Dealing with lawyers on the other side of litigation

A common concern of self-represented parties in civil cases is how to deal with lawyers representing the other party. This factsheet sets out some tips and suggestions for dealing with a represented party.

1. If the other party is represented by a lawyer, deal with the lawyer rather than the other party. If the other party contacts you personally, you should always speak to the other party’s lawyer to tell them that their client has contacted you directly.
2. Bear in mind that the lawyer is only representing the other party in your case. As much as possible, you should try and separate your feelings about the other party from your dealings with the lawyer.
3. The other lawyer cannot give you legal advice as they are not acting for you. They may sometimes assist you with a procedural step, in the interests of progressing their client’s case, or they might during a negotiation tell you why they think your case is weak, but they are not able to give you legal advice.
4. Keep your phone conversations and letters to the lawyer neutral and on point. Do not get into arguments or accuse the lawyer of misconduct. It doesn’t help your case and it may weaken your credibility before the judge.
5. Lawyers take accusations of improper conduct very seriously and you need very clear evidence that establishes that the lawyer has acted improperly. Acting in their client’s (and against your) interests, is not enough to establish misconduct.
6. A good rule of thumb is that you should not write anything to the other side that you would not be comfortable with the judge reading. Even if you are writing on a “without prejudice” basis, this can become relevant to the judge’s decision about costs.
7. Consider what battles you are going to fight. Litigation can be a long and drawn out process. You don’t need to take issue with everything that the lawyers for the other party do (or don’t do). Taking this approach to litigation can be counterproductive. For example:

   Lisa is being sued by her former lawyers for payment of her bill. Lisa has brought a counterclaim arguing her lawyers were negligent. On 1 February, the Supreme Court makes orders requiring Lisa to file an Amended Defence and Counterclaim by 1 March, and then the lawyers to file their Amended Reply and Answer by 15 March. On 13 March, the lawyers write to Lisa informing her that they intend to file their Amended Reply and Answer on 21 March. Lisa refuses to agree to the extension. On 16 March Lisa files a form 9 Application seeking Judgment against the lawyers. This is heard on 23 March. The Judge dismisses Lisa’s application because she has not used the proper procedure for dealing with any delay by the Plaintiffs, and that she is not entitled to judgment. Lisa is ordered to pay the lawyers’ costs (including barrister’s fees) which come to $9,000. This leads to Lisa being made bankrupt, and she is not able to continue her claim for negligence.

8. If you feel that the conduct of the other parties’ lawyers has been improper, you can make a complaint to the Legal Services Commission (LSC) about that conduct. The LSC is the Queensland Government body established to regulate and supervise the conduct of lawyers in Queensland.
9. The Queensland Law Society has produced a guide for solicitors in Queensland on dealing with self represented litigants. You can get a copy of that guide here.

Court proceedings – making progress

While the Uniform Civil Procedure Rules 1999 (UCPR) aim for a quick and speedy resolution of civil cases, this does not always happen for a variety of reasons.

This factsheet is designed to outline some of the procedures under the UCPR that you may be able to use to progress a matter.

If your matter is on the Supervised Case List or the Caseflow Management List, then your matter will be subject to regular hearings and to directions to progress it. See our factsheet Court supervision of cases for more information.

Otherwise, there are a number of other options that you might like to consider:

1. If the other party has not complied with a particular step, you can send a rule 444 letter.
2. If the matter is ready for trial, you can send a request for trial date.

Rule 444 letters

You use a rule 444 letter if:

• You are seeking further and better particulars of a pleading under rule 161;
• You want to seek directions from the court for the progression of the matter under Chapter 10 Part 1 of the UCPR;
• The other party has not been complying with the UCPR and you want to seek orders to deal with that non-compliance under Chapter 10 Part 2 of the UCPR; or
• The other party has not complied with an order or direction of the court.

For example, you could use a rule 444 letter if:

1. The other party has not given you their list of documents, and the pleadings have closed;
2. The other party has not returned a request for trial date; or
3. The other party is in breach of a court order.

Writing a rule 444 letter

Below is a template of a rule 444 letter:

Dear [insert name]

[Case name]

Court File No.

This letter is written pursuant to Rule 444 and Chapter 11, Part 8 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

Relevant facts

[Chronological outline of facts relevant to proposed application.]

[PARTY NAME’S] Complaint

[Refer to rules, order not complied with.]

