Drafting an effective Reply and Answer

When to use this factsheet?

You have served your Claim and Statement of Claim on the defendant. The defendant has now served you with their Defence. This factsheet is about what to do in response.

Under the Uniform Civil Procedure Rules 1999 (UCPR) you can file a reply to a Defence.

A reply is often much shorter than either the Statement of Claim or Defence which have preceded it. It is more of a ‘summing up’, tying up any loose ends from the previous pleadings, rather than putting forward any new basis for your claim.

When should you file a Reply?

A Reply is important if either:

1. the defendant has raised new allegations of fact; or
2. the defendant has filed a counterclaim against you (the response to a counterclaim is called an answer).

1. Adopt any admissions & deemed admissions

Sometimes in the Defence the defendant will expressly admit some of your allegations. (The Defence will say – The Defendant admits the allegations in paragraph 1, 3, and 7(a) of the Statement of Claim).

Under the UCPR a defendant may be deemed to have admitted parts of your Statement of Claim if the defendant either:

1. does not properly deny an allegation (for example the defendant just denies the allegation, or says that the allegation is untrue without saying why they deny the allegation), or
2. does not actually address or respond to an allegation (for example the Defence does not refer to, or simply refers to other facts without denying your allegation).

If the defendant admits an allegation, this has two consequences for your case:

1. you do not need to introduce evidence to the court proving an allegation that the defendant has already admitted; and
2. the defendant needs the leave of the court to withdraw an admission made by the defendant. This even applies to deemed admissions.

If the Defence contains either express or deemed admissions you should adopt these admissions:

1. The Plaintiff adopts the admissions (including deemed admissions) in the Defence.

2. You don’t need to respond to every paragraph (except for the counterclaim)

Some self-represented plaintiffs want to respond to every single paragraph of a Defence. This is not always necessary. You have already put your case in your Statement of Claim. You should only respond to any new allegations of fact that the Defence makes.

Unlike a failure to respond to a Statement of Claim, if you do not respond to a Defence, you are deemed to “not admit” the Defence. However, if you have not admitted an allegation you can only respond to the other party’s evidence about that allegation. You can only call evidence of your own about that issue if it is relates to another issue that you have raised in your pleadings.

3. Respond to any new facts alleged in Defence

Carefully read each paragraph of the Defence for new facts that the defendant might have raised in responding to your Statement of Claim. If you find that they have raised a new fact in a paragraph of their Defence, respond to it by either admitting it, or by not admitting or denying the allegation. See our factsheet Drafting a Defence – tips and examples for information on how to respond to allegations in pleadings.

4. Respond to any ground of defence

The defendant can respond to your claim in a number of ways. They might raise a defence based in law (for example your claim is barred as it is outside the limitation period), based in fact or a combination of the two. If you find that they have raised a defence in law, respond to it in the same way they have responded to your statement of claim.

Eg. “As to paragraph 21 of the Defence, the plaintiffs deny that the claim has been brought outside the time limit prescribed by the Limitations of Actions Act because…”.

5. Respond to their counterclaim – the answer

You should respond to the counterclaim as though it were a Statement of Claim and you were drafting a Defence:

• respond to every paragraph – you can do this paragraph by paragraph if necessary;
• deny any allegations of fact that you do not admit – you will be deemed to admit facts that you forget to plead to; and
• make sure that you have provided an adequate Defence to their claim (either based on the facts, based in law, or a combination of both).

You should read our factsheet Drafting a Defence – tips and examples for further information.

What happens next?

In most cases, a Reply is the last “pleading” that is filed. After the pleadings stage, the parties complete disclosure.

Drafting an Affidavit

An affidavit is the written statement of a person which sets out facts that are within that person’s own knowledge. Affidavits are often required in court proceedings as the evidence of the person giving the affidavit (sometimes called the “depondent”). An affidavit must be signed by the person giving the affidavit and their signature must be witnessed by a lawyer (barrister or solicitor) or another properly qualified person (e.g. Justice of the Peace).

Courts will usually only accept affidavits that are written and witnessed in compliance with that particular court’s rules. This factsheet sets out some general guidance that will be applicable in most cases, but you should always check the rules of the court you are appearing in before filing (lodging) your affidavit with that court.

1. Appearances are important

• An affidavit should contain a series of short, numbered statements (paragraphs). Each of those statements should set out a fact relevant to the case.
• Your affidavit tells your story and the way it looks can change the impression the person reading it forms of you. It can make a big difference if you take the time to make sure that your affidavit is on the correct court form and looks neat and tidy. Make sure your margins are wide enough and don’t use bold or underlining to try and emphasise your points.
• Consider the use of headings to assist the reader to follow your story.

2. Introduce yourself

• Most template affidavit forms start with you setting out your full name, address and occupation.
• It can be a good idea to use the next paragraph to explain why you are making the affidavit – is it to respond to something the other party has filed or to support an application you have made?
• It is also okay to provide some small details about yourself at the beginning of your affidavit, like your family situation, qualifications or work history. This helps the court begin to form an impression of you and understand why you should be considered a trustworthy person.

3. Write in the first person about facts you know

• If you are using an affidavit in court proceedings it will be the basis of your case and the other party will be allowed to ask questions about its contents (known as cross-examination). Therefore, you need to be sure that the things you put in your affidavit are true and accurate.
• You need to tell the court what you did, saw, said or heard.
• You should write your affidavit in first person (“I went”, “I said” etc).
• You cannot include your opinion or what you think has happened – just what you know. If you find yourself writing “I think”, “I believe”, “I suggest”, “I assume” etc., then you should stop and think about whether you are trying to tell the court your opinion rather than a fact.
• You should not include your submissions (argument) about what the outcome of the case should be.
• Except in certain circumstances, you are not usually allowed to include facts about what someone else told you (this is called hearsay).

