of studying the X-ray pictures of him, who had had the advantage of seeing him, would not be as well qualified to diagnose this case as you are?
A. No. I have great confidence in the men of the University of Michigan and I would take their interpretations very seriously.
Q. Now, Doctor, do you know how many sections of different parts of the body were taken?
A. I believe, if I interpret that record correctly, that there was one operation and that a specimen was taken from the lesions through the incision. Now, whether the surgeon cut one little specimen or two or three, I don't know.
Q. And did you observe whether or not the bone itself was analysed?
Q. By the pathologist?
A. Yes, it was.
Q. And did you observe the pathologist's finding upon that?
Q. And what was that as you observed it?
A. I indicated to you there were two reports. I think I saw two pathologists' reports.
Q. But did you observe what the diagnosis was as stated in the report?
A. Yes. There were two diagnoses. There were two reports. In the first report, the pathologist said he was in doubt as to the nature of the tumour, and he mentioned several possibilities. In the second report he seemed to be a little more certain, however, that it was hemangioendothelioma.
Q. Doctor, will you show me in the hospital record where the two reports are to which you refer?
A. Here they are.
Q. You are indicating here two sheets, Exhibits 40-e and 40-f, that are immediately adjoining in this record?
A. That is right.
Q. Exhibit 40-e is dated September 1, 1934?
Q. And Exhibit 40-f bears the same date?
A. Yes. So I think it would be the different parts.
Q. Those are the two that you referred to?
Q. Now, Doctor, which one was the first diagnosis he made, that he wasn't satisfied with, that he wanted to make a further report on?
A. I assume this [40-e] was the first one, and this [40-f] was the second; particularly because this shows that there was decalcification. This must have been taken a little later.
Q. Can you tell us which is the first one, Doctor?
A. I just answered the question the best I can.
Q. You say you are assuming; then you can't tell us?
Q. So you can't tell if one or the other of these two reports was the first report?
A. They are dated on the same date.
Q. The question is, you can't tell us whether one or the other is the first report?
A. Yes. I am trying to tell you if you permit me.
Q. Well, I am merely asking you, can you tell us?
A. I can't answer that question with yes or no.
Q. All right. Then you can't say yes or no to that question?
A. No, sir.
Q. Then you don't know which of these two was the first report?
A. Yes, I think I do know.
Q. But you don't know.
A. I think I do.
Q. You think you do, but you really don't know, do you?
A. I think I do.
Q. Well, Doctor, are you willing to say you do know which was the first report?
A. I said I think I know.
Q. Therefore, you are willing to say that you do know which is the first report?
A. I am not absolutely certain of anything.
Q. Now, Doctor, you said in your testimony that you would assume that the report, Exhibit 40-e, first appearing in order in these sheets was the first report. Is that correct?
A. There is no significance to that.
Q. Did you say you would assume it?
A. I think I did say it.
Q. Do you want to withdraw that now?
A. It doesn't make any difference.
Q. Then you don't want to assume that now?
A. It is of no importance in this case whether it is first or second, not in the slightest.
Q. It makes no difference whether the first report in order, or the second report, was first or second in fact?
A. Not the slightest.
Q. They may be concurrent reports then?
A. Still it wouldn't make any difference medically.
Q. So that, for all we know, they were concurrent reports?
A. Maybe they were. I don't know.
Q. Why did you refer to them as the first report and the second report?
A. I looked at the one sheet first and the following sheet second.
Q. Without observing whether one was first or one was second?
A. It makes not the slightest difference medically.
Q. Didn't you want to convey the impression that the pathologist made one report and then felt uncertain in his mind and asked leave to make a second report?
A. I intended no such inference.
Q. You intended no such inference?
A. I don't think so.
Q. Don't you know whether you intended the inference or not?
A. I know I didn't.
Q. Then it isn't true, so far as you know, that the pathologist was in doubt and wanted to have a second biopsy and the second report was filed?
A. The pathologist was in doubt and told us so in his report.
Q. Then it isn't true that the pathologist desired to have a second report, so far as you know?
A. I don't know anything about that here.
Q. Now, you say the pathologist was in doubt as to whether or not this was a cancer?
A. I didn't say that. I said he was in doubt as to the diagnosis.
Q. Was he in doubt as to the diagnosis of cancer?
A. I am not certain about that. I think he was in doubt as to the nature of the lesion, and I ask to see that sentence again.
