Notice of counterclaim or cross-application (Rules 195(2)(c) and 196(2)(b)) (Form 17)

Under rule 195 of the Supreme Court Rules 2000 (Tas), a defendant may counterclaim against the plaintiff together with another person. The defendant adds a further title naming everyone who would be a defendant to the counterclaim, delivers the defence to existing parties, and serves the defence, endorsed with a notice in the prescribed form, on any defendant to the counterclaim who is not already a party, in the same manner as a writ (r 195(2)). Rule 196 does the same for a respondent's cross-application against a non-party (r 196(2)(b)). Form 17 is that notice. It tells the new party to file and serve a notice of appearance within the stated time, or risk judgment or orders in their absence.

When you need it

• You are a defendant counterclaiming against the plaintiff and someone who is not yet a party.
• You are a respondent making a cross-application against an applicant and a person not yet a party.
• For a claim against a non-party for contribution or indemnity, consider third party procedure (Form 18) under Part 7 Division 15 instead.

1. 1

   Add the further title

   Under the existing title, add a title naming all persons who would be defendants to the counterclaim (or respondents to the cross-application).

2. 2

   Address the new party

   Insert the name of the defendant to the counterclaim or respondent to the cross-application to whom the notice is directed.

3. 3

   Specify the time to appear

   Insert the number of days after service within which the person must lodge and serve a notice of appearance. It cannot be less than the period under rule 98 or 99 (7 days if served in Tasmania, 21 days elsewhere in Australia) (r 197(2)).

4. 4

   Sign, date and address

   The party or practitioner signs. The form provides for the sealing date and addressing it to the plaintiff or the plaintiff's practitioner.

• Endorse the notice on the defence and counterclaim (or cross-application) and serve it on the new party in the same manner as a writ or originating application (rr 195(2)(c), 196(2)(b)). Originating process is generally served personally (r 133).
• Deliver the defence to existing parties within the usual time (r 195(2)(b)), and file a copy as soon as practicable after delivery (r 264(2)).
• The new party must file a notice of appearance (r 197(1)) at any registry. The form notes the registries at Salamanca Place, Hobart; Cameron Street, Launceston; and Alexander Street, Burnie.

• A new party served with a counterclaim can be proceeded against as if served with a writ and must deliver a defence to the counterclaim (r 197(3)).
• If the counterclaim cannot conveniently be heard with the main action, any party can ask the Court to strike it out or order it to be dealt with separately (r 198).
• A counterclaim can continue even if the plaintiff's claim is stayed, discontinued or dismissed (r 199).