4. Keep it as simple as possible

• When you have been involved in a dispute for a long time it can be difficult to separate all the things that have frustrated you in the past from the things the court needs to know to decide the current legal dispute. When you are preparing an affidavit you need to think about how your story will appear to someone who has had no previous involvement in your case. You should also be selective about what you include (see our further tips on this below).
• The statements in each numbered paragraph in an affidavit should follow logically from the statement before. Sometimes this means facts need to be set out in chronological order.
• You should avoid including information that has previously been given to the court by you or the other party and information that is obvious or not in dispute.
• Write your affidavit using the language you use in every day speech because this is the way you will talk when you are cross-examined about your affidavit. If you try to use different language or legalese you may lose the meaning of what you are trying to say or contradict yourself during cross-examination.

5. Stick to what is relevant

• The laws of evidence apply to any affidavit filed in a court proceeding so you need to make sure that the information you provide is relevant and otherwise admissible (see factsheet Evidence and proof in civil proceedings).
• If you include irrelevant material you risk annoying the judge or affecting your credibility. Your credibility is your reputation for telling the truth and being trustworthy.

6. Don’t guess

• Your affidavit needs to be accurate. If you are not sure about something or can’t really remember, be honest about this.

7. Be specific about conversations

• Special care should be taken when describing conversations you have had.
• Set out the substance of the conversation (what exactly was said, by who, where), not your impression or opinion about what the conversation meant.

8. Be specific about timing and frequency, to the extent this is relevant

• It will help the judge follow your story if you specify the dates on which things happened, where it happened and who was present rather then saying things like “a few weeks later”.
• The same applies when you are making statements about how frequently a specific thing occurred. For example, saying something happened “at least three times a week” is better than saying something happened “often”.
• This rule needs to be balanced with point 5 (stick to what is relevant) above. Detail that does not add anything to the substance of your story should not be included.

9. Try to be factual, not emotional

• You will make a much better impression on the judge and be more persuasive if you put your emotions about your dispute to one side while you prepare your affidavit.
• Exaggeration, statements designed to embarrass the other side or your personal opinion about the other side’s character will only harm your credibility.
• You also need to pick your battles. Don’t niggle over small points, deny things just for the sake of it or bring up irrelevant events from a long time ago.
• If you include inappropriate or irrelevant material in an affidavit the other side may make an application for that material to be struck out (removed). If the court agrees, it might order you to pay the other party’s legal costs for bringing that application.

10. Give copies of all relevant documents and explain where you got them

• If you have any documents that relate to a statement (paragraph) in your affidavit you should attach them to your affidavit to support what you are saying.
• You should include an explanation of when and how the document came into your possession.
• Different courts have different rules about how to do this, for example, you may need to prepare certificates of exhibits, so be sure to check the correct procedure.

Drafting a Defence – tips and examples

This factsheet should be used when you have been served with a Claim and Statement of Claim. If you want to defend the claim, you need to file a Defence.

You have 28 days from the date you were served with the claim to file your Defence. This may seem like plenty of time. However, your Defence may be the single most important court document that you draft in the proceedings, so you should start preparing as soon as possible to ensure there is enough time to obtain any advice or assistance you might require.

It is up to you to make sure that your Defence is filed in the registry by the due date. If you do not file a Defence by the due date, the plaintiff may be entitled to act as though you have decided not to defend the claim, and obtain default judgment in their favour without any further notice to you.

If you have been served with court documents that seem similar to a claim and Statement of Claim, but are titled “originating application” and “affidavit”, you only need to file a notice of address for service. You are not required to file a Defence at this stage.

Before we get started

In this factsheet, “UCPR” means Uniform Civil Procedure Rules 1999. 

The UCPR is the formal rules that set out how civil court claims must be conducted, from the start of the proceedings in court right through to what to do when the court has made final orders after the trial. If you ever need to know what the next step is in your court proceedings, or how to complete a particular step, you can look it up in the UCPR.

The UCPR is kept updated online under the Supreme Court Act.

The format of the Defence must also comply with the UCPR. You can access a Defence form from the Queensland Courts Website.

Drafting a Defence

The first thing to consider is whether you want to defend the claim. There are some circumstances where you may agree that you owe the plaintiff the whole of the amount being claimed. If so, it may be cheaper to negotiate payment of the debt, rather than defending the claim.

If you do want to defend the claim, you need to complete two court forms:

1. UCPR Form 6 A Notice of Intention to Defend: This form lets the plaintiff know that you intend to resist their claim. It also provides your contact details for future communication.
2. UCPR Form 17 The Defence: This is where you set out the reasons why you are defending the claim – why the plaintiff should not be awarded the damages they are after.

Both of these forms are available from the Queensland Courts Website.

More information about the notice of intention to defend is set out in Chapter 5 of the UCPR.

This factsheet will help you complete the Defence.

Step 1: Respond to the allegations

The most important task of your Defence is to respond to the allegations made by the plaintiff in the Statement of Claim.

To commence proceedings, the plaintiff has filed two court documents – a Claim (Form 2), and a Statement of Claim (Form 16). When drafting your Defence, you need to respond to the Statement of Claim, which will be the longer of the two documents.

The Statement of Claim should be drafted as a series of numbered paragraphs, sometimes with sub-paragraphs. View each of those numbered paragraphs as a separate allegation that you must respond to. To make your Defence easy to read, and to help ensure you respond to all of the paragraphs, you can respond to each paragraph in turn using the same numbering as in the Statement of Claim.

For each of the allegations in the Statement of Claim, you must say whether the allegation is:

True (or admitted), for example:

    "In respect to paragraph 1, the defendant admits the allegations."