Intended relief

[Relief intended to be sought if the problem is not rectified. It should be the same as the orders that will be sought in the application to be filed. Eg: That the Plaintiff provide a list of documents within fourteen days; or that the Defence be struck out and the Defendent file an Amended Defence within twenty-one days.]

Why the [PARTY NAME] should have the relief

[Set out why you are entitled to relief if the complaint not rectified. Eg: Rule 162(1)(a) of the UCPR empowers the court to strike out a particular if it has a tendency to prejudice or delay a fair trial of the proceeding; or Rule 5 of the UCPR provides that the parties undertake to the court to proceed expeditiously and without delay to progress a proceeding.]

Time for a response

[At least 3 business days after date of the letter.]

Under the UCPR you can allow as little as three business days for the other party to respond, although allowing a lengthier period of two weeks can be better.

By the end of that period, you should have received a Rule 444 letter from the other party, either complying with the issue that you identified, or explaining why they believe that you are not entitled to the relief.

If you do not agree with the rule 444 letter, you can then bring an application to the court.

Completing your application documents

You will find the court forms on the courts website.

You will need a Form 9 Application, which should reflect the “relief sought” that you outlined in your rule 444 letter, and an affidavit (Form 46).

To this affidavit, you should exhibit a copy of your rule 444 letter and of the other party’s response.

When you file your documents, the court will give you a hearing date.

Serving court documents

This factsheet contains information about serving court documents on the other party in cases in the Magistrates, District and Supreme Courts of Queensland.

The Uniform Civil Procedure Rules 1999 (UCPR) contain a number of prescribed forms. You can find templates of these forms on the Queensland Courts Website.

Serving court documents

Service means giving the other party a copy of the court documents.

Personal service

In the District and Supreme Courts, documents that start a court proceeding (a Claim or an Originating Application) should generally be personally served on the other party.

When serving documents personally, you should ask the defendant their name.

If they refuse to accept the documents, it is acceptable to leave the documents in their presence after telling the defendant what the documents are (rule 106(2) of UCPR)

Example: You have filed a Claim and Statement of Claim against Jim Jones in the Supreme Court. You know Jim’s home address and that he is at home until 10.00 am in the morning. So at 9.00 am, you knock on Jim’s front door with the originating process in your hand. Jim answers the front door, and even though you recognise him, you say:

“Are you Jim Jones?” to which Jim replies “Yes, I am.”

You can then hand Jim the originating process – service is complete!

Say you start to hand the originating process to Jim but he steps back and moves to close the front door – he knows what the documents are and wants to avoid being served. You can say,

“This is a claim brought against you in the Supreme Court.”

You can then simply leave the originating process on the ground (or somewhere reasonable) at Jim’s front door.

In the Magistrates Court you can serve the other party the documents by leaving them with an adult who appears to reside at that address (rule 111 and rule 112 UCPR).

If before any court proceeding, the parties to a court case have made a contract, then that contract may state how the parties are to serve each other in the event of any court proceedings (rule 119 UCPR)

Mortgages, leases and most commercial contracts will contain such a clause. In such a case, personal service may not be necessary if the contract is complied with.

You should note that if you serve documents after 4 pm, then the person served is deemed to have been served on the next day (rule 103 UCPR). You cannot serve a person on Christmas or Good Friday unless a court order permits you to (rule 101 UCPR)

Corporations

A company can be served by posting the documents to the company’s registered office (section 109X Corporations Act 2001) or by leaving them at that address. To find the company’s registered office, you may need to do a search of ASIC’s company register (there is a fee for doing this search).

If an administrator or liquidator has been appointed, the company should be served by sending it to the administrator or liquidator.

Service of other documents

Parties to court proceedings notify the court of their “address for service” in a number of different ways:

• When a plaintiff commences proceedings, the address for service will appear on the claim.
• A defendant filing a Notice of Intention to Defend places their address for service in the Notice of Intention to Defend.
• An originating application contains an applicant’s address for service
• The respondent to an originating application by filing a notice of address for service
• A party can also file a Change of Address for Service (form 90) or a Notice that Party is Acting in Person (form 92).

It is important that you keep your address for service up to date.

Once an address for service has been given, documents can be served by posting, emailing, faxing, or leaving those documents at the address for service.

When you are serving court documents you should serve a sealed copy. If you have finalised the document by its due date, but you have not yet had it sealed by the court, you should email or fax an unsealed (but signed and completed) copy of the document, and tell the other party that you will be filing that document in the court as soon as possible and that you will send them a sealed copy as soon as possible.

