The Defence
If you are sued, and the proceeding is started by a Claim, and you wish to defend the proceeding, you must file a Notice of Intention to Defend (Form 6). Otherwise the Court will not allow you take a step in the proceeding (unless special permission is granted).
Conditional Notice of Intention to Defend
Alternatively, if you wish to raise a technical point right at the outset and challenge the jurisdiction of the Court to hear the Claim or assert an irregularity with the Court proceeding, you must file a Conditional Notice of Intention to Defend.
If you file Conditional Notice of Intention to Defend, you must apply for an appropriate Order of the Court with 14 days after filing the notice. Attacking a claim on technical grounds can be tricky and seeking legal advice is advisable.
Notice of Intention to Defend
A Notice of Intention to Defend must be filed within 28 days after the claim is served, together with a Defence (Form 17).
A Notice of Intention to Defend, once filed, is formal notice of your intent to defend against the Court proceeding and will contain your contact details and address for service. The Defence will contain the facts you rely upon in defence of the Claim, which must comply with formal and technical rules of pleading.
Defence
In your Defence, you must respond to each allegation contained in the plaintiff’s Statement of Claim with either a denial, a non-admission or an admission, with each type of response having a different effect and consequence.
For instance, if you believe that an allegation is true, you may admit the allegation, in which case the plaintiff is not required to prove the allegation in Court.
If you believe that an allegation is untrue, you may deny the allegation, but you must provide a direct explanation as to why you believe the allegation is untrue.
If you do not know whether the allegation is true or untrue, you may plead a non-admission, in which case the plaintiff is required to prove the allegation in Court and you are not allowed to give or call any evidence in relation to the allegation.
However, you may only plead a nonadmission to an allegation if you have made reasonable inquiries to ascertain whether the allegation is true or untrue and despite your inquiries, you remain uncertain as to the truth or falsity of the allegation.
This obligation is ongoing and if the results of any subsequent inquiries make possible the admission or denial of the allegation, you must amend the defence appropriately.
It should be remembered, when pleading, that if the Court considers that an allegation of fact denied or nonadmitted should have been admitted (thereby sparing the parties and the Court from wasting valuable time and resources), the Court may impose additional costs against the party making the unreasonable the denial or nonadmission.
Finally, it should be remembered that the facts in your Defence, in addition to responding to each of allegations of the Statement of Claim (in order to attack the Claim on its elements), may also raise additional facts to plead affirmative defences, exceptions and set-offs, which may, if proven, exclude liability or mitigate the legal consequences of your conduct.
Counterclaim
This may also be a convenient time to file a Counterclaim with the Defence, if you believe that you have an independent cause of action against the Plaintiff. Subject to necessary changes, the conduct of the Counterclaim will be the same as if you had started a Claim against the Plaintiff.
As with all areas of dispute resolution involving litigation, the rules of pleading and drafting court documents can become complex very quickly. To get advice from expert dispute resolution lawyers, please call Certus Legal Group on 07 3106 3016 or contact us using the form on this page.
This article does not give legal advice and should not be relied upon as such. It is intended to provide general and summary information on legal topics, current at the time of first publication. You should seek professional legal advice before acting or relying on any of the content contained herein.