Q. Well, Doctor, then as you recall the matter, you don't recall that this pathologist had any doubt at all about this being a cancer?
A. Yes. He had doubt of the diagnosis.
Q. He had no doubt about it being cancer, as far as you know?
A. He had doubt of the diagnosis.
Defendant's lawyer: I ask to have that stricken as not responsive.
Judge: it may be.
Defendant's lawyer: Now will you read the question? [Which was done.]
A. I am unwilling to answer the question. I would want to look at the report again. I think there is a little unfairness to ask me any such questions when I tried not to take too much time and read the record.
Q. Now, Doctor, let me ask you this. Didn't you testify that the pathologist was in doubt about it being cancer?
A. If I did say that, I would like to have it read to me.
Q. Didn't you say that?
A. I don't remember.
Q. Did you intend to say that?
There are pages and pages more of this. Anyway, here is the (happy?) ending:
A. I will not answer yes or no. It is not a fair question.
Q. You won't tell us, then, whether or not you were trying to convey the idea that you did not agree with that report?
A. Your Honour, I am trying to say that I am not certain about the diagnosis.
Q. You do not disagree with it?
A. Not being certain, I neither agree nor disagree.
Q. Yes. So all that you do say is that, for all you know, they may be right?
A. They may be right.
Q. And if they are right, the man had cancer?
A. Definitely. Yes.
How would you feel about handling a witness like that? Could you have ever made him admit, "Definitely. Yes."
OK, this is an extreme example. (And a long transcript to have in a book about debt collection.) But the point is the debtor's witnesses may well determine who wins your case. If you don't have the skill to bring out inconsistencies, to show how a witness is colouring the evidence, and isn't remembering something correctly, you are handicapped.
If the debtor has a lawyer, you are really handicapped. His lawyer will go at your witnesses hammer and tongs. (And at you too, if you give evidence.)
It seems to me that if a case is worth fighting in court, it's worth getting a lawyer.
All this complexity may seem 'unfair'. You know: "I know he owes me the money! Why all this?" But maybe the debtor knows he doesn't owe you a penny. What then?
To keep you from killing each other, a court process has evolved that's as fair as anyone can make it. Down the centuries, a subtle collection of rules have been built up that govern what is allowed as evidence in court. The point of it all is to try to make sure that both parties get a fair trial.
Some of the rules of evidence seem arbitrary -- if not strange -- unless you know the reasons for them. It's a handicap not to know them. Why handicap yourself? Pay a lawyer to look after you.
It's true that the magistrate will filter out 'evidence' that isn't solid. But why make things harder? Much better to present a clean case.
NOTE: most cases for less than $5000 go to arbitration, and this is a less formal process than a full trial. (I talk about the details shortly.) In an arbitration, it is sometimes OK to handle things yourself -- but only if the debtor has no lawyer, and his case seems very weak.
IN FARAWAY Debtland, there is a place where you'll find the bones of people who have chased the wrong debtor. It is impressive to look at the bones. There is a mountain of them. Unless you're careful, your bones will make the mountain a little higher.
Why? What's the problem?
Thousands of people sue someone -- or some legal structure -- that's simply not involved! It may take a long time to find that out. It may cost them thousands to find out. And it's all money lost. They can't get back a penny.
If you're handling the legal action yourself -- and that's what we're talking about in this chapter -- then make sure you go after the right debtor. If you start on the wrong foot, even if you bring in a lawyer later, he probably can't fix things. You'll have to start over.
Here are some of the 'people' you can sue:
An individual. Mary-Sue Goodheart. Or Doctor Xavier McPherson. You sold the person something, or did the person some service, for an agreed amount of money. And the scoundrel didn't pay. Right. Go for it! Put that person's name on the summons.
A sole trader. A sole trader may have a trading name: Black Hole Earthmoving. Forget it. Just go after the person behind it -- the individual. Put his name on the summons.
