‘Originating Process’ is a generic term for various documents by means of which a civil litigation is commenced. It is defined by the Civil Liability Act (NSW) to mean “the process by which proceedings are commenced, and includes the process by which a cross-claim is made.”
One of the documents which can start a court case is a statement of claim. A statement of claim is a court document that sets out how much or what the other party claims someone owe them and why they are making the claim. The person who files the statement of claim is called the plaintiff.
An originating process almost always needs to be served to inform the defendant of the case being brought against them, and is the first step in litigation. The requirements for creating and formalising an originating process are as follows (further regulatory information can be found in the relevant Uniform Civil Procedure Rules):
- An originating process must be served to the defendant personally (except in cross-claims against active parties)
- An originating process in the Local Court may be served by delivering it to the defendant’s registered business or residential address and leaving it in the care of a person who appears to be 16 years or older and works or resides at the address OR the Court may serve it by post to the business/residential address.
- An originating process must be served on the defendant within 6 months of filing.
- In the District Court, the originating process must be served within 1 month where the defendant is inside NSW.
What are the options for a response?
When you receive the statement of claim you have a number of options to take within 28 days of being served, including:
File a defence
If you believe you don’t owe all or part of the claim, it is important you file a defence within 28 days of receiving the statement of claim at the same court where the claim was filed.
Filing a defence prevents you from having a default judgment made against you and it can be done at the same time as other actions explained below, such as asking for particulars or filing a cross-claim.
Pay the amount claimed or return the goods claimed
If the statement of claim is relating to money and you agree with the claim, you may:
- Negotiate an agreement about settling the matter with the plaintiff and have the statement of claim withdrawn.
- Pay the amount owed and notify the court by filing a notice of payment. The full amount owed will usually include any interest and the costs claimed by the plaintiff in the statement of claim.
- File an acknowledgment of liquidated claim form, which tells the court you agree you owe the money, and then file an application to pay it by instalments. In this case there will be a court judgment against you, so the plaintiff can take action to enforce the judgment.
If the statement of claim is relating to goods, and you agree with the claim, you may:
- Negotiate with the plaintiff an agreement about settling the matter and discontinuing the case.
- Set out your agreement in writing as terms of settlement and ask the court to make orders according to the terms.
Ask for more information
If you need more information about the matters in the statement of claim, you can write to the plaintiff a letter of request for further and better particulars.
You can also ask the plaintiff for further and better particulars after you file your defence.
If the plaintiff applies for a default judgment against you before responding to your request for more information, you can use your letter asking for further and better particulars to support an application to have the judgment set aside.
Another option you have to ask for more detail about the claim is by filing a notice to plead facts within 28 days of being served with the statement of claim.
You should get legal advice before deciding if you should file a notice to plead facts or a defence.
Negotiate
You can negotiate a settlement of the case with the plaintiff.
Go to external dispute resolution – consumer credit debts
If the claim is relating to a consumer credit debt, you can try an external dispute resolution (EDR) by lodging a complaint to the Australian Financial Complaints Authority (AFCA).
The EDR scheme is a free, independent service for resolving disputes between consumers and credit providers. Consumer credit debts include home loans, credit cards and personal loans.
When you make an application to AFCA, you should tell the creditor or their legal representative about it.
If your application is accepted, AFCA will contact the creditor and try to resolve the dispute through negotiation and conciliation. The creditor generally cannot continue with the court case or enforcement action without AFCA’s consent while the dispute is being considered.
If the dispute cannot be resolved by agreement, AFCA will make a decision. If you agree with the AFCA’s decision, it will become binding on your creditor. If you do not accept AFCA’s decision, you should get legal advice.
It is recommended to try EDR before filing a defence form.
File a cross-claim
If you believe that the plaintiff owes you money or has your goods, you may be able to file a claim against the plaintiff. This is called a cross-claim, and it must be filed within 28 days of the date you have been served with the statement of claim.
At the same time you file a cross-claim, you must also file a defence, otherwise the plaintiff can get a judgment against you.
We recommend that you always seek legal advice as soon as possible before taking any steps when you receive a statement of claim.
What is the legal effect of ignoring it?