False (or denied), for example:

    "In respect to paragraph 6, the defendant denies the allegations because…"

Not admitted, for example:

    "In respect to paragraph 8, the defendant does not admit the allegations because…"

If you do not respond to an allegation, the court can assume that you have admitted the allegation, so it is important to make sure you have addressed all of the allegations (rule 166 UCPR).

Admissions

If you are satisfied that an allegation is true, you should admit the allegation.

You can often admit a lot of the allegations in a Statement of Claim and still draft a successful Defence.

If you do not admit the allegation, the plaintiff can assume that it is contested and will set about gathering evidence to prove the allegation. This may have adverse consequences for you, and could make the proceedings unnecessarily lengthy.

Denials

If you believe an allegation is untrue, you should deny the allegation.

For example:

A Statement of Claim might read like this:

5. On 1 May 2006, the plaintiff and the defendant entered into a written contract for the sale of the property.

A non-complying Defence would read as follows:

5. The defendant denies the allegations contained in paragraph 5 of the statement of claim because it is not true.

If you deny an allegation, you must include reasons why – that is, your alternative version of the key facts. A better defence would be:

5.  In respect to paragraph 5, the defendant denies the allegations because:
  a. The allegations are, as a matter of fact untrue;
  b. On 1 May 2006, the plaintiff gave the defendant a written contract for the sale of the property which the plaintiff had signed; 
  c. The defendant did not ever sign the contract; 
  d. The defendant never agreed to purchase the property from the plaintiff.

See rule 166 of the UCPR for more information about how to deny an allegation and the effect that a denial will have on the future of the proceedings.

Non admissions

You only have a short amount of time to prepare your Defence and many of the allegations in the Statement of Claim may be outside your knowledge at this point. You can take the third option for those allegations – a non admission. For example:

12. In respect to paragraph 12 of the statement of claim, the defendant does not admit the allegations because it has not completed its investigations and does not know whether the allegations are true or false.  The defendant will plead further once its investigations are complete.

Once again, you need to provide a reason why the allegation is not being admitted. If it is because you have not completed your investigations, you have an obligation to set about investigating the allegation and you should amend your Defence in due course to clarify your position.

Rule 166 of the UCPR sets out the obligations that you will have if you plead a non admission in your Defence.

Step 2: Make sure you have argued a Defence

If you have responded to all of the allegations, you are most of the way there. However, it is also important to make sure that you have put forward your reason as to why the plaintiff should not be entitled to the damages claimed.

If you think that you need to include more key facts in order to properly set out your Defence, simply add additional, numbered paragraphs to the end of your Defence. This must include any material facts you will rely on to defend the claim at trial that you have not already included. You must not take the other party by surprise at trial – all of the key facts you want to rely on must be included in your Defence (UCPR rule 149). For example:

15. When the plaintiff gave the defendant the written contract signed by the plaintiff, the defendant told the plaintiff that the property was too expensive and she would not sign the contract.

16. From that time, the defendant did not see or communicate with the plaintiff.

There may also be particular types of defences that you could be required to particularise, such as the defences of performance of a contract, contributory negligence or waiver (to name just a few). Check rule 150 of the UCPR to ensure that there are no additional matters that you need to specifically plead in your Defence.

At the same time, you must also be succinct – your Defence must be as brief as the key facts allow. If your Defence is unreasonably long, it could make the proceedings lengthy and difficult to defend, or you may find that parts of your Defence are “struck out”. Rule 149 of the UCPR provides more information about this.

More detailed information about how to draft a Defence is set out at Chapter 6 of the UCPR.

Step 3: Filing and service

“Filing” a document means placing a copy of the document on the court’s file, which is held at the court’s registry. The contact details of each court registry are available on the Queensland Courts Website.

Keep both your notice of intention to defend and your Defence together – those 2 documents combined make up your Defence.

You are required to file your Defence (along with your notice of intention to defend) in the same court registry where the plaintiff’s claim has been filed. And remember, you must do this within 28 days of the date that you were served with the plaintiff’s claim.

You can file your Defence:

• In person: by taking two copies of your Defence to the registry in person; or
• By post: by sending two copies of your Defence, with a reply-paid self-addressed envelope, to the registry to be filed (it is up to you to ensure the documents are received by the court registry on time).

You do not need to pay any fees when filing your Defence.

The registry will stamp and retain one of the copies of your Defence. This will be kept on the court’s file. The registry will also stamp the second copy and return that to you.

You must then serve a copy of the Defence on the plaintiff (and on any other parties, such as other defendants). You must serve the Defence as soon as possible. You can do this in person or by sending the stamped Defence to the plaintiff at the contact details shown on the plaintiff’s claim. If the plaintiff has solicitors, you should send the Defence to the solicitors. If there are other parties to serve, make enough copies for them. Make sure you keep a copy of the Defence for your own future reference.

For filing requirements, see UCPR rules 967-973.

Drafting a Statement of Claim – tips and examples

This factsheet should be used when you want to bring a claim for damages in the Queensland Magistrates, District or Supreme Court.

This factsheet is designed to help you draft a statement of claim once you have decided to bring a claim in a court and confirmed that you have a valid cause of action. Before you start drafting your statement of claim, see LawRight’s factsheet Commencing court proceedings.

Before we get started

In this factsheet, “UCPR” means Uniform Civil Procedure Rules 1999.

The UCPR is the formal rules that set out how civil court claims in Queensland must be conducted, from the first step to initiate proceedings right through to what to do after the court has made final orders after the trial. If you ever need to know what the next step is in your court proceedings, or how to complete a particular step, you can look it up in the UCPR.

The UCPR is kept updated online under the Supreme Court Act.

