How to Draft a Statement of Defence
A statement of defence must disclose an arguable defence and apprise the plaintiff of the case it must meet at trial.
If it does not do so the plaintiff may apply to have part or all of the defence struck out, and seek to have judgment entered in its favour.
A statement of defence should respond to each allegation made in the statement of claim. You cannot generally deny the allegations in the statement of claim.
There are 3 main options when responding to a particular allegation made in a statement of claim:
- Admit the allegation.
- Deny the allegation.
- Do not admit the allegation.
Admissions should be made where there is no doubt about the truth or correctness of an allegation made in a statement of claim. For example, an allegation that the plaintiff was registered as a company on 13 May 2017 should be admitted if a company search shows that this is the case.
If you do not admit an allegation that is not controversial, and the plaintiff is required to prove it at trial, the court may order you to pay the plaintiff’s costs involved in proving the allegation.
Note, however, that you must be careful admitting an allegation, because it is difficult to withdraw an admission, once it is made. To withdraw an admission you must apply to the court, and you can expect the plaintiff to oppose your application.
If you simply deny an allegation made in the statement of claim you will not be allowed, at trial, to raise a positive defence based on an alternative view of the facts and law. For example, if you simply deny an allegation that a person acted negligently, you will not be able to put forward a positive case that the person acted without negligence.
For this reason it’s generally best to accompany denials with the factual and/or legal reasons for the denial, and any positive defence you wish to make. You will then have the flexibility at trial not only to deny the plaintiff’s case, but put forward your own case in defence.
‘Non-admissions’ should only be made where you genuinely cannot admit or deny a particular allegation. This may be, for example, because you do not have any (or insufficient) knowledge of the facts relating to a particular allegation. Later, when you obtain more information from the plaintiff about its case, you can if appropriate amend a non-admission into an admission or denial.
A statement of defence should transparently set out your case in opposition to the statement of claim. In particular a statement of defence should properly address each allegation in the statement of claim, and robustly assert any positive case in defence.
Please contact me if you would like assistance drafting a statement of defence.
Greg Carter is a freelance litigation lawyer based in Perth, specialising in fixed-fee commercial dispute resolution.
Greg offers a FREE consultation and a ‘no obligation’ quotation.
For more information please call Greg on 0422 406 929 or email email@example.com.
Or see his website www.gregcarter.com.au.