I want to defend a case

You have been served with a writ or originating motion. This page will provide you with information on what you need to do to defend your case.

If you want to defend the claim made against you, you will need to file a notice of appearance and defence.

I have been served with a writ or originating motion

Carefully read the information set out under the heading ‘To the Defendant’. This explains your options and the consequences of not responding. It also sets out the details of the claim against you. If you do not take action within the timeframes set out in the writ or originating motion you will be at risk of the court making orders granting what the plaintiff is seeking. Visit I have a default judgment made against me.

If the writ or originating motion is addressed to a company or corporation, an authorised person of that corporation (such as a director) may file a notice of appearance on behalf of the corporation. This is the only step that can be taken without a lawyer. Court permission is required before a person other than a solicitor can act on the corporation’s behalf. For more information visit I want to represent a corporation.

Notice of appearance

If the writ or originating motion requires you to file a notice of appearance you generally need to do so within 10 days from the date you were served with the writ or originating motion.

Extended time frames apply if you were served with a writ or originating motion interstate or outside Australia.

Once you have completed the notice of appearance, you will need to:

  • make three copies
  • sign each copy
  • file all copies with the court.

The court will stamp your notice of appearance with the court seal and provide you with two copies. You will need to serve a sealed copy on the other party.

Once you have filed a notice of appearance you will need to file a defence within 30 days.

Defence

A defence responds to the claims made in the statement of claim of the other party.

A defence is a pleading. For more information, refer to Order 13 of the County Court Civil Procedure Rules 2018.

If you do not file a defence within 30 days of filing a notice of appearance, the other party may ask the Court to enter judgment against you.

The statement of claim will be set out in numbered paragraphs. You will need to respond to each paragraph.

When writing your defence:

  • follow the same numbering as the statement of claim. Your paragraph 1 responds to paragraph 1 of the statement of claim
  • you must say whether you deny, admit, or not admit each of the numbered paragraph in the statement of claim. If you believe the allegation is untrue, you should deny the allegation. If you believe the allegation is true, you should admit the allegation. If an allegation is outside your knowledge at the time of filing your defence you can not admit. If you do not indicate that you deny, admit or not admit an allegation, it is deemed to be admitted
  • if you deny or believe any of the allegations are untrue you will need to explain why you deny the allegations or believe them to be untrue
  • you should not withhold information that is relevant to your defence
  • you are only required to state the key facts, you do not need to provide the evidence you intend to use to prove key facts at this stage of the case.

Once you have completed the defence, file it with the court registry and serve on the other party. If the other party has a solicitor you will need to serve the solicitor with your defence.

You will need to also file an overarching obligations certification and proper basis certification.

Certifications

The Civil Procedure Act 2010 provides for an overarching purpose to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

Overarching obligations certification form

When you sign this form you are confirming you have read and understand your obligations to the court and to other parties.

It is important that you:

  • act honestly at all times
  • not make a claim or defence without a proper basis
  • do not mislead or lie
  • ensure the costs are reasonable and proportionate
  • minimise delay
  • let the other party know about any documents critical to the dispute
  • co-operate with the other party and the Court.

If you do not comply with your obligations you may be penalised. The penalties may include having to pay costs or having your defence struck out.

Once you have read and understood your overarching obligations you will need to complete, sign and file the overarching obligations certification form 4A with the Court .

For more information, refer to section 41 of the Civil Procedure Act 2010.

Proper basis certification form

When you sign this form you are confirming that your claim is genuine.

When you file defence you will need to certify it has a proper basis by using the proper basis certification form 4B.

If you do not it may result in you having to pay costs or having your defence being struck out.

For more information, refer to section 42 of the Civil Procedure Act 2010.

Counterclaim

A defendant may also make a claim against the other party. This is known as a counterclaim and is set out in the same document as the defence. The document should be headed ‘Defence and counterclaim' .

The process for issuing and serving a counterclaim is the same as required for a writ or originating motion. The filing fee is also the same. Visit I want to start a case for more information.

For the rules relating to counterclaims refer to Order 10 of the County Court Civil Procedure Rules 2018.

The information on this page relates to proceedings in the Commercial or Common Law Divisions. If your matter is in the Criminal Division, visit our Criminal Division page.

For an explanation of common legal terms and phrases, please see our glossary.

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Page last updated: 28 November 2018