Drafting a Statement of Claim

If you do want to bring a claim for damages, you need to complete 2 separate court forms:

1. UCPR Form 2: Claim

   This form sets out the specific orders and amount of damages you want, the type of claim (for example, distinguishing negligence claims from breach of contract claims) and your contact details.

2. UCPR Form 16: Statement of Claim

   This form sets out the basis of your claim, including your cause of action and all of the relevant facts.

Both of these forms are available from the Queensland Courts Website.

This fact sheet will help you complete the statement of claim.

Step 1: Select the court (and registry)

See LawRight’s factsheet Commencing court proceedings

Step 2: Set out your ‘pleadings’

Your Statement of Claim contains your “pleadings”, i.e. your written statement about what your claim is about and why you are entitled to damages. It is the first document that the trial judge will read and the single most important document that you will have to draft throughout the court process.

If your Statement of Claim does not adequately set out a proper claim, or if parts are inadequate or do not comply with the rules, you might find that the Statement of Claim or parts of it are “struck out.” So spend some time on getting it right – research your cause of action and work out what facts you need to prove to the court. You should also consider how you will go about proving your case. You should read LawRight’s factsheet on Evidence and proof in civil proceedings.

The formal rules about how to draft a Statement of Claim are set out at Chapter 6 of the UCPR. The most important part of these rules is rule 149(1).

In advance, you need to know:

(a) what cause of action are you relying on?

(b) what are the elements of that cause of action?

(c) what facts and circumstances in your case prove the elements of your matter?

(d) what remedy are you seeking from the defendant?

For example, if you are suing for breach of a contract to purchase land you need to:

(a) state that you are alleging that the contract was breached (rule 150 contains an extensive list of matters that must be “specifically pleaded” for example breach of contract, negligence, misrepresentation);

(b) show how the defendant breached the contract, and how that breach led to the damages that you are asking the court to award you;

(c) set out the facts of the incident in a logical order (see below);

(d) state that the claim is for damages for breach of contract; and

(e) outline what type of damages you are claiming and break down the amounts you are claiming (for example, lost rental income, increased transfer duty, legal costs incurred, storage costs).

If your claim is for liquidated damages, you should include the notice required under rule 150(3), setting out the total amount of the claim including any interest, as well as the court filing fees incurred by you. Liquidated damages are for a certain and known amount such as moneys owing under a debt. Unliquidated damages are damages requiring an assessment by the court such as in the example above where the court has to assess how much you should be compensated for your loss (or injury).

Putting it all together

Your Statement of Claim should first describe the parties to the action, e.g. “the plaintiff is a woman born on ….”. If any party is a company or a body corporate it is important to plead that the company is incorporated.

You then need to draft the facts of your case. You should remember that the goal of your pleading is to tell the court and the defendant what you are alleging the defendant did (or failed to do). Tell the story as it actually happened in the order it happened. The best way to do this is to draft the statement of claim as a series of numbered short paragraphs, sometimes with sub-paragraphs, each containing a separate fact.

For example:

Paul’s small family company entered into a contract to buy a small house from Deena. For some reason, the settlement didn’t take place and Paul had to buy a more expensive property. Paul now wants to sue Deena to recover the money he lost because the purchase did not finalise.

Firstly, you need to describe the parties to the case and to establish that the court has jurisdiction.

1. At all material times the plaintiff was a company duly incorporated according to law and capable of being sued in its own name.

Note that a clause of this type is crucial if your case involves a company.

2. At all material times the defendant was a 34 year old women living at 100 Green Street, Brisbane in the State of Queensland.

3. At all material times the defendant was the registered owner of the property at 100 Green Street, Brisbane in the State of Queensland, being described as Lot 1 on Survey Plan 12 345 Parish of Brisbane County of Stanley in the State of Queensland.

This establishes that the Brisbane courts can hear the matter.

Next, you should go through the relevant facts. Avoid the following:

• Lengthy background material;
• Attacks on the defendant or other persons; and
• Repetition.

4. By contract of sale dated 27 February 2009, the defendant agreed to sell the property to the plaintiff (“the purchase contract”).

Note that in paragraph 4, by defining “the purchase contract”, you create a short hand term to refer to this key document.

You must give sufficient “particulars” about your case. Because you are relying on a contract, you need to “specifically plead the material terms of the contract.” You need to set out the terms of the contract on which you rely.

5. The material terms of the purchase contract were:
(a) The plaintiff was the Purchaser
(b) The defendant was the Vendor
(c) The purchase price was $395,000.00
(d) The plaintiff had paid a deposit of $39,500.00
(e) Settlement was to take place on 30 March 2009.
(f) At settlement, in consideration of receipt of the balance purchase price the Vendor would give to the plaintiff a signed Transfer form.
(g) Time was of the essence of the contract.
(h) That in the event that the Purchaser breached the contract, the Vendor could either affirm or terminate the contract.

6. On 16 March 2009, the plaintiff, by its solicitor Joseph Bloggs, wrote to the defendant and:
(a) Proposed that completion of the sale take place at the Land Titles Office in Brisbane on 30 March 2009 at 3:30 pm.
(b) Notified the defendant that the plaintiff proposed to tender at settlement a bank cheque in the sum of $355,500.00 payable to the defendant.
(c) Requested that the defendant confirm the details of the bank cheques that the defendant required at settlement.

7. The defendant failed to respond to the plaintiff’s letter of 16 March 2009.

8. On 26 March 2009 the plaintiffs solicitor wrote to the defendant and advised that in light of the defendant’s refusal to confirm arrangements for settlement the defendant would tender for settlement in accordance with the letter of Joseph Bloggs dated 16 March 2009.

