Defending a Magistrates Court Complaint
Filing the Claim

A civil claim is commenced in the Magistrates Court of Victoria when a Form 5A Complaint is filed with the Court. It contains a Statement of Claim.

The claim will usually set out the facts in support of the claim (such as a breach of contract) and the amount being claimed.

The party that brings the claim is known as the Plaintiff. The party who the claim is against is known as the Defendant.

Serving the Claim on an Individual

As a Defendant, the first you may be aware of it is when it is served on you. This could be a person showing up at your doorstep and physically handing you the document. If you refuse to accept it, they can put the document down and tell you what it is and you are still deemed to have received it.

Serving the Claim on a Business

If you are conducting a business it can be delivered to your business and served there on a person who appears to be above the age of 16 and who appears to be in charge of the business or is employed in the office of the business.

Serving the Claim on a Company

If the claim is against your company, it can be posted to the registered address of the company. It is important to ensure your address is up to date with ASIC and the post at the address is regularly checked.

Defending the Claim

When you receive the Form 5A Complaint, it is important to deal with it promptly. If the complaint is served in Victoria, you have to file a Notice of Defence not less than 21 days after service.

If you fail to file a defence, the Plaintiff may apply to the Court to have an order made against you or your company for the amount of their claim, plus interest, and legal costs.

Ensure you get legal advice early so you have time to prepare your Defence before it has to be filed with the Court.

Once a Defence has been filed, there are usually various procedural steps, including disclosing to the other party documents you have which relate to the claim and mediation (or pre-hearing conference), prior to a Trial.

It can be a complex process, with significant consequences, so it is important you obtain legal advice early.

This communication is intended to provide commentary and general information in relation to Victoria, Australia. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.