Substituted service

If you cannot find the other party then you may need to make an application to the court for an order for substituted service under rule 116 of the UCPR.

To obtain such an order, you need to convince the court that it is impracticable to serve the other party in accordance with the rules and that the way (or ways) you are proposing are likely to bring the case to the attention of the other party: Kendell v Sweeney [2002] QSC 404.

Typical orders might involve bringing the court documents to the other party’s attention by:

1. Emailing them.
2. Placing an advertisement of the proceedings in a newspaper where it might come to their attention.
3. Leaving a copy of the court documents at the other party’s last known address or place of business.
4. Serving the documents on the other party’s close family members.

Serving the documents on the other party’s close family members. Sometimes a search of either the electoral roll, the Land Titles Registry, telephone directories and social networking websites can be of assistance in locating a party.

In addition to making an order allowing substituted service, the court can also state when service on the other party will be deemed to have taken place. This can become important if you are serving a claim, and you might need to apply for default judgment.

Disclosure – practice and procedure

When do I use this factsheet?

Once the pleadings (i.e. Statement of Claim, Defence (and Counterclaim), Reply (and Answer)) have been completed, or when the court orders, the parties must disclose the documents they intend to rely on.

Disclosure is outlined in Chapter 7, Part 1 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR)

What is disclosure?

Disclosure is the delivery or production of documents by a party to a case to the other parties in the case (rule 210).

Disclosure is intended to prevent surprise at the trial, inform the parties of the issues to be disputed at the trial, and to assist the parties to resolve disputes of fact.

There are three main steps in the disclosure process:

1. Serving a list of documents on the other party;
2. Offering inspection of your disclosed documents to the other party; and/or
3. Providing copies of your disclosed documents to the other party.

Who has to disclose?

In proceedings started by Claim, all parties to the court proceeding must perform disclosure (rule 209(1)(a)).

In proceedings started by Originating Application, disclosure only take place if the court orders it (rule 209(1)(c)).

When must disclosure take place?

Generally disclosure must take place within 28 days of the close of pleadings (rule 214(2)(c)).

The close of pleadings occurs:

• When a pleading (usually a Reply) is served after a Defence or an answer to Counterclaim.
• If the Defence is the final pleading in the matter, 14 days after the Defence is filed (rule 169).

The duty of disclosure continues throughout the entire court proceeding. Each time a relevant document comes into your possession or under your control, you need to disclose this to the other party within seven days (rule 214(2)(e)).

As a result you may have a list of documents, a supplementary list of documents, a further supplementary list of documents, etc.

In other cases disclosure must take place:

1. any time before the close of pleadings if disclosure is ordered by the court (rule 214(2)(a));
2. within 28 days after a summary decision by the court if the proceeding is not entirely finalised (rule 214(2)(b));.and
3. when any further pleading or amended pleading is delivered (rule 214(2)(d)).

You must deliver a copy of a document requested in writing by another party within 28 days of the request (rule 214(2)(f)).

What do I have to disclose?

You must disclose all documents:

• in your possession or under your control; and
• that are directly relevant to an allegation in issue in the pleadings (rule 211).

Documents are not just paper with writing on them. A document includes:

• any paper or other material on which there is writing;
• any paper or other material on which there are marks, figures, symbols or perforations; and
• any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (section 36 Acts Interpretation Act 1954).

A document is in your possession or under your control if:

• you possess it, that is you actually physically have the document;
• the document is in your possession but not owned by you;
• you are able to exercise direction over it (e.g. documents held by someone else on your behalf); and/or
• in some cases, you are able to access the document from a government department.

If you only hold a copy of a document you should disclose the copy.

A document is directly relevant to an issue in the proceeding if it tends to prove or disprove an allegation in the pleadings.

The following documents must be disclosed if the other party asks for them:

• documents relating only to damages (rule 221); and
• documents mentioned in the pleadings, particulars or in affidavits (rule 222).

What about disclosing groups or classes of documents?

A group or class of documents includes several documents that are of the same type and can be disclosed as a group rather than as individual documents (e.g., Annual Reports from 2000 to 2010, correspondence between plaintiff’s solicitors and defendant’s solicitors from 1 November 2006.

Are there documents I don’t have to disclose?

