The ordinary period for a defence is 14 days under Order 8 Rule 4 of the National Court Rules 1983. For the State it is considerably longer, and it varies with the kind of proceeding.
Section 9
Notwithstanding anything in any other law, in any proceedings for a claim against the State, the time within which the State shall be required to file a defence or appear in response to a summons on complaint shall be —
(a) in a claim commenced by writ in the National Court —
(i) where the statement of claim is endorsed on the writ — before the expiry of 60 days after the date of expiry of the time limited for it to give notice of intention to defend; or
(ii) where the statement of claim is not endorsed on the writ — before the expiry of 60 days from the date of service of the statement of claim; or
(b) where a cross-claim is made against the State — before the expiry of 30 days from the date of service of the cross-claim; or
(c) in an application under Section 57 of the Constitution — before the expiry of 90 days from the date of service of the application; or
(d) in a claim made in the District Court — before the expiry of 90 days from the date of service of the summons,
or such further time as the court before which the action is instituted, upon sufficient cause being shown, allows.
A striking difference
| Proceeding | Ordinary defendant | The State |
|---|---|---|
| Writ, statement of claim endorsed | 14 days after the time for notice of intention to defend expires — O 8 r 4(1)(a) | 60 days — s 9(a)(i) |
| Writ, statement of claim served separately | 14 days from service of the statement of claim — O 8 r 4(1)(b) | 60 days — s 9(a)(ii) |
| Cross-claim | 21 days where no notice of intention to defend is required — O 8 r 4(1)(c) | 30 days — s 9(b) |
| Constitution s 57 application | — | 90 days — s 9(c) |
| District Court claim | As that Court’s rules provide | 90 days — s 9(d) |
Paragraph (c) gives the State 90 days to respond to an application under Constitution section 57 — the longest of the four periods.
That sits awkwardly with the purpose of the Human Rights Rules, which is to facilitate a quick and just resolution. Practitioners should be aware of it when advising on timing, particularly where interim relief is needed — the answer in an urgent case is not to wait out the 90 days but to seek relief under Order 23 Rule 8(3) or an injunction.
Where the period starts
Paragraph (a)(i) — where the statement of claim is endorsed on the writ, the 60 days runs from the expiry of the time limited for the State to give notice of intention to defend. That time is itself not less than 30 days after service under Order 4 Rule 11.
Paragraph (a)(ii) — where the statement of claim is served separately, the 60 days runs from the date of service of the statement of claim.
On an endorsed writ the sequence is: at least 30 days for the notice of intention to defend, then 60 days for the defence. A plaintiff should not expect a defence inside three months of service.
Time is computed under Order 1 Division 3, and service is proved by the affidavit of service — which for the State should record the time as well, to show compliance with the section 7 hours.
The closing words
The State may have such further time as the court before which the action is instituted, upon sufficient cause being shown, allows.
Note the standard: sufficient cause — the same phrase used for extending the section 5 notice period. It is more demanding than the ordinary discretion under Order 1 Rule 15.
The extension is granted by the court before which the action is instituted, so the application is made in the proceeding itself.
And note that the section opens “notwithstanding anything in any other law”. Section 9 displaces Order 8 Rule 4 entirely; the ordinary 14 days has no application to the State.
The consequence for plaintiffs
A plaintiff who applies for default judgment against the State after the ordinary 14 days has acted prematurely. Section 9 governs, and it is the longer period that must expire.
Even once it has, section 12(3) imposes a further restriction: where the State is in default, notwithstanding that a plaintiff’s claim for relief is for a liquidated demand, judgement shall not be entered against the State for the sum claimed unless the claim relates to a debt only, and in all other cases judgement shall be entered for damages to be assessed and, where appropriate, for costs. See default judgment against the State.
Section 11 — in a suit to which the State is a party, the rights of parties, as nearly as possible, are the same, and judgement may be given and costs awarded, as in a suit between other persons.
So apart from the specific modifications the Act makes, the State litigates as any other party. The pleading rules in Order 8, discovery under Order 9, and the trial process under Order 10 apply in the ordinary way.
Sources
- Claims By and Against the State Act 1996 — ss 7, 9, 11, 12
- National Court Rules 1983 — O 1 Div 3, r 15; O 4 r 11; O 8 r 4; O 12 Div 3; O 23
- Constitution — ss 57, 58
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.