If you have been served with a statement of claim, you have options depending on your position as it relates to the other side’s requests. Every court or tribunal in Australia will have particular evidence rules and procedures. This article will outline those particular to the Supreme Court of Queensland.
Responding to a Claim
According to our lawyers, if you have been served with a claim for a matter brought before the Queensland Supreme Court, you have the following options available to you:
- perform the claim as set out in the relevant section (e.g. pay the amount claimed, return a particular item, or perform or cease an action); or
- dispute the claim.
If you intend to comply with the claim, contact the plaintiff and inform them of your decision as soon as possible. If you intend to dispute the claim, you can do so by filing a defence.
Defence
If you decide to file a defence in response to the statement of claim, you will need to complete a number of forms. To file a defence in the Supreme Court of Queensland, you must complete:
- Form 6 – Notice of Intention to Defend; and
- Form 17 – Defence; or
- Form 18 – Defence and Counter Claim.
Irrespective of whether you intend to only file a defence or file both a defence and cross-claim, you will need to complete one of these forms and file it with the completed notice of intention to defend. You must do this within 28 days of the day the other side served you with the claim.
Drafting the Defence
In drafting a defence, you will need to take the court rules into account, much as you would in drafting an originating process (or statement of claim). Importantly, your defence must address each allegation made by the party while filing the claim. In response to each allegation, you can:
- deny the allegation;
- admit the allegation; or
- make a non-admission.
Filing the Defence
Once you have drafted the defence, you must ensure you file in the registry and with the appropriate forms. You will need to file your defence in the same registry as the statement of claim and will need to include your notice of intention to defend (Form 6).
You may technically file the defence at any time before judgment is given. However, it is strongly recommended that you file your defence within 28 days from when you were served the statement of claim. If you file after the 28-day period, you run the risk of:
- having a default judgment made against you; or
- cost orders filed against you.
Counter-Claim
A counter-claim is a claim that you have against the plaintiff. For example, if you believe the plaintiff owes you money rather than the other way around. In filing a counter-claim, you are telling the court that you intend to defend the claim made against you. Further, you are telling them that you believe you have a cause of action against the plaintiff.
In your counter-claim, you must outline the circumstances and facts about how a claim against the plaintiff arises and the requested outcome (relief sought). The other side will have a chance to respond (file a defence) to your counter-claim. Additionally, it will essentially be treated as a separate matter to the originating claim.
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Service
After filing the defence (i.e. a Form 6 and a Form 17/ Form 18), you will need to serve it. Service is the process of formally delivering documents to the other party to a claim.
There are generally two types of service:
- personal; and
- substituted.
Personal Service
Personal service is the default requirement under the law. It is where you take steps to ensure the other party is aware of the claim or defence you have made against them. For example, to effect personal service for an individual, this may involve handing the document to the person or leaving it in their presence and explaining the nature of the document. For a business, personal service can involve leaving a copy of the document at their registered address.
Substituted Service
Where you have not been able to personally serve the other side, you can make an application to the court to serve the documents on the other party by substituted service. Alternative methods of substituted service may include service via email or through social media.
There are a number of facts to take into consideration when applying for substituted service. Importantly, you must be able to demonstrate and provide evidence that:
- you have made all reasonable efforts to effect service;
- you have not been able to serve the other party personally; or
- it is impractical for personal service.
Reply in Response to Defence
Once your defence has been filed and served, the plaintiff must, if they intend to do so, respond to your counter-claim by filing and serving their reply within 14 days. However, if you have filed and served a counter-claim also, they will have 28 days to file their defence.
From our lawyers’ experience, this counter-claim, defence and response process can occur a number of times. This is because parties can ask each other for:
- additional information;
- clarification on certain points; and
consequently raise new claims as more information is provided.
If you need to obtain information from a third party who is not a party to the proceedings (for example, bank transaction records from a financial institution), you will need to complete a Form 21, which is a notice of non-party disclosure.
Going to Trial
Once the claim and defence have been finalised, you and the plaintiff must then sign off on a Form 48, which is a request for trial date. As your matter is in the Supreme Court, before signing off a Form 48, you or your lawyer must fill out and sign the annexure to the practice direction number 9 of 2010. This includes the requirement that there have been considerations to settle the matter, and a ‘trial plan’ has been set out between the parties.
Key Takeaways
Litigation in the Supreme Court of Queensland can be complex. Therefore, you want to ensure you have followed the process correctly, including meeting all deadlines. We would always recommend seeking the advice of an expert lawyer to assist you when served with a statement of claim. If you need help defending the matter or would like some advice, our experienced litigation lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Personal service involves taking steps to ensure the other party is aware of the claim or defence you have made against them. For example, to effecting personal service for an individual may involve handing the document to the person or leaving it in their presence and explaining the nature of the document.
Where you cannot personally serve the other side, you can apply to the court to serve the documents on the other party by substituted service. This may include alternative methods of service such as via email.
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