Of all the pleading rules, Order 8 Rule 21 of the National Court Rules 1983 has the sharpest consequences. Ignoring a paragraph is not