When you’re involved in a dispute where the other party has served you with court documents, you may have questions about what happens next. If you decide to defend the matter, it’s important to have a good understanding of the general court procedure. We discuss five frequently asked questions about defending a case in court.

1. Can the Court Dismiss a Case?

In situations where a party commences legal proceedings that don’t have any real prospect of success, a court can ‘strike out’ these proceedings. This is called a summary dismissal. A defendant can also make an application to the court to dismiss a case.

A primary factor that the court considers when deciding when to strike out proceedings is whether the claim has any reasonable prospects for success. If there are no reasonable prospects, a court may determine that the plaintiff is abusing the court system and should not be allowed to burden the defendant and the court.

2. Can I Make My Own Claim About the Matter?

When a party brings legal proceedings against you, you may not only want to defend the matter but also, bring your own claim against the plaintiff or a third party. This is called a cross-claim (or counterclaim).

You can make a cross-claim when you have suffered some loss or damage as a result of the plaintiff or a third party’s conduct, or when someone other than you is responsible for the plaintiff’s loss. Simply putting on a defence in court will not give you the right to compensation for loss or damage.

The restriction here is that you can usually only bring a cross-claim against a third party when your cross-claim relates to the facts or events relevant to the plaintiff’s claim.

3. Can I Settle the Matter Once Proceedings Have Started?

Clients often ask whether parties can agree to settle a case while it’s still before the court.

The answer is ‘yes’ – you can reach an agreement with the other party (or parties) at any point throughout the process of litigation before the court makes a decision.

Parties may engage in ongoing negotiations behind the scenes, extending confidential offers to settle to the other side. Alternatively, parties may use more formal processes to resolve the matter such as mediation or a settlement conference.

Mediation and settlement conferences usually take the form of a facilitated negotiation where an independent person helps the parties resolve their issues. Where you reach an agreement with the other party to settle the dispute during litigation, both parties can sign a deed of settlement. If this occurs, the parties will then tell the court that they have resolved the matter and that the proceedings can be dismissed.

4. Will I Have to Pay the Other Side’s Costs if I Lose?

If the court decides the case against you, you’re likely to have to pay at least some of the other party’s costs. Following a judgment, the court will make an order for costs on a case-by-case basis.

Two important factors that influence the amount payable are:

  1. the type of court (some courts have specific rules or limits on costs); and
  2. whether either party had made any offers to settle.

5. What Happens if I Can’t Pay a Judgment Made Against Me?

After lengthy and costly legal proceedings, parties can sometimes find themselves unable to pay a judgment debt against them – so what happens?

First, parties should always consider this risk before commencing legal proceedings, and where appropriate, make settlement arrangements to avoid a difficult situation down the track. But if you can’t meet this debt, you can make an application to the court for an instalment order where a repayment plan will be arranged for you to pay out the debt over a period of time.

A plaintiff can take further legal action to recover the amount if you can’t pay (often referred to as enforcement action). If you are an individual, this may include orders relating to your assets, property or wages. And if the defendant is a company, this may include steps to wind-up the company.