If you are in a dispute with another party, the matter may escalate to court / tribunal, which begins with a statement of claim or points of claim (together “originating motion”) being filed and served on you. An originating motion sets out the allegations made against you and the party’s desired outcome, which you may respond with a defence or points of cross-claim (collectively “response”). This article guides on initial steps to take when served an originating motion.
1: Record Service
The court / tribunal usually require ‘personal service’ of the originating motion to initiate proceedings against you.
As an individual, this involves:
- leaving with you; or
- if you deny acceptance, it is placed down in your presence and you are informed of its nature.
As a corporation, this involves:
- leaving at, or posting it to, your registered office;
- providing (as above) to your named director or secretary who resides in Australia; or
- leaving at last known address of an administrator or liquidator as lodged with ASIC.
The court / tribunal in circumstances may allow service by other means.
You should create written record of how, when and on who the originating motion was served.
Ineffective service may allow to force the originating motion be reissued.
2: Originating Motion Review
The court / tribunal require an originating motion to be detailed so you can understand clearly the allegations made and party’s desired outcome.
For example, in a contract case, this means showing:
- a contract exists between you and the party;
- you breached this contract; and
- your contract breach caused loss or damage to the other party.
You should record allegations in the originating motion which are unclear, vague or inaccurate and why you think this.
If the originating motion is non-compliant, you could seek it be struck out or force to be reissued.
3: Response Preparation
You usually have 28 days from effective service of originating motion to file your response.
In your response you need to address allegations of the originating motion and detail counter-claims you have against the party. You are not to submit evidence with this response.
Each court / tribunal have strict rules on response requirements. Non-compliance can result in:
- admissions of liability drawn against you;
- response not being accepted;
- lost opportunity to in part or in full bring response; and / or
- costs awarded against you for delays.
Failure to provide response in time may result in the court / tribunal ordering a default judgment against you, allowing the other party to proceed to enforce their originating motion against you.
It is recommended you obtain timely legal advice before preparing your response. While you know your case best, the costs of an incorrect response and enforcement can be substantial.
If served an originating motion, to ensure your case is best put forward and avoid potentially substantial costs, you should:
- record how, when and on who the originating motion was served;
- review the originating motion, noting any unclear, vague, ambiguous or inaccurate allegation and why you think this is the case; and
- seek timely legal advice to discuss the originating motion and prepare a response.