9. On 30 March 2009:
(a) Joseph Bloggs, solicitor, attended at the Titles Office with a Bank Cheque to the defendant in the sum of $ 355,500.00 payable to the defendant.
(b) The plaintiff was ready willing and able to complete the sale contract and has performed the sale contract except so far as the plaintiff was prevented by the default of the defendant.
(c) The defendant neglected, failed or refused to complete the purchase contract.

10. By facsimile letter sent at 5:05 pm on 30 March 2009, Joseph Bloggs, solicitor, gave notice to the defendant that:
(a) the defendant had failed to complete the purchase contract
(b) the plaintiff elected to terminate the contract
(c) the plaintiff intended to institute proceedings seeking damages against the defendant.

Having gone through the facts, the next step is to set out the legal consequences of those facts.

11. As a result of the matters pleaded in paragraph 9, the defendant was in breach of the purchase contract.

12. On 5 May 2009 the plaintiff completed the purchase of a property at 100 Red Street, Brisbane for the sum of $500,000.00.

Next – set out the losses or damages that you wish to claim

13. As a result of the defendant’s breach of contract, the plaintiff suffered losses namely:
(a) Legal fees and expenses of the sale contract $2,799.34 thrown away
(b) Storage costs of the plaintiff’s furniture for the property $5,250.00
(c) Lost rental income from the property $2,500.00
(d) Additional stamp duty paid on the alternative investment property $ 5,000.00
(e) Additional monies expended to purchase an investment property $105,000.00.

14. The plaintiff claims damages for breach of contract in the sum of $120,549.34.

Pitfalls

• Be as brief as the nature of the case permits and avoid repetition

This is very important. Sometimes, self represented litigants think that they have to include every little detail about what happened and will often repeat the same allegations to feel sure that the court understands their problem. This is not necessary and can be counter-productive. If you make your point clearly and simply, it puts the point in issue. A short, “one off” concise statement of your case makes your statement of claim more persuasive than repeating the same points a number of times. You will be able to go into more detail at the trial. You want the judge to quickly get the overall picture at this stage to see the merit of your claim.

• Avoid lengthy passages

This will make it easier for the court to understand the issues in your case, and allow you and the defendant to focus on the most important issues in your case.

• Do not anticipate the Defence – just include the facts you need to establish your case

It is often tempting to arrange a Statement of Claim so that it not only sets out your case, but also deals with the matters that you think the defendant will raise. Avoid doing this. Your Statement of Claim should deal only with the facts that show your case. You will have an opportunity to respond to the defendant’s version of the facts in your reply.

• Do not include the evidence by which the facts are to be proved

The discovery and trial stages are when you produce and test the evidence. The pleading stage (Statement of Claim, Defence and Reply) is just to tell the story of what happened from the perspectives of the parties involved in the dispute.

• State specifically any matter that if not stated specifically may take another party by surprise

Don’t hold back any issue to keep it up your sleeve for the trial. If you do, you may not be permitted to raise it or you may be required to pay the other party’s costs of responding to the new point at the late stage of the proceedings.

Examples of what not to do

In the above example:

• Paul drafts a 50 page Statement of Claim, which outlines the entire history of his dealings with Deena.
• Paul outlines at some length his suspicions that Deena had needed the sale proceeds to pay for her mother-in-law to enter a nursing home, but that with her mother-in-law’s death a week after the contract was signed, this was no longer needed.
• Paul believes that Deena intends to raise a Defence that Paul had improperly pressured Deena into signing the contract. Paul includes a lengthy series of paragraphs that attempt to refute this Defence.
• In his Statement of Claim Paul accuses Deena of dishonesty and fraud and says that she is a liar.

Checklist

• Have I completed court Forms 2 and 16?
• Are my pleadings as brief as the nature of the case permits?
• Have I included all the material facts I am relying on?
• Have I specifically pleaded any matter I am required to under rule 150?
• Have I stated what relief I am seeking?
• Have I stated what section of any Act that I am relying on?
• Have I given enough information to define the issues at trial?
• Will the defendant be able to understand and respond to my claim?
• If my clam is for liquidated damages, have I included the notice under rule 150(3)?
• Does my claim inform the defendant of the date before which they must file a notice of intention to defend and the consequences of them failing to a file a notice within the time limit?

Applications in the Queensland Courts – a short guide

There are two types of applications:

• An Originating Application (Form 5) is a document that commences certain types of court proceedings;
• An Application in a proceeding (Form 9) is a document that is used for an application that is brought in court proceedings that have already commenced.

Originating Application versus Claim

The main difference between court proceedings commenced by claim and those commenced by originating application are that proceedings commenced by claim require pleadings. Pleadings are of use to the court when there are serious disputes of fact between the parties (pleadings narrow the issues of fact to be decided).

Originating Applications are rarer. Most commonly, Originating Applications are used for cases such as:

• Applying for further provision from the estate of a deceased person under section 41(1) of the Succession Act 1981 (family provision)
• Applications under the Corporations Act 2001 to wind up a company based on a failure to comply with a statutory demand, or to have a statutory demand set aside
• Certain applications under the Property Law Act 2023 (e.g. for the possession of a property, for the appointment of trustees for the partition and sale of a property) and the Status of Children Act 1973.

You should use an Originating Application when the Uniform Civil Procedure Rules 1999 (UCPR) or another Act require or allow a person to apply to the court for relief: (rules 10 and 11 UCPR).

You can (but don’t have to) use an Originating Application in cases where:

• there are not going to be substantial disputes of fact; or
• urgent relief is sought; or
• there is not a respondent (rule 11), although this is very rare.

If you complete an Originating Application:

• you will have to pay a court filing fee;
• the court will set a hearing date;
• in most cases you will need to serve the Respondent; and
• the court can make an order requiring the parties to exchange pleadings, if it considers that these are required (rule 14).

