In Short
- A notice of defence must respond to each allegation in a statement of claim.
- You can admit, deny, or not admit the claims, each with its own implications.
- Failing to file a notice of defence may result in a default judgment.
Tips for Businesses
If you are served with a Writ and wish to defend the claim, file a notice of defence by the specified deadline. Address each claim carefully: admissions, denials, or non-admissions require different strategies. Missing the deadline can lead to an automatic loss, so seek legal advice early to protect your business.
If a party serves you with a Statement of Claim and you wish to defend the court claim, you will need to file a Defence or a similarly named document, depending on the type and location of the court. The Statement of Claim should contain a deadline by which you must file your Defence with the court and serve it on the other party.
If you fail to adhere to that deadline, the other party may proceed to apply for and obtain a judgment against you. This is called a default judgment, which then becomes enforceable against you. This article explains what a Defence is and how to properly prepare and file one in New South Wales.
Defence and Pleadings
A Defence falls under the broader category of court documents known as pleadings. Pleadings are formal written documents submitted to a court by parties in a legal proceeding, outlining their claims, defences and factual allegations.
A Defence needs to be prepared in a specific form, and it is important that you follow the relevant rules of pleading when drafting a notice of defence. Furthermore, the court rules typically specify how a Defence should address the allegations made in a Statement of Claim.
Structuring a Defence
Ordinarily, the Defence must be divided into paragraphs that address each specific paragraph in the Statement of Claim. You can respond in one of three ways:
- Admission of the Allegation: A defendant can admit an allegation is true in part or whole.
- Denial of the Allegation: A defendant can deny an allegation as untrue in whole or in part and should provide reasons for the denial.
- Non-Admission of the Allegation: A defendant can neither admit nor deny the allegation because they have insufficient knowledge to respond definitively.
What is the Difference Between a Denial and a Non-Admission?
The difference between a denial and a non-admission becomes clearer through the nature of civil proceedings in Australia. For a civil claim to succeed, it must be proven on the ‘balance of probabilities’. This means that the claim is more likely true than untrue. A claim may fail either because it fails to meet this burden of proof or because there is a defence that counteracts it. A defence to succeed must also be proven on the ‘balance of probabilities’.
Denials
For a court to accept the facts underlying the denials of an allegation, a party must demonstrate these by providing supporting evidence of their case. This can be done by:
- providing written correspondence, such as letters or emails;
- ordering expert reports; or
- referring to conversations between the parties.
Additionally, you may wish to have an affidavit prepared. This is a written statement of facts where you swear or affirm that the contents are true. This must also then be witnessed by an authorised witness.
Non-Admissions
Non-admissions leave the burden of proof on the claimant or plaintiff to prove their claims. Generally, if a party does ‘not admit’ a particular claim in their Defence, they may be precluded from filing any evidence concerning that issue at trial. Therefore, you must plead correctly in your Defence.
This guide provides key information on how to manage a business dispute as quickly and cost-effectively as possible.
Filing a Defence
Once you have completed the required formal Defence, you must file it with the court. You can do this:
- in person at the court;
- online using the NSW Online Registry portal; or
- by post to the court (the court’s address will usually be on the Statement of Claim).
Key Takeaways
If you are served with a Statement of Claim, you must file a Defence to avoid a default judgment. You must do so within the given deadline. Additionally, your Defence must address each claim in the Statement of Claim by admitting, denying, or not admitting the allegations, following specific court rules. Once prepared, you can file your Defence in person, online, or by post. It is important that you make the correct pleading as this will affect the evidence you can then submit to the court.
If you are preparing a Defence, our experienced dispute resolution 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 1800 875 477 or visit our membership page.
Frequently Asked Questions
You must file a Defence by the deadline stated in the Statement of Claim to avoid a default judgment. It should address each claim by admitting, denying, or not admitting the allegations.
You can file it in person at the court, online using the NSW Online Registry portal, or by post to the court address listed in the Statement of Claim.
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