Defence (Form 33)

Where a Federal Court proceeding is run on pleadings (it started with a statement of claim, or the Court ordered it to continue on pleadings), a respondent must file a defence in accordance with Form 33 within 28 days after service of the statement of claim (rr 16.31, 16.32). The defence must deal with every allegation of fact: specifically admit or deny it, or say you do not know and so cannot admit it, which counts as a denial. Anything not specifically denied is taken to be admitted (r 16.07). Rules 16.01 to 16.10 govern the content, including who prepared the pleading and a lawyer's certificate that there is a proper basis for each allegation, denial and non-admission.

When you need it

• You are a respondent and have been served with an originating application and statement of claim in the Federal Court.
• The Court has ordered the proceeding to continue on pleadings.
• Not where the case is running on affidavits or a concise statement: the Court's directions for that case govern your response instead.

1. 1

   Copy the heading

   Use the file number, District Registry, Division and party names from the originating application.

2. 2

   Answer each paragraph of the statement of claim

   Use numbered paragraphs that follow the statement of claim. For each allegation, admit it, deny it, or say you do not know and therefore cannot admit it (r 16.07). A general denial is not enough.

3. 3

   Plead your own facts

   State the material facts you rely on, not the evidence (r 16.02(1)(d)), and the provisions of any statute relied on (r 16.02(1)(e)). Expressly plead any matter that raises a new issue or might take the applicant by surprise, such as a limitation defence or a set-off (rr 16.08, 16.10).

4. 4

   Keep it proper

   The defence must not be evasive, ambiguous, scandalous, frivolous or vexatious, or likely to cause prejudice or delay (r 16.02(2)). A defence of tender before the proceeding started needs an offer made under Part 25 (r 16.09).

5. 5

   Sign and state who prepared it

   Date and sign as the respondent or the respondent's lawyer, and state the name of the person who prepared the pleading (r 16.01(a), (b)).

6. 6

   Lawyer's certificate

   If a lawyer prepared the defence, the lawyer signs the certificate that the factual and legal material available provides a proper basis for each allegation, denial and non-admission (r 16.01(c)). A self-represented respondent deletes it.

• File within 28 days after the statement of claim was served (r 16.32), usually through eLodgment using the file number.
• Serve the defence on the applicant and other parties. Filing under the Rules includes service (Dictionary, "file").
• If the applicant wants to plead a new matter in response, it files a reply in Form 34 within 14 days after being served with the defence (r 16.33).
• A filing fee may apply - check the Court's current fee schedule.

• Missing the 28 days puts you in default (r 5.22). The applicant can then seek orders, including judgment for a debt or liquidated damages (r 5.23).
• Do not leave allegations unanswered. Rule 16.07(2) treats them as admitted.
• File a notice of address for service (Form 10) before or with your first document if you have not already (rr 5.02, 11.06).