Completing an application form

You can find the court forms are on the court’s website.

For an Originating Application use a Form 5, for an Interlocutory Application use a Form 9. The application forms ask you to give an estimate of the time it will take the Court to consider the event. For a contested application, with affidavit material and written submissions to read, as well as oral argument to hear, at least 45 minutes will usually be required.

Originating Application

For an Originating Application, the Applicant is the person seeking relief, the Respondent is the person you are seeking relief from. Note that for some rare Originating Applications, there will not be a Respondent because the order that you are asking the court to make is not against any other person.

• For example:

John is seeking a declaration of paternity under section 10 of the Status of Children Act 1978 that Joseph Grande was the father of John’s deceased mother Mary. Joseph passed away in 1960. There is no Respondent to this Application.

When you write the orders that you are applying for always write the section of the Act or the rule that gives the court the power to make the orders that you are asking for. This is the section or rule that you are “relying on.”

• For example:

That pursuant to section 38 of the Property Law Act 1974 John Smith Solicitor be appointed as trustee for the sale of the property at 100 John Road, East Brisbane, described as Lot 1 on RP 765 432 County of Stanley, Parish of Bulimba, Title Reference 1098 7654.

Interlocutory Application

For an Interlocutory Application in an existing proceeding, just use the parties’ descriptions in the existing proceedings (e.g. Plaintiff, Defendant, Third Defendant added by Counterclaim, etc).

When you write the orders that you are applying for always write the rule or the section of the Act that gives the court the power to make the orders that you are asking for. This is the rule or section that you are “relying on.”

• For example:

That pursuant to rule 377(1)(a) of the Uniform Civil Procedure Rules 1999 the Plaintiff have leave to amend the Statement of Claim in accordance with exhibit A to the affidavit of Joe Bloggs filed 21 June 2013.

For an Interlocutory Application it is also worth considering:

• Should the court set a time limit on when the Respondent must comply with the order?
• What will happen in the event that the Respondent does not comply with the order?
  • If the order does not say what happens if it is not complied with, then you may need to make a further application to enforce the order or respond to the breach. Sometimes an order will say that if the Respondent does not comply then the Respondent’s case can come to an end; this will usually happen when the Respondent has previously been in breach of the rules.
• If you have previously sent a Rule 444 letter and are bringing an application to progress your matter, do the orders that you are seeking match the relief you mention in your Rule 444 letter?

Costs

The general provision is that “costs follow the event.” This means that the successful party’s costs are paid by the unsuccessful party. A self represented party is generally entitled only to their disbursements (filing fees etc.)

Other orders

You can also ask the court to make “such further orders as the Court considers appropriate.”

Affidavits

• Your Application should list the Affidavits you will rely on to support your application. You should list these by the name of the person giving the affidavit (deponent) and the date the affidavit is sworn.
• You do not have to file all of your affidavits at the time that you file your Application, although you should list that you expect to file an affidavit from that other person.
• For example:

Affidavit of Derek Dawson to be filed.

• If you are filing any affidavits after you have filed your application, you should file and serve these as soon as possible. You can ask for the leave of the court to file these on the day of your hearing if necessary.

Preparing an Affidavit

Chapter 11, Part 7 of the UCPR contains the formal rules for preparing an affidavit.

Serving the application documents

Once your Application is filed, you should serve it on the other party as soon as possible. Under the UCPR, material for an application needs to be served at least three business days before a hearing (Rule 28 UCPR).

For example, if a hearing is to be heard on a Friday, the material should be served by Monday.

The Court can give leave to rely on material that is provided less than three business days before the hearing (Rule 28(2)).

Ex parte applications

In some circumstances an application can be made ex-parte, which means that only the Applicant appears at hearing, and that the Respondent is not served with the application and does not appear at the hearing.

Ex Parte Applications are rare, they are usually brought in urgent situations. For example, when you are seeking a freezing or preservation order about property that is at serious risk of being destroyed or removed from Queensland before the court has a chance to make a final decision in the matter (Chapter 8 Part 2 of the UCPR).

Commencing court proceedings

This fact sheet should be used when you want to bring a claim for damages in the Magistrates, District or Supreme Courts.

There are a number of issues which you should consider before bringing a claim such as:

• Has the relevant time limit or “limitation period” expired?
• Are there alternative avenues for recovering damages, such as a letter of demand or mediation?
• Do I have a legal “cause of action” that might entitle me to damages (just because you have a grievance, does not mean you will necessarily be entitled to damages)?

Starting proceedings in court claiming damages is a serious step. There may be serious cost consequences for you if your claim is not successful. There are a number of different sources of free legal advice (such as Legal Aid and community legal centres) that you should consult before you start a claim.

This fact sheet is designed to help you get started.

Before we get started

In this factsheet, “UCPR” means Uniform Civil Procedure Rules 1999.

The UCPR are the formal rules that set out how civil court claims must be conducted, from the first step to initiate proceedings right through to what to do after the court has made final orders after a trial. If you ever need to know what the next step is in your court proceedings, or how to complete a particular step, you can look it up in the UCPR.

Step 1: Select the court (and registry)

Once you have decided to bring a claim and confirmed that you have a valid cause of action, the first step is to decide in which court and in which registry to bring your claim.

You firstly need to ask – what result do I want?

The table below shows in which court you should bring a claim, based upon the amount of damages that you are claiming.

In some cases, you will want the court to do something other than award compensation. You might want the court to make a declaration, to order specific performance of an agreement or to grant an injunction preventing a defendant from doing something. In such a case you must bring your claim in either the District or Supreme Courts.

