Drafting a Defence - tips and examples
This factsheet should be used when you have been served with a claim and statement of claim. If you want to defend the claim, you need to file a defence.
You have 28 days from the date you were served with the claim to file your defence. This may seem like plenty of time. However, your defence may be the single most important court document that you draft in the proceedings, so you should start preparing as soon as possible to ensure there is enough time to obtain any advice or assistance you might require.
It is up to you to make sure that your defence is filed in the registry by the due date. If you do not file a defence by the due date, the plaintiff may be entitled to act as though you have decided not to defend the claim, and obtain default judgment in their favour without any further notice to you.
If you have been served with court documents that seem similar to a claim and statement of claim, but are titled "originating application" and "affidavit", you only need to file a notice of address for service. You are not required to file a defence at this stage.
Before we get started
In this factsheet, "UCPR" means Uniform Civil Procedure Rules 1999.
The UCPR is the formal rules that set out how civil court claims must be conducted, from the start of the proceedings in court right through to what to do when the court has made final orders after the trial. If you ever need to know what the next step is in your court proceedings, or how to complete a particular step, you can look it up in the UCPR.
The UCPR is kept updated online under the Supreme Court Act at here.
The format of the defence must also comply with the UCPR. You can access a defence form from the Queensland Courts Website.
Drafting a defence
The first thing to consider is whether you want to defend the claim. There are some circumstances where you may agree that you owe the plaintiff the whole of the amount being claimed. If so, it may be cheaper to negotiate payment of the debt, rather than defending the claim.
If you do want to defend the claim, you need to complete two court forms:
- UCPR Form 6 A Notice of Intention to Defend: This form lets the plaintiff know that you intend to resist their claim. It also provides your contact details for future communication.
- UCPR Form 17 The Defence: This is where you set out the reasons why you are defending the claim - why the plaintiff should not be awarded the damages they are after.
Both of these forms are available from the Queensland Courts Website.
More information about the notice of intention to defend is set out in Chapter 5 of the UCPR.
This factsheet will help you complete the defence.
Step 1: Respond to the allegations
The most important task of your defence is to respond to the allegations made by the plaintiff in the statement of claim.
To commence proceedings, the plaintiff has filed two court documents - a claim (Form 2), and a statement of claim (Form 16). When drafting your defence, you need to respond to the statement of claim, which will be the longer of the two documents.
The statement of claim should be drafted as a series of numbered paragraphs, sometimes with sub-paragraphs. View each of those numbered paragraphs as a separate allegation that you must respond to. To make your defence easy to read, and to help ensure you respond to all of the paragraphs, you can respond to each paragraph in turn using the same numbering as in the statement of claim.
For each of the allegations in the statement of claim, you must say whether the allegation is:
True (or admitted), for example:
"In respect to paragraph 1, the defendant admits the allegations"
False (or denied), for example:
"In respect to paragraph 6, the defendant denies the allegations because…"
Not admitted, for example:
"In respect to paragraph 8, the defendant does not admit the allegations because…"
If you do not respond to an allegation, the court can assume that you have admitted the allegation, so it is important to make sure you have addressed all of the allegations (rule 166 UCPR).
If you are satisfied that an allegation is true, you should admit the allegation.
You can often admit a lot of the allegations in a statement of claim and still draft a successful defence.
If you do not admit the allegation, the plaintiff can assume that it is contested and will set about gathering evidence to prove the allegation. This may have adverse consequences for you, and could make the proceedings unnecessarily lengthy.
If you believe an allegation is untrue, you should deny the allegation.
A statement of claim might read like this:
5. On 1 May 2006, the plaintiff and the defendant entered into a written contract for the sale of the property.
A non-complying defence would read as follows:
5. The defendant denies the allegations contained in paragraph 5 of the statement of claim because it is not true.
If you deny an allegation, you must include reasons why - that is, your alternative version of the key facts. A better defence would be:
5. In respect to paragraph 5, the defendant denies the allegations because: a. The allegations are, as a matter of fact untrue; b. On 1 May 2006, the plaintiff gave the defendant a written contract for the sale of the property which the plaintiff had signed; c. The defendant did not ever sign the contract; d. The defendant never agreed to purchase the property from the plaintiff.
See rule 166 of the UCPR for more information about how to deny an allegation and the effect that a denial will have on the future of the proceedings.
You only have a short amount of time to prepare your defence and many of the allegations in the statement of claim may be outside your knowledge at this point. You can take the third option for those allegations - a non admission. For example:
12. In respect to paragraph 12 of the statement of claim, the defendant does not admit the allegations because it has not completed its investigations and does not know whether the allegations are true or false. The defendant will plead further once its investigations are complete.
Once again, you need to provide a reason why the allegation is not being admitted. If it is because you have not completed your investigations, you have an obligation to set about investigating the allegation and you should amend your defence in due course to clarify your position.
Rule 166 of the UCPR sets out the obligations that you will have if you plead a non admission in your defence.
Step 2: Make sure you have argued a defence
If you have responded to all of the allegations, you are most of the way there. However, it is also important to make sure that you have put forward your reason as to why the plaintiff should not be entitled to the damages claimed.
If you think that you need to include more key facts in order to properly set out your defence, simply add additional, numbered paragraphs to the end of your defence. This must include any material facts you will rely on to defend the claim at trial that you have not already included. You must not take the other party by surprise at trial - all of the key facts you want to rely on must be included in your defence (UCPR rule 149). For example:
15. When the plaintiff gave the defendant the written contract signed by the plaintiff, the defendant told the plaintiff that the property was too expensive and she would not sign the contract.
16. From that time, the defendant did not see or communicate with the plaintiff.
There may also be particular types of defences that you could be required to particularise, such as the defences of performance of a contract, contributory negligence or waiver (to name just a few). Check rule 150 of the UCPR to ensure that there are no additional matters that you need to specifically plead in your defence.
At the same time, you must also be succinct - your defence must be as brief as the key facts allow. If your defence is unreasonably long, it could make the proceedings lengthy and difficult to defend, or you may find that parts of your defence are 'struck out'. Rule 149 of the UCPR provides more information about this.
More detailed information about how to draft a defence is set out at Chapter 6 of the UCPR.
Step 3: Filing and service
"Filing" a document means placing a copy of the document on the court's file, which is held at the court's registry. The contact details of each court registry are available on the Queensland Courts Website.
Keep both your notice of intention to defend and your defence together - those 2 documents combined make up your defence.
You are required to file your defence (along with your notice of intention to defend) in the same court registry where the plaintiff's claim has been filed. And remember, you must do this within 28 days of the date that you were served with the plaintiff's claim.
You can file your defence:
- In person: by taking two copies of your defence to the registry in person; or
- By post: by sending two copies of your defence, with a reply-paid self-addressed envelope, to the registry to be filed (it is up to you to ensure the documents are received by the court registry on time).
You do not need to pay any fees when filing your defence.
The registry will stamp and retain one of the copies of your defence. This will be kept on the court's file. The registry will also stamp the second copy and return that to you.
You must then serve a copy of the defence on the plaintiff (and on any other parties, such as other defendants). You must serve the defence as soon as possible. You can do this in person or by sending the stamped defence to the plaintiff at the contact details shown on the plaintiff's claim. If the plaintiff has solicitors, you should send the defence to the solicitors. If there are other parties to serve, make enough copies for them. Make sure you keep a copy of the defence for your own future reference.
For filing requirements, see UCPR rules 967-973.
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