If you do not take any action within 28 days of being served with a statement of claim, the plaintiff may get a default judgment made against you without you attending court or being notified. The default judgment can then be enforced.
What documents and information do you need to give your lawyer?
If you have been served with a statement of claim, you should seek legal advice as soon as possible and provide your lawyer with:
- the statement of claim;
- information regarding the debt or goods claimed;
- information regarding whether the plaintiff owes you money or goods;
- your financial situation;
- whether you are willing to negotiate a settlement with the plaintiff;
- any other information requested by your lawyer.
A claim form is a brief description of what a plaintiff is claiming from a defendant, while the statement of claim outlines the claim in detail.
A claim and statement of claim can be used to start proceedings for varying amounts, whether for an agreed or fixed amount of money, or unknown amounts such as damages or breach of contracts.
Examples of a claim may include:
- money owing on a debt
- damages to a motor vehicle
- breach of contract
- defamation.
Where your matter is heard
Which court will consider your claim depends on the value of the monetary dispute. Claims for amounts:
Note: For disputes of a value less than $25,000, visit the Queensland Civil and Administrative Tribunal.
Starting court action
To start court action, file the original and two copies for each defendant of the following forms at the court registry:
- Form 2 - Claim (UCPR)
- Form 16 - Statement of claim (UCPR) .
The forms can also be prepared online:
Prepare a civil claim online
A sealed copy will be returned for you to photocopy and serve on the defendants. A filing fee must be paid..
Serving the other party
Any adult can serve the other party by handing a copy of the claim and statement of claim to them personally.
You can serve a company by posting the claim to their registered office address or serving a director of the company personally. You will also need to provide proof of the address of the registered office, usually by ASIC search.
Serving the defendant
A claim and statement of claim can be served by the plaintiff or other adult, a private process server or a court bailiff.
If you wish to use a bailiff, court staff will tell you the relevant fees (or use our online search tool) and how to make contact with the bailiff.
The Uniform Civil Procedure Rules 1999 outlines other ways to serve documents depending on the claim type, agreement by legal representatives to accept documents and other special arrangements. Thoroughly investigate the correct way before you serve the documents.
Providing the defendant/s with a copy, or service of the claim, is very important as it establishes the jurisdiction of the court. If you have any questions or concerns, seek independent legal advice.
Proving the claim was served
The person who served the claim and statement of claim must complete a Form 46 - Affidavit (UCPR) for each defendant. The document must then be filed with the court.
What happens next
If the defendant disputes the claim, they must file a Form 6 - Notice of intention to defend (UCPR) and a Form 17 - Defence within 28 days. They must send you a copy of the forms after filing them.
Your matter is not automatically listed for a hearing after the defendant files a defence. You, the plaintiff, need to continue the claim. Within 14 days of receiving the defendant’s notice of intention to defend, file a reply in response to their defence.
When preparing your reply, you may:
- ask the other party for more information if you think they haven’t been specific enough
- find a third party who has documents or information relevant to your action, in which case you may need to file and serve Form 021 - Notice of non-party disclosure (UCPR)
- ask the other party to provide a list of documents in their possession relevant to your claim.
Requesting a settlement conference
After seeking more information, or after the defendant has filed and served their defence, you can ask the registrar to convene a settlement conference.
A settlement conference is convened by the registrar to discuss the claim issues with the parties. The process aims to resolve matters before they go to trial or at least define the issues that will be decided at the trial.
A claim and statement of claim won’t be set for a trial until a settlement conference has been held and all parties have signed Form 48 - Request for trial date .
If they pay the money
If the other party pays the debt, notify the court by filing Form 27 - Notice of discontinuance (UCPR) .
If they ignore the claim
If the defendant ignores your claim, you may request a default judgment/money order for the amount outstanding at least 28 days after the claim was served on them.
Read information about enforcing judgments/money orders on the website or refer to the Queensland Law Handbook.
Fees
The filing fees are prescribed by the Uniform Civil Procedure (Fees) Regulation 2009.
Legal representation
You don’t need to have legal representation; however, you may wish to seek independent legal advice if you’re considering civil action.
The other party may have legal representation if they wish.
Contact us for queries about claim and statement of claim.
Last reviewed 27 June 2018 Last updated 24 February 2022