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Defending a civil matter

If someone – called the plaintiff - has filed a complaint against you in the Magistrates’ Court, you may need to respond. If you respond, you will be known as the defendant.  

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If you accept the ’s claim, you can resolve the matter by paying the plaintiff the amount in their complaint including any costs. 

If you take no action within 21 days, the plaintiff may apply for a default judgment against you. See the default judgements page for more information.

If you do not accept the claim brought against you, a can be filed. You should do this within 21 days of being served with a complaint.

If you want to add a party - that is the not the plaintiff - by counterclaim, you should seek legal advice.

Court can be a complex and costly process. You should seek legal advice before defending a civil matter. You can also speak to the other party to try and resolve the dispute. The steps below provide general information about defending a civil matter. It does not cover all scenarios nor constitute legal advice.

STEP 1: Before you start

You should try to resolve your dispute before coming to court. The Dispute Settlement Centre of Victoria provides a dispute resolution service that may be able to help.

If you would like to defend a claim, you must agree to act honestly, cooperate and make a genuine attempt to resolve the dispute. To do this, you will need to fill in an overarching obligations certification - Form 4A.

You must also fill in a proper basis certification - Form 4B. This is a claim that your defence is not frivolous (not having a purpose or value), vexatious (causing or tending to cause annoyance, frustration or worry) or is an abuse of process.

STEP 2: Outline your defence

The notice of defence - Form 8A is where you outline the legal reasons why you do not accept the claim filed against you. This is called your defence.

Your defence must address each of the allegations numbered in the complaint - Form 5A. You should use the same numbers to indicate which allegations you are admitting or denying. If you are denying an allegation, you should provide reasons in the notice of defence.

After responding to the allegations, you can also include other details you believe were not raised by the plaintiff or are invalid. See the counterclaims page for more information.

STEP 3: File your defence

Make two copies of the completed notice of defence. One copy is for your records and the other copy is for service on the plaintiff.

File the original form with the Magistrates’ Court listed on the complaint. You must also file a completed:

  • overarching obligations certification
  • proper basis certification. 

If you do not file a defence within 21 days of being served, the plaintiff may apply for a default judgment against you. See the default judgements page for more information.

STEP 4: court documents

There are legal rules about the way in which you must give documents to the plaintiff. This is called service. Information about service can be found on the service of court documents page.

To complete service, a copy of the notice of defence must be served on the plaintiff or their lawyer within 21 days of being served with the complaint.

The person who served the documents must complete an affidavit of service - Form 6A. This provides information to the court about how and when the documents were served.

The must be witnessed and sworn or affirmed in the presence of an authorised person. You may also need to file the affidavit to prove service. See the witnessing  documents page for more information.

If documents are not served correctly, it may cause delays and the plaintiff can seek default judgment against you.

What happens next?

The Magistrates’ Court will send details about a hearing date, if a defence is filed, and the type of hearing you will be attending. For example, a pre-hearing conference, or . See the resolving a dispute page for more information.

Checklist

  1. Try and resolve your dispute with the plaintiff or seek legal advice.
  2. Complete a:
  3. File with the Magistrates’ Court, listed in the complaint – Form 5A, the original:
    • notice of defence
    • overarching obligations certification 
    • proper basis certification.

    The plaintiff may apply for a default judgment if no action is taken within 21 days.

  4. Serve on the plaintiff or their lawyer a copy of the notice of defence.
  5. Complete an affidavit of service, sign in the presence of an authorised person and file with the Magistrates’ Court.
Last updated on 13 Dec 2018
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