If you are the defendant and you have a claim against the plaintiff, you can file a counterclaim in the same matter. This has the effect of the defendant in the original complaint becoming the plaintiff in the counterclaim.
A counterclaim may be filed and served on the plaintiff no later than 21 days after a notice of defence is filed. If you want to add a party - that is the not the plaintiff - by counterclaim, you should seek legal advice.
Court can be a complex and costly process. You should seek legal advice before filing a counterclaim. You may also wish to speak to the other party to try and resolve the dispute. The steps below provide general information about the application process. It does not cover all scenarios
STEP 1: Before you start
A notice of defence must be filed with the Magistrates’ Court before a counterclaim can begin. See the defending a civil matter page for more information.
STEP 2: Outline your counterclaim
Fill in a counterclaim - Form 10A, outlining your claim. If you are making a complaint against a party that does not live in Australia, contact your nearest Magistrates’ Court.
STEP 3: File your counterclaim
File the original and two copies of the completed counterclaim form with the Magistrates’ Court where the complaint was made. The original form remains with the court, one copy is for your records and the other copy is to be served on the other party. The form can be filed in person or by post.
A filing fee is also payable upon lodgement.
If the counterclaim is issued, the court will keep the original form and return two copies, so you can serve the other party.
STEP 4: Serve court documents
There are legal rules about the way in which you must give documents to the plaintiff. This is called service. Information about service can be found on the service of court documents page.
To complete service, a copy of the counterclaim form and two blank copies of a notice of defence – Form 8A must be served on the other party. This should be done no later than 21 days after a notice of defence is filed and served.
The person who served the documents must complete an affidavit of service - Form 6A. This provides information about how and when the documents were served.
The affidavit must be witnessed and sworn or affirmed in the presence of an authorised person. You may also need to file the affidavit to prove service. See the witnessing documents page for more information.
If documents are not served correctly, it may cause delays.
What happens next?
If the other party wants to defend the counterclaim, they must file a notice of defence and give you or your lawyer a copy.
If the counterclaim is defended, the Magistrates’ Court will send a notice telling you when you need to go to court. It will also explain the type of hearing you will be attending.
If, after 21 days, the other party does not file a defence, you may apply for default judgment. See the default judgments page for more information.
- File a notice of defence at the Magistrates’ Court where the original complaint was made.
- Complete a:
File with the Magistrates’ Court the original and two copies of the completed counterclaim form.
The counterclaim must be filed no later than 21 days after the notice of defence has been filed.
A filing fee is payable upon lodgement of the forms
Serve on the other party:
- a copy of the counterclaim form
- two blank copies of notice of defence - Form 8A
- Complete an affidavit of service, sign in the presence of an authorised person and file with the Magistrates’ Court.