Please note: Articles on this website were originally published by in 2015 and may now be out of date. Revised and updated content is included in Civil Litigation for Non-Lawyers [available here]Disclaimer

This article deals with the situation where the defendant does defend a claim and maybe even goes so far as to file a counterclaim.


The defendant might make a counterclaim at the time of filing and serving any defence. A counterclaim is a case against a plaintiff where the plaintiff is the defendant. So by counterclaiming the defendant ‘turns the tables’ on the plaintiff in a way. Any counterclaim is usually dealt with at the same time as the original claim, so you can end up appearing in Court as both plaintiff and defendant at the same time.

Even though it might be dealt with at the same time, it is important to treat any counterclaim as a separate case for procedural purposes. That means defending the counterclaim if the plaintiff is minded to do so because, just like with its own case, judgment by default becomes available if no defence is filed and served within 25 working days (or such other time as allowed). A initial disclosure is also required with any counterclaim defence. The documents for a defence to a counterclaim might be different to those for a claim because different documents might be relevant. That depends on the particulars facts of the cases. See the part of this website on initial disclosure for more.

Statement in reply and further list of documents

Rule 5.62 of the High Court Rules imposes a duty on plaintiff to reply to any positive allegation or ‘affirmative defence’ within a statement of defence within 10 working days after the day the statement of defence is served.

An ‘affirmative defence’ is something more than a mere denial of an allegation in a statement of claim. It involves some new ‘positive’ allegation. For example, where a plaintiff says a defendant damaged his car, the defendant might deny doing the damage and say further that she saw the plaintiff do the damage himself by driving into a lamp post. There, the new allegation involving the lamp post amounts to a ‘positive allegation’.

The plaintiff in the example might admit he did drive into a lamp post as the defendant has alleged. He might then go on to say he is not claiming for the lamp post damage but separate damage that the defendant caused as described in the statement of claim.

As to the content of a statement in reply, rule 5.63 of the High Court Rules provides:

(1) A reply must be limited to answering the affirmative defence or positive allegation and otherwise must comply with the rules governing statements of defence so far as they are applicable.

(2) An affirmative defence or positive allegation in a statement of defence that is not denied is treated as being admitted.

You can file and serve a statement in reply in the same way you file and serve a statement of claim. However, some alternatives to personal service may be available under rule 6.1 of the High Court Rules. See the part of this text dealing with service of statement in reply and other documents below for more about that.

Bundle of documents

A bundle of documents relied on for the reply is also required by rule 8.4 of the High Court Rules. Those documents might be different to the ones relied on for the statement of claim depending on the reply. See the part of this text on initial disclosure for more.

Service of statement in reply and other documents

Rule 6.1 of the High Court Rules provides:

(1) Any of the following methods may be used for serving a document that is required by these rules to be served:

(a) personal service:

(b) service at an address for service given in accordance with these rules:

(c) service at an address directed by the court as the address for service for the party or person:

(d) if the solicitor for the party or person, or the party or person, has, under rule 5.40(5)(a), 5.42(2)(b)(i), or 5.44(1)(e), specified a post office box address, document exchange box number, fax number, or email address, –

(i) by posting the document to that post office box address; or

(ii) by leaving the document at a document exchange for direction to that document exchange box number; or

(iii) by transmitting the document electronically to that fax number or email address:

(e) if a defendant has been served in Australia under section 13 of the Trans-Tasman Proceedings Act 2010 with an initiating document for the proceeding, by posting the document to an address for service of the party or person to be served.

(2) In any case not provided for by these rules, service must be effected by the method and at the place the court directs.

(3) This rule does not apply if an Act or a rule requires a special and exclusive method of service.

Rule 6.1(1)(d) could be useful because it seems to allow for almost instantaneous service by fax or email. However, note that rule 6.1 is extensively qualified by rule 6.6, particularly in relation to the times when service by a particular mode is deemed to have occurred.

Regarding rule 6.1(1)(b) quoted above, which provides for service at a given address for service, rule 6.5 provides:

A document may be served at an address for service by leaving the document at that address at any time between 9 am and 5 pm.

Proof of service of statement in reply and other documents

Service of a statement in reply and documents other than statements of claim and notices of proceeding might not be an issue in many cases and proof of service might not be called for. See the part of this text dealing with proof of service of statements of claim for information on how service may be proved and an affidavit of documents template.

Interlocutory applications

Interlocutory applications such as applications to strike out a defence and applications for summary judgment are beyond the scope of this text. You should consider taking legal advice if you are faced with any such application or considering making one.

Note: This content was originally published by in 2015. Disclaimer