A partnership. Dangerous waters. There can be two partners, or twenty -- or sometimes thousands (as in the big accounting firms). You probably only dealt with one of the partners. Or even just someone who works for the partnership. But someone there owes you money. The safe thing to do is sue everyone in sight: all the partners as a group, and each of them individually, and also the guy you actually dealt with (if he isn't a partner and already on the list anyway). That way you're covered. No one who might be responsible (or own something you can seize later) can wriggle out of it. You can do it all on one summons. Later I'll give you some examples of what can go wrong if you don't do things this way.
A company. If you are sure that you have really been dealing with a company as such, then sue that. A company has a life of its own, legally. It's like a person who can't die, even if the directors die (they are just replaced by other dispensable mortals). It's true that you can kill (liquidate) a company, but you don't do it by killing the people who run it. Legally, a company is very real. It can sue. You can sue it. The company itself can owe you money, no matter how the people who work for it may come and go.
A trust. There are a lot of these around. For example, mine: "Viacorp Pty Ltd as trustee for the James Heath Family Trust". Trusts usually have a trading name tacked on. In my trust, its trading name is "J&E Copywriting." If you sold something to J&E Copywriting, and you got no cheque (heaven forbid), who should you sue? The answer is: that whole long name. You can tack on the trading name too, but it doesn't matter. On the summons you might also use a few abbreviations: "Viacorp Pty Ltd ATF James Heath Family Trust TA J&E Copywriting".
Technically, you could just sue Viacorp Pty Ltd, but that gets messy because Viacorp Pty Ltd might be doing something in addition to acting as a trustee. It could be acting as a trustee for several different trusts, or it could be trading in its own name -- selling used 747s, for example. It might take a lot of sorting out in court to determine which of these trading entities actually owed you the money. Better to be clear, if you can. It will be cheaper.
There are other wrinkles to this as well. The trustee of a trust doesn't have to be a company. It might be two or more people, acting as trustees. For example, if my Family Trust got fed up with Viacorp Pty Ltd as a trustee, the Family Trust could chuck out Viacorp and appoint new trustees: my wife and her brother, say.
If all this doesn't get you worried, it should. It explains why lawyers are so careful -- right at the beginning -- to try to pin down exactly who owes you the money. If a company is involved, or seems to be, the lawyer will do a search at the Corporate Affairs Office to see what the company structure is. He will also trace through and see who is behind a business name.
Even so, it may not be clear who the debtor really is. Is it cunning Mr. Bloomhardy himself, who bought those 500 bags of cement from you? Or was it really his company, Bloomhardy & Foolhardy Pty Ltd? Nothing was put on paper. And your recollection of what Mr. Bloomhardy told you, and what you told him, is getting hazy. A lawyer would probably sue Mr Bloomhardy himself, and also sue his company. Both on the same summons. Then sort out later which is the actual debtor -- or leave it to the magistrate, based on sworn evidence in court.
This uncertainty can seem amusing when it happens to someone else. (Go down to court sometime and watch the proceedings.) But beware: it's no fun at all when it's your money and you chase the wrong debtor. Be careful.
IN 1988, the Magistrates' Court set up a new system to speed things up and cut expenses. It's an arbitration system, a kind of mini-trial. It's much less formal than a trial but just as effective in getting your money. I'll talk about the advantages in a minute. First, here's how the court decides which cases go to arbitration:
1. Your claim has to be for $5000 or less.
2. The case can't be too complicated. Magistrates can usually detect the signs of a complex case by glancing through your claim and the reply the debtor made.
3. The case shouldn't involve a question of fraud. For example: the debtor says he never heard of you, and claims your invoice is an attempt to get money by deception.
4. It would violate common sense to refer the case to arbitration. In the words of the Magistrates' Court Act 1989: "[if] it would be unreasonable for the complaint to be referred to arbitration having regard to its subject-matter, the circumstances of the parties or the interests of any other person likely to be affected by an award under this Division."
In short, if you are claiming less than $5000, your case will probably go to arbitration. This is good news. Arbitration cases move through the system pretty fast. (You should have a decision in about three months from the time you apply for a hearing.*) So you don't have to live to be 107 to get your money.
Even if you don't win the case, the arbitration hearing is your friend. The simplified arbitration procedures save the debtor money in presenting his case, so that if the court decides you have to pick up some of his costs, the bill shouldn't flatten you.
* According to information from the Office of the Chief Magistrate Victoria, for the financial year ended 30 June, 1989. About half the civil cases in the court went to arbitration that year, and half to trial.