Once you have decided which court you need to use, you will need to select the correct registry. Unfortunately, you cannot necessarily bring your claim in the registry that is most convenient to you. You must bring your claim in the registry where:

• The defendant is located; or
• Where the incident or contract giving rise to the claim occurred.

If your claim needs to be started in a registry that is outside Queensland, stop now! This factsheet is only relevant for claims commenced in Queensland.

It is important to be clear about in which court and which registry to start your claim. If you select the wrong court or the wrong registry, your claim may need to be transferred, which could be expensive for you.

Chapter 2, Part 6 of the UCPR has more information about selecting the correct court and registry.

Step 2: Drafting a Statement of Claim

For information on drafting a Form 16 statement of claim, see our Drafting a Statement of Claim – tips and examples factsheet.

Step 3: Filing and service

“Filing” a document means placing a copy of the document on the court file, which is held at the court registry. The contact details of each court registry are available on the Queensland Courts website.

Keep both your claim and your statement of claim together.

You will be required to pay a filing fee at the time of filing your claim, unless you apply for a fee waiver. Current filing fees are contained in the Uniform Civil Procedure Rules (Fees) Regulation 2009, available on the Queensland legislation website.

You can file your claim:

• In person: by taking 1 copy plus an additional copy for each defendant and one copy for you to the registry in person; or
• By post: by sending the required number of copies of your claim, with the filing fee and a reply-paid self-addressed envelope, to the registry to be filed. If you are filing by post, the Court Registry accepts no responsibility for any documents being delayed or lost in the post. We recommend that you file your Claim and Statement of Claim in person.

The registry will stamp and retain one of the copies of your claim. This will be kept on the court file. The registry will also stamp the other copies and return them to you.

You must then serve a copy of the claim on each of the defendants personally – ordinary post is usually insufficient. If your claim is not served properly, you may not be entitled to proceed with the claim.

Different forms of service, and how to properly serve court documents, are dealt with our Serving court documents factsheet. Alternatively, you can read the formal rules about service by checking Chapter 4 of the UCPR.

You must serve your claim as soon as possible – if you wait too long, you may not be entitled to proceed with the claim. See our Time limits – calculating time factsheet for more information. Make sure you keep a copy of the claim for your own future reference.

If you need more information about how to complete a claim and statement of claim, please contact the Self Representation Service.

Checklist

Commencing proceedings:

1. Do I have a cause of action? Please see our cause of action factsheet for more information.
2. What are the elements of that cause of action?
3. In which Court/Tribunal should I commence proceedings?
4. In which District should I commence proceedings?

Filing and serving the statement of claim:

1. Have I filed both my Claim and Statement of Claim at the appropriate court registry, either in person or by post? Note: You will be required to pay a filing at the time of your claim.
2. Have I served a copy of the Claim and Statement of Claim on each of the defendants personally? Note: this should be done as soon as possible. You must serve your Claim within one year.

Deciding to commence legal action

The following information may help you to decide whether you should start court proceedings. Ideally, you should always seek legal advice and assistance from a solicitor before commencing legal action.

Do you know what you want?

Before commencing legal action, it is important to identify what it is you want as a result of the legal proceedings. Is it compensation? Is it reinstatement of your job? Or is it simply an acknowledgement of fault and an apology? It is important to know this to determine, first, whether the court can in fact give you want you want and, second, whether what you want is worth the stress of going to court.

Do you have a cause of action?

It is not enough just to have a grievance. You must have a cause of action that is recognised by legislation or common law as giving rise to an entitlement to legal action. Negligence for example, is a cause of action. In common law, negligence has 3 elements to be proved – that another person owed you a duty of care, that the person breached their duty and the breach caused you damage. You cannot ask a court to hear a negligence claim if your claim does not satisfy all 3 elements. For example, the first two elements may be satisfied, but you may not have suffered any real damage (see our factsheet on Damages and loss).

Be aware that the court in which you raise your grievance must have power to deal with that grievance. Certain courts have the power to deal with certain causes of action. For example, negligence is a civil tort or wrong that courts exercising civil jurisdiction can hear. You cannot ask the Family Court to hear a negligence claim.

For more detailed information, see our Cause of action factsheet.

Do you have sufficient evidence?

You cannot just say what you think happened. You have to prove it; you have to produce evidence.

Evidence can be in the form of documents, sound and video recordings, written witness statements and oral statements made in court. Keep in mind that if a person gives evidence of an event, such as a car crash, then they normally have to have knowledge of that event first hand, that is, they personally saw the crash happen.

In addition, your evidence has to be believed. If you say one thing and the other party contradicts what you say, then the judge (or jury) has to decide which version he or she accepts. The judge will make the decision on the basis of considering all of the evidence and his or her assessment of the character of each witness. The solicitor or barrister for the other side will try to question the reliability or character of you and your witnesses and point out the negative aspects of your case.

For more detailed information about evidence see our Evidence and proof in civil proceedings factsheet.

Do you have a lawyer?

Legal action can be a complex and frustrating process. A lawyer can help you negotiate and understand this process and will give you the best chance of succeeding.

If you cannot afford a private lawyer, then some alternatives may be:

• A solicitor on a ‘no win, no fee’ basis – see the Queensland Law Society website
• A community legal centre – see the Community Legal Centres Queensland website.
• Legal Aid Queensland – see the Legal Aid Queensland website.
• A pro-bono lawyer (who provides legal assistance on a free or reduced fee basis) – see LawRight’s website.
• A mediator, for alternative dispute resolution – see the Department of Justice’s Dispute Resolution Services website.

In exceptional circumstances you may be able to ask the court to allow another non-legally qualified person to represent you, or at least help you in court by sitting beside you, take notes and give advice. You would need to show the court why you cannot represent yourself, for example, unable to attend court because you are in prison, English is your second language or you are unable to afford a lawyer.

