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When you’re involved in a legal dispute as a defendant, and the other party serves you with court documents, you may have questions about how to proceed with a trial. In particular, you will probably have a lot of questions about how you can go about defending a case in court, be it the Magistrate’s Court, District Court or Supreme Court. If you choose to defend the matter, it’s essential to understand the general court procedure. You should always get legal advice to help you make the best decision if you go to trial. This article will answer five frequently asked questions about defending a case in court.

1. Can the Court Dismiss a Case?

Sometimes, a court has the power to dismiss a case brought by a party (the plaintiff) against you (the defendant). This is called a ‘summary dismissal’. This is when a court terminates court proceedings in their early stages in favour of a defendant.

There are certain reasons a court can order a summary dismissal of a case. These are if:

The Case Brought by the Plaintiff is ‘Frivolous’ or ‘Vexatious’.

‘Frivolous’ generally means that the case:

  • has no reasonable grounds (i.e. if there is a lack of evidence);
  • has no importance or value; or
  • lacks seriousness or sense. 

The term ‘vexatious’ includes where the case:

  •  is an abuse of the court’s process (i.e. if it wastes the court’s time and resources);
  •  is brought for an inappropriate purpose; or
  •  has no reasonable grounds.

There is no Reasonable Cause of Action

The court will usually consider if the plaintiff’s claim has a reasonable cause of action or any chance of success. The court is usually reluctant to dismiss a case (or part of it) if the claim is not expressed enough in the court documents or if there are gaps in the evidence. 

The Case is an Abuse of the Court’s Process

This includes where the:

  • case is brought for an improper purpose (i.e. the other party is trying to bring issues to court that have already been decided); and
  • claim is small and involves a lot of costs and time to determine. 

You can apply to the court for summary dismissal of a case against you (or part of it) for any one or more of these reasons. This is definitely a strong option when you are defending a case in court.

2. Can I Make My Own Claim Regarding the Matter?

When the plaintiff brings a case against you, you may not only try defending a case in court but also bringing your own claim against them, another defendant or another person who is a third party. This is called a cross-claim (or counterclaim). 

You can make a cross-claim against:

  • the plaintiff, about a related or separate claim, if you also suffered some loss or damage because of their actions; and
  • another defendant or a third party (that is not already part of the case) if you suffered some loss or damage because of their actions, or if that other defendant/third party is responsible for the plaintiff’s loss or damage. Your claim is limited to what is relevant to the plaintiff’s claim in this situation. 

As a defendant, you will need to provide adequate evidence to back up your claims, and you can seek legal advice to help you do so.

Just filing a defence in court will not give you the right to compensation for loss or damage. Therefore, a cross-claim is a good option to help you recover losses from the plaintiff or another defendant.

3. Can I Settle the Matter Once a Court Case Has Started?

Yes, you can reach an agreement with the other party at any point throughout the court process before the court makes a final decision (a judgment). 

You can take part in ongoing negotiations outside of court proceedings with the other side. This can involve discussing confidential offers to settle. Alternatively, you can use more formal dispute resolution processes to resolve the case, such as a settlement conference, mediation or arbitration.

settlement conference is a meeting, usually conducted by the parties directly or together with their lawyers, to settle the dispute or reduce the issues in dispute. 

Mediation and arbitration will usually involve a facilitated negotiation. This means a negotiation where an independent person tries to help you and the other party resolve your issues. 

If you reach an agreement to settle the dispute outside of court proceedings, you will usually sign a ‘deed of settlement’ with the other party. This is a document that sets out the agreed terms of the settlement. If this happens, you and the other party will then tell the court that you have resolved the matter so that they can dismiss the case. It would be best to seek legal advice before signing such a document.

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4. Will I Have to Pay the Other Side’s Costs if I Lose?

If the court makes a judgment and decides the case against you, you usually have to pay at least some of the other party’s legal costs (including disbursements).

After a judgment, the court will usually consider whether or not they will make you pay the other party’s court fees and other legal costs. The factors that the court will consider can differ significantly between cases.

Some of the most important factors that may influence what amount you have to pay are:

  • the type of court (some courts have specific rules or limits on how much they can award); and
  • whether you or the other party had made any offers to settle the case.

5. What Happens if I Cannot Satisfy a Judgment Made Against Me?

After a long and expensive court case, you may end up unable to pay the money required under a Court judgment. What happens next?

First, you should always consider the risk of losing a case before starting or defending a case in court. This means that you may try to make settlement arrangements to avoid being in a difficult situation later on.

However, if a judgment made against you requires you to pay court fees that you cannot pay, you may be able to agree on a repayment plan with the other side. If they disagree, you can still make an application to the court for an instalment order. If this is granted, the court will arrange a repayment plan for you to pay out the legal costs over some time. This could be in weekly, fortnightly or monthly instalments, for example. 

If you cannot pay the amount of money required by a court judgement, the other side can also take further legal action against you to recover that money. This is often referred to as ‘enforcement action’. Enforcement action is very serious and can have negative financial and reputational consequences. 

If you are an individual, enforcement action can include orders where the court: 

  • directs the sheriff to seize and sell your personal property or your house; 
  • directs your employer to take money out of your wages; or
  • declares you bankrupt. 

If the court makes a judgement against your company, enforcement action could also include a court order to wind up your company. 

Key Takeaways

There are several elements to consider when you are faced with defending a matter in court and if a judgment is made against you. It is always best to seek legal advice from experienced lawyers who can assist you if a court case is brought against you or if a court makes a judgement against you. This can help you prepare evidence and avoid unnecessary court fees. If you have any questions regarding dispute resolution, contact LegalVision’s dispute resolution lawyers today on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

Can I only make a cross-claim against the plaintiff (other party) of a matter?

You can make a cross-claim against the plaintiff, or another defendant/third party not already part of the case. You will first have to determine if you have suffered because of their actions, or if they are responsible for the plaintiff’s loss.

How can I settle the matter once the court case has already started?

You can informally negotiate with the other side to reach a settlement agreement. You can also use more formal processes such as a settlement conference, arbitration or mediation.


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