REMINDER: in this Chapter, I'm assuming that you're handling things yourself (DIY law). If the debtor goes into arbitration with a lawyer helping him, then I don't recommend you try any heroics. Get your own lawyer in there. Even with a lawyer, it won't be too expensive.** Arbitration procedures are fairly simple (which cuts legal expenses), and your case itself must be fairly simple (otherwise the court wouldn't have allowed it into their arbitration system in the first place). If you have a lawyer, then he'll handle the technicalities and you won't have to worry what to do. But if it's just you against the debtor, with no lawyers, then read the rest of this section.
** With some luck. When this was being written (August, 1990), the Court had plans to put a cap on the costs in arbitrations: $500 for claims up to $3000, and $600 for claims up to $5000. So if you won a case for $2500, for example, the most you could claim for your costs and lawyers fees from the loser would be $500 -- not nearly enough in many cases. So find out how much the cap is, and try to get your lawyer to estimate his costs. Then weigh things up.
THE Magistrate first tries to sort the thing out informally. Common sense, Dutch Uncle, let's be reasonable. If that doesn't work, he'll then hear both sides, as in a trial. But the hearing isn't crushingly formal: "...the Court is not bound by rules of evidence but may inform itself on any matter in such manner as it thinks fit."
You can present evidence orally or in writing. You can bring in witnesses. You can bring in statements signed by people involved in the case (preferably witnessed by a Justice of the Peace, or someone else entitled to witness oaths).
Sometimes the Magistrate will insist that the oral evidence you present be given on oath. He might also insist that any signed statements you bring in be properly witnessed ('affidavits'). It's up to him. It he isn't satisfied with your evidence -- or the debtor's -- or wants some point cleared up, he can stop the proceedings and ask you to come back on a certain date.
When the hearing is finished, the Magistrate makes an 'award' in writing. He may or may not include the reasons for the award. (If you wish, you can ask for the reasons, and you will get them. But you must make the request in writing.) But this is the important point: the award has all the legal weight of a court order that follows a normal trial. You won, and you have the weight of law behind you in collecting your money.
The Magistrate may also 'award costs'. This means the court says you can collect $X from the debtor, to help cover the money it cost you in pursuing him. (Possibly things like xeroxing, secretarial costs... whatever the court thinks is reasonable.) But you can't depend on this -- it's entirely up to the discretion of the court.
NOTE: if the debt is for less than $500, then the court will rarely award any costs.
TIP: if you're completely new to all this, it could be worth asking a lawyer to help you organise your presentation. Ask him what is important legally, and how to establish the points you need to make. But then present the case yourself at the hearing. This is a middle way between doing it all yourself, and letting the lawyer do it all. This gives you a lot of help, but a middle-range lawyer's fee.
And if you win? You get a court order in your favour. This means the argument is over. There is no question that the debtor owes you the money, and he owes it NOW. But to enforce this and collect your money, you may need more help from the court or the sheriff. (See Chapter 7.)
THE advantages are:
THERE aren't any court rules on requesting a pre-conference hearing, and no form to fill out. You can ask the Clerk of the Court in any way you wish, even by telephone. But I recommend writing a simple, but tidy, letter.
First look up the number on the summons form you filled out. Then send a letter, saying something like this:
The Clerk of the Court
RE: No. [summons number] 199_ [fill in year]
I request a pre-hearing conference on this action, because I believe it is a matter that could readily be resolved that way. [Or, if the case is complicated because the debtor is raising all kinds of legal arguments, you might say this instead: "I request a pre-hearing conference on this action, because I believe the complexity of the issues would make it desirable."]
IF THE pre-hearing conference is granted, then prepare for it. Look up all the facts you may want to remember, and organise you papers so you can find things if you need to. Review everything in your mind, so you know what happened when.
Finally, before the conference, try to go in with an open mind. Be ready to negotiate, to give away a little if you need to in order to settle the thing. Control your temper (if you're angry about the debtor). Don't start World War . Remember, this conference can be your cheapest, fastest, and easiest way to get your money.
Possibly the court will beat you to it and summons you to a pre-hearing conference anyway, before you ask them. They can do it, and sometimes they will do it. Problem solved! Organise yourself, and go in with a flexible attitude.