If a party serves you with a Writ & Statement of Claim, and you wish to defend the proceeding, you will need to file a notice of defence. The Writ should contain a deadline by which you are required to file your notice of 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) judgment in default of defence.

Notices of Defence and Pleadings

Notices of defence fall under the broader category of court documents known as pleadings. As such, it is important that you follow the rules of pleading when drafting a notice of defence. The rules of court typically specify the manner in which a notice of defence is to address the allegations made in a statement of claim.

Structuring a Notice of Defence

Ordinarily, the notice of defence must be divided into paragraphs which address each specific allegation in the statement of claim in one of three ways:

  1. Admission of the allegation: A defendant can admit the allegation in part or whole. 
  2. Denial of the allegation: A defendant can deny an allegation in part or whole, but should provide reasons in either case. 
  3. Non-admission of the allegation: A defendant can neither admit nor deny the allegation because it is outside of their knowledge. 

What’s the Difference Between a Denial and a Non-Admission?

The difference between a denial and a non-admission becomes clearer when we look at the nature of civil proceedings in Australia. For a civil claim to succeed, it must be proven on the balance of probabilities meaning a 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 then be proven on the balance of probabilities. 

For a court to accept the facts underlying the denials of allegation, a party must demonstrate these on the balance of probabilities by way of providing supporting evidence of their case.

Non-Admissions

Non-admissions leave the burden of proof to rest with the claimant (or plaintiff) to prove his/her/its claims. If a party does ‘not admit’ a particular claim in its notice of defence, it may be precluded from leading any evidence in relation to that issue at trial. This makes sense because that party has not made any statement of fact regarding that claim in its notice of defence and so it has thereby informed the court that there are no facts which it will seek to prove at trial in relation to it.

On the other hand, where a party denies a specific allegation and refers to facts which negate it, it will be required to prove those facts at the trial to succeed in its defence.

Key Takeaways

It is crucial that parties are aware of the following:

  1. The facts he/she/it must prove for their case to succeed at trial; and
  2. The facts which the other party must prove. 

If the other party is required to prove a fact, then the absence of any evidence on that point at trial will mean that a court cannot make a finding in favour of the other party on that issue. 

Questions about defending court proceedings? Get in touch with our dispute lawyers on 1300 544 755. 

Noam Greenberger

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