Notice of defence (Form 8A)

Under rule 8.03(1) of the Magistrates' Court General Civil Procedure Rules 2020 (Vic), a defendant gives notice of defence by serving a notice of defence in Form 8A on the plaintiff at the address for service stated in the complaint and filing a copy with the registrar. The notice must say that the defendant intends to defend, contain a defence that complies with rule 13.02, and give the defendant's name and address, an address for service and an email address for service (r 8.03(2)). The same form, with any necessary changes, is served with a counterclaim (r 10.04(7)) and with a third party notice (r 11.07(5)(g)), so the person on the receiving end can defend it.

When you need it

• You have been served with a Complaint (Form 5A) in the Magistrates' Court of Victoria and you dispute all or part of the claim. Two blank copies of Form 8A should have been served with the complaint (r 6.02).
• A counterclaim has been made against you and you want to defend it (r 10.04(7)).
• You have been joined as a third party and want to defend the third party claim (r 11.07(5)(g)).
• You want to stop the plaintiff applying for an order in default: if no notice of defence is given within 21 days of service, the plaintiff may apply for an order (r 21.01(1)).

1. 1

   Copy the heading from the complaint

   Use the same court number, venue and party names as the complaint, then fill in the date of the document, who it is filed on behalf of and, if you have one, your lawyer's name, code, address and reference.

2. 2

   Address it to the plaintiff and the registrar

   Insert the venue of the Magistrates' Court named in the complaint. The form already states that the defendant intends to defend the complaint.

3. 3

   Answer each fact in the statement of claim

   In numbered paragraphs, say which facts are admitted, denied or not admitted (r 13.02(1)). Any fact you do not deal with is taken to be admitted (r 13.02(2)). The court's guide suggests using the same numbers as the complaint so it is clear which allegation you are answering.

4. 4

   Give reasons and particulars

   For each denial give your reason, and if you will prove a different fact, state it with particulars (r 13.02(3)). State specifically any fact that makes the claim not maintainable, could take the plaintiff by surprise or raises new issues (r 13.02(5)), and name the provision if your defence arises under an Act (r 13.02(6)). You may attach extra pages.

5. 5

   Sign it and complete the notes

   The defendant or the defendant's Australian lawyer signs. Then tick who signed (you in person, an authorised officer of a defendant company, or your lawyer), and give your address, your address for service and an email address for service. If you act for yourself and neither the Service and Execution of Process Act nor the Trans-Tasman Proceedings Act applies, the address for service must be in Victoria and not a post office box.

• Time limit: for a complaint served in Victoria or elsewhere in Australia, the complaint must give you at least 21 days after service to give notice of defence; longer periods apply for service in Papua New Guinea (28 days), New Zealand and other places (r 8.01).
• Serve a copy on the plaintiff at the address for service stated in the complaint and file a copy with the registrar (r 8.03(1)). The court's guide says to file the original with the court listed on the complaint and keep a copy for your records.
• The court's guide also says to file an overarching obligations certification (Form 4A) and a proper basis certification (Form 4B) with the defence, and for the person who served it to complete an affidavit of service (Form 6A).
• You can still give notice of defence after 21 days, but not without the court's leave once the plaintiff has obtained an order in default or your notice of defence has been struck out (r 8.02).
• A fee may apply to filing - check the court's current civil fees page.

• Think before writing "not admitted". Without leave, a defendant who does not admit a fact cannot lead evidence about it at the hearing except in cross-examination (r 13.02(4)).
• If your defence is that you already offered (tendered) the money, you cannot rely on it unless you pay the amount to the registrar within 7 days after giving notice of defence (r 13.02(8)).
• Keep paragraphs short, one fact or matter each, numbered consecutively (r 13.02(7)).