You don’t have to disclose:

• privileged documents;
• documents relevant only to credit or credibility of a party; or
• additional copies of documents already disclosed – if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the court proceeding (rule 212).

A document is privileged if it falls within one of these grounds:

• legal professional privilege: Communications to obtain confidential legal advice and documents prepared for use in existing or anticipated litigation such as correspondence between a party * to the court proceeding and their solicitor and/or barrister;
• without prejudice communications: Express or implied admissions or offers made during settlement negotiations that fail to produce a settlement;
• self-incrimination: Documents that would disclose self-incriminatory material (not for companies or incorporated associations);
• forfeitures and penalties: Evidence in support of a forfeiture or a penalty against you;
• oppression: When a request for a massive amount of information outweighs the benefits to be derived from it; and
• public interest: Information collected in the course of public duties or public administration.

Privileged documents do not include:

• expert reports; and
• a document consisting of a statement of an expert.

A party can challenge the other party’s claim of privilege by requiring the other party to file and serve an affidavit stating the basis of the claim within 7 days (rule 213).

What about documents with both relevant and irrelevant material?

As a general rule you should disclose entire copies of documents. Sometimes sensitive but irrelevant information contained within a document can be “redacted” (that is the sensitive information is removed by ruling a thick line through it). However it must be apparent to the other parties and the court that the material that has been redacted is irrelevant.

How do I perform disclosure?

Disclosure is performed by:

1. giving to the other party a list of documents under rule 211; or
2. giving to the other party copies of the documents in the list of documents (other than the privileged documents) when the other party requests copies (rule 214).

However, disclosure may also be performed by an inspection of the documents that need to be disclosed if:

• it is not convenient for a party to deliver a list of documents and copies of documents because of the number, size, quantity or volume of the documents (rule 216); or
• a party requests another party to produce for inspection specific original documents from the party’s list of documents (rules 215 and 216).

Do I have to pay for disclosure?

When the parties to an action have lawyers, the lawyers will often agree that each party will pay the photocopying expenses of the other party.

Under the UCPR, it is the responsibility of the party disclosing a document to:

1. provide a copy of that document to the other party; or
2. make the original document available for inspection, and to provide facilities for the making of a copy of those documents

without charge to the other party.

What happens if disclosure does not take place?

If you do not disclose a document, you:

• must not tender the document, or adduce evidence of its contents, at the trial without the permission (leave) of the court;
• may be liable to contempt for not disclosing the document; and
• may be ordered to pay the costs or a part of the costs of the court proceeding (rule 225).

If the other party does not disclose a document, you may apply to the court for:

• an order staying or dismissing all or part of the court proceeding;
• judgment or another order against the party required to disclose the document; or
• an order that the document be disclosed in the way and within the time stated in the order (rule 225).

If the court is satisfied that:

• there are special circumstances and the interests of justice require it; or
• there is an objective likelihood that a party has not complied with the duty of disclosure or a document or group of documents exists or existed and has passed out of the possession or control of a party (rule 223),

the court may order a party to:

• deliver to the other party a copy of a document or group of documents; or
• produce the document or group of documents for inspection by the other party; or
• file and serve on another party an affidavit stating that a specified document or group of documents does not exist or has never existed or the circumstances in which a specified document or group of documents ceased to exist or passed out of the possession or control of the party.

In other cases, the court may order a party to:

• deliver, produce or inspect a document or group of documents;
• not deliver, produce or inspect a document or group of documents;
• defer the delivery, production or inspection of documents (rule 223); or
• be relieved of the duty of disclosure (rule 224).

Do disclosed documents need to be produced at trial?

Disclosed documents must be produced at the trial if:

• notice to produce the documents has been given; and
• the party is asked to produce the documents at the trial (rule 227(1)).

If you tender a disclosed document at trial, the other party is entitled to rely on that document (rule 227(2)).

What if someone else has the documents?

The UCPR allows you to obtain documents from someone who is not a party to the proceedings through “non party disclosure.”

If you can get these documents in some other way, e.g. if the documents belong to you, you should not use the non party disclosure process (rule 243(1)(c)).

You need to (1) identify the allegations in the pleadings that the documents you want relate to, and (2) identify what documents you want to obtain.

You then need to complete a notice of non party disclosure, Form 21. You can find this form on the Court’s website.

You will be called the applicant. The non-party you are seeking documents from is called the respondent.

You should then file the original and at least two copies of the form in the registry.