If you are representing yourself, LawRight’s Court and Tribunal Services may be able to help you. See the LawRight website under Services for more information.

Other factors to consider before commencing legal action

Going to court should be a carefully measured decision. Representing yourself in court is NOT easy. There are many risks involved, and you should be aware of the possible consequences:

• It is expensive – if you lose you will likely be ordered to pay the legal costs of the winning party.
• It is very difficult to know the likelihood of success before you start proceedings. Do not let feelings of anger, injustice or retribution fuel you into pursuing your case through the courts. Make sure you have a valid cause of action and sufficient evidence in support.
• It is likely to be a long process.
• It can have adverse effects on other parts of your life, such as your health, relationships and family.
• Managing and presenting your own case requires compliance with the rules and practices of the court. Cases frequently revolve around the finer points of law or evidence, which can be difficult to understand and navigate.
• It can be extremely stressful.

Alternatives to court proceedings

Before commencing legal action, have you:

• Advised the other side of your complaint? It may be worthwhile writing to the other side, setting out your grievance, to give them an opportunity to put forward their point of view or even offer a solution out of court.
• Made a complaint to the relevant regulatory body? Depending on the type of dispute, you may be able to access dispute resolution processes offered by various regulating authorities such as the Office of Fair Trading or the Health Quality and Complaints Commission
• Tried mediation? The Department of Justice and Attorney-General provides mediation services which are generally free to the public and for a fee in relation to facilitations and workplace mediations. See their website or telephone 07 3728 7000 or 1800 017 288. See also LawRight’s fact sheet on Mediation – a short guide.

However, you need to be aware of any time limitations that apply to your case. If you do not commence legal action within the relevant time period, then it may be difficult or even impossible to have your matter heard. See our factsheet on Limitation periods for further information.

Cause of action

Not everyone who has suffered loss, damage or injury may claim against a person or organisation they believe is the cause of their harm – a cause of action is required.

What is a cause of action?

A cause of action is the technical legal name for the set of facts which give rise to a claim enforceable in court. It is a legally recognised wrong that creates the right to sue. Each cause of action consists of points the plaintiff must prove and all of these elements must be satisfied in order to take court action.

A cause of action may arise from either a law passed by the parliament (statute) or from the common law. The common law has evolved gradually over time, and is law made by judges when they give their judgment on a case brought before them. This process has led to the development of various causes of action which may be used to bring an action in the courts. Which court will hear your case depends on the type of cause of action.

A lawyer cannot help you in taking your case to court if you do not have a cause of action. The court cannot hear your dispute nor make a decision without a valid cause of action. If you decide to proceed to court without a valid cause of action, the court is likely to dismiss your claim and order you to pay costs.

Why do I need a cause of action?

There are public policy reasons for only allowing certain causes of action. People are always suffering loss or injury, but if everyone was allowed to sue anyone without having a proper cause of action, the courts would be clogged with hearing every case brought before them. This would mean that the people who do have a clear and justifiable case may not get the justice they deserve.

For these reasons, the legal system has evolved and formed sets of conditions to separate cases that do have a likely cause of action from those that do not.

Examples of causes of action

There are many specific causes of action. The following are examples of some common causes of action that may be taken to court.

• If a person unjustifiably enters or remains on your property without your permission, even where no damage is done, you may have an action in trespass to land. This can range from someone squatting on your land, to someone dumping their rubbish on your lawn. If this is a one-off event such as a drunk person sleeping in your front lawn, the police can be called to remove the offender. However, if it is continued, you can seek an order (an injunction) from the court to stop the trespass and ask the court for damages.
• If you have made a legally binding agreement with a person and they fail to do what you both agreed to, you may have an action against them for breach of contract. This could include when you hire a plumber to install new pipes but instead the plumber only changes the washers in the taps.
• If a person is substantially and unreasonably interfering with the use of your land without physically interfering with it, you may have an action in private nuisance. This could include a neighbour flooding your land, a neighbour deliberately watching and recording you, or a neighbour who has regular, loud, late-night parties involving shouting and swearing. However, you must not be particularly susceptible to the interference and the interference must be substantial and unreasonable.
• If a person directly, intentionally, unlawfully restrains you against your will preventing your escape, you may have an action for false imprisonment. This could include somebody locking you in a vehicle or an office and not allowing you to leave, or bullies cornering you in a room. However, false imprisonment does not apply to lawful police detention.
• If a person or organisation causes you or your property harm unintentionally by not exercising proper care and skill, you may have a claim in negligence. The law of negligence is quite complex and broad, and may include an injury you suffer from a driver who is speeding, or a doctor who leaves a medical instrument in your body after an operation they perform on you.
• If as a tenant you are asked to leave your rental property without proper reasons by your landlord, you may have a cause of action to the Queensland Civil and Administrative Tribunal under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). This may include the situation where after you asked the landlord to fix the broken oven they asked you to leave the property with no grounds for this request. The landlord cannot ask you to leave the property to retaliate against you for taking actions to enforce your legal rights.

What can I do if I have a valid cause of action?

Even if you seem to have a cause of action, this does not mean that you will automatically win the case or receive monetary or another form of compensation. There are many other factors which must be considered, but establishing a cause of action is the first step in going to court.

In order to successfully commence a legal action you must also have standing to appear before the court and evidence that the person accused of causing the harm did in fact cause the harm. Please see LawRight’s factsheets on Standing and involvement in legal proceedings and Evidence and Proof in Civil Proceedings for more information on these issues.

You should also ensure that you commence your matter in the appropriate court or tribunal. For further information see the Queensland Courts Website.