Suppose you were unaware of legal proceedings against you. If so, the court proceedings will likely have continued without you and a default judgment may have been entered against you in your absence. You can take steps to have the default judgment removed, and if this is successful, you should understand the process and procedure following these events. This article will discuss what happens after a default judgment is set aside.
How to Remove a Default Judgment
To remove a default judgment successfully, you must establish that:
- there was a reasonable explanation as to why you did not respond to the proceedings or file a defence;
- you have a genuine defence to the other party’s claim; and
- you have not delayed making the application to set aside the default judgment, or if there has been a delay, a reasonable explanation for doing so.
Typically, this will involve filing an application to the court, including an affidavit with a copy of your proposed defence to the claim. If the other party opposes your application, the court will list the matter for hearing and then decide. If the other side agrees to set aside the judgment, the court will make the orders without the hearing.
Filing Your Defence
Consequently, the court will allow you to file your defence or response to the initial statement of claim. In essence, your defence provides your formal response to the issues raised in the statement of claim. It will explain why you disagree with the original claim. As part of your defence, you can address each point raised in the statement of claim by:
- admitting the allegation;
- denying the allegation; or
- making a non-admission (this is typically only used where the allegation is outside your knowledge and you cannot admit or deny it).
Your defence should be completed following the court rules and using the relevant court forms. Furthermore, you must file your defence per the relevant court’s procedural deadlines and original orders. For example, in the NSW Local Court, you typically have 14 days to file a defence once the default judgment is set aside. However, this will depend on the court or registrar’s orders. Once you file your defence, your case will proceed.
Continue reading this article below the formWhat Happens After You File a Defence?
After filing your defence, the court will set down timelines and dates for each party to provide evidence supporting their claim. These orders are usually made during a call-over or directions hearings. The court will also set a trial date to hear your case. The court may make additional orders, including:
- setting out a timetable for parties to file and serve additional pleadings or exchange of evidence;
- allowing extra time to finalise expert evidence; and
- allowing telephone and video conferencing facilities for witnesses who cannot be physically present.
You will most likely need the assistance of a solicitor to advise on your legal position and prepare legal documents and a barrister to assist with court appearances. It is important to familiarise yourself with the relevant court process for your State or Territory.
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What Happens During the Trial?
During the trial, the court will hear both parties’ cases and make a determination. The plaintiff will initially put forward the evidence supporting their claim. You will then have the opportunity to present your evidence to support your defence. Your evidence may include:
- an affidavit by you setting out your version of events;
- an affidavit by your other witnesses; and
- witnesses brought to the stand for questioning.
Each party will have the opportunity to cross-examine the other side’s witnesses during the trial. Once all the evidence has been put forward, parties will usually make closing statements. This is a final summary of why you claim should be successful. Additionally, you may choose to raise key points from cross-examination or re-examination of any witnesses.
Key Takeaways
Once the court sets aside the default judgment, proceedings will be re-opened. You must file a defence in time with the court’s orders. If you are involved with legal proceedings, you should act quickly to meet the court’s deadlines.
If you need help after reopening a case after default judgment, 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
A default judgment is when a court enters a judgment against a defendant without hearing their defence.
To remove a default judgment successfully, you must establish that there was a reasonable explanation as to why you did not respond to the proceedings or file a defence, you have a genuine defence to the other party’s claim and that you have not delayed in making the application to set aside the default judgment, or if there has been a delay, a reasonable explanation for doing so.
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