Defence and Counterclaim (Form 5)

A defendant who intends to defend an action must file a defence in an approved form within 21 days after service of the claim and serve it on all other parties (r 48 of the Magistrates Court (Civil Division) Rules 1998 (Tas)). A counterclaim or set-off must be in an approved form and filed at the same time as the defence, unless the Court grants leave to file it later (r 50). Form 5 combines both. The claimant then has 14 days after service to file a defence to the counterclaim (r 51(1)). Pleadings follow the practice, form and content of the Supreme Court Rules 2000 unless the Magistrates Court rules provide otherwise (r 44(1)).

When you need it

• You dispute all or part of the claim and say the claimant owes you money or damages arising from the same or related dealings.
• You want to set off an amount the claimant owes you against the claim.
• You are within 21 days after service of the claim, or default judgment has not yet been entered (r 48(2)). A counterclaim filed after the defence needs leave (r 50(2)).

1. 1

   Heading and parties

   Enter the court address and action number from the claim. List the claimants as on the claim form and any solicitor; give the full names and addresses of the defendants (registered office for a company) and the defendant's solicitor, if any.

2. 2

   Particulars of defence

   Say which parts of the claim you admit and which you deny, and briefly state your defence. If you admit the claim in full, say so.

3. 3

   Particulars of counterclaim

   Briefly state the date, place and circumstances the counterclaim arose from, the cause of action and the relief you seek. For damages, give the amount claimed for each head of damages.

4. 4

   Sign every page

   The defendant or their solicitor signs and dates each page.

5. 5

   Filed by

   Complete the address for service, phone, fax, DX and contact name.

• File the defence and counterclaim at the registry, quoting the action number, and serve it on all other parties (r 48(1)).
• A filing fee for a counterclaim applies; check the current amount on the fees page.
• The claimant must file a defence to the counterclaim within 14 days after service (r 51(1)). Default judgment cannot be entered on a counterclaim (r 116(3)).
• If the claim is defended, a minor civil claim ($15,000 or less) generally goes to a conciliation conference, and a civil claim to a directions hearing, according to the court's civil disputes page.

• The form warns that there are costs penalties for an unsuccessful counterclaim, so only counterclaim what you can support.
• If you say someone else, such as your company, incurred the liability, you must plead the facts showing when, where and how (r 44(3)). If you rely on a quotation, plead who made it, when, where and how (r 44(4)).
• A claim for indemnity or contribution against someone who is not yet a party is a third party claim, also filed with the defence unless leave is given (r 52).