Rules 243 and 244 require you to serve a sealed copy of the Form 21 notice on the following within three months of the date of issue:

1. any person, except for a party, that the notice seeks information about (rule 244(1)(a));
2. the owner of the document (if the respondent is not the owner of the document (rule 244(1)(b)); and
3. the respondent. You should serve the respondent after you have served the other persons required to be served (rule 243(2)).

The notice must be served in the same way as a claim (rule 243(1)(e)). It should be either personally served or in the case of a company served by posting it to the registered office of the company (section 109X Corporations Act 2001).

The respondent or another person served with a notice of non-party disclosure has seven days from when they are served to serve a written objection to producing the documents listed (rule 245(1)). Another person affected by the notices who wants to object needs the leave of the court to do so (rule 245(2)).

A notice can be objected to on the following grounds:

1. the expense and inconvenience to the respondent of complying with the request (if the respondent is objecting) (rule 245(4)(a));
2. lack of relevance (rule 245(4)(b));
3. that the documents are not sufficiently particularised (i.e. identified) (rule 245(4)(c));
4. privilege (rule 245(4)(d));
5. confidentiality (rule 245(4)(e));
6. the effect disclosure would have on another person (rule 245(4)(f)); and/or
7. if the objector was not served with the notice (and was required to be served), the failure to serve the notice (rule 245(4)(g)).

If an objection is served, the notice is stayed (rule 246). The applicant then has seven days in which to apply to the court for a decision about the notice (rule 247).

Can disclosure take place electronically?

In cases where there are more than 500 documents to disclose the courts encourage the parties to conduct disclosure electronically. Practice Direction 8 of 2004 Electronic Management of Documents deals with preparing a document protocol.

Drafting an outline of argument or submissions

If you are in a civil matter in the Queensland Court of Appeal or the District Court, or in some matters in the Magistrates Court, you will have to file an Outline of Argument.

Even if it is not required, it is common practice for lawyers attending court hearings to give the court a summary of their argument. In fact, it can be a good way of:

1. helping you to organise your thoughts ahead of the court hearing. This can be invaluable in calming your nerves. The better prepared you are, the easier your court appearance will be; and
2. putting your arguments in a clear straightforward way to the judge.

Various court practice directions deal with outlines of argument:

1. District Court Practice Direction 7 of 2020 requires the parties to appeals in the District Court to prepare and file an Outline of Argument.
2. Supreme Court Practice Direction 12 of 22 require the legal representatives of parties in interlocutory applications to file an Outline of Argument, limited to six pages.
3. Magistrates Court Practice Direction 5 of 2024 provides for parties to applications, who wish to provide an outline of argument, to do so, with such outlines usually being limited to six pages.

Some tips for drafting an outline of argument

1. Don’t make the Outline of Argument too long or repetitive. If your argument is expressed clearly and makes sense, then repeating it won’t make it more persuasive. If your argument is poorly set out, repeating it won’t help you. Make your point once, then move on to the next issue.
2. There isn’t a form under the UCPR for an Outline of Argument, but you can adapt the basic format of a court document (e.g. the header) to create your outline of argument.
3. Use headings. For example:
   1. Why should leave to appeal be granted? If you need the leave of the court, set out firstly why you are seeking leave to appeal, identifying the errors of law that you are relying on.
   2. If you don’t need leave, your first heading should be “What this appeal is about”; an introductory paragraph that sets out very basically what the case is about.
   3. Background; you should just include a couple of paragraphs setting out the key background facts of the case.
   4. Grounds of appeal; you should then use separate headings to discuss each of your ground of appeal first stating the law relating to that issue, then a separate paragraph applying the law to the facts of your case.
   5. Orders sought; you should include a heading where you set out what outcome you want from the court.

An outline for an interlocutory hearing might use the following headers:

What is this hearing about?

Background facts

Issues

Orders sought

4. Your Outline of Argument should contain the legal arguments you are relying on, not your evidence.
5. Your Outline of Argument should just be an outline or summary of your argument.
6. Consider using a chronology of the key facts.
7. Comply with the Practice Directions about Outlines of Argument in the court that you are appearing in.
8. If you are using an Outline of Argument, bring two copies for the court, one for each of the other parties and one for yourself.
9. Consider serving the Outline of Argument on the other party before the hearing.
10. Keep the outline short and to the point.
11. Use short paragraphs.
12. Avoid lengthy quotations.

Current as at 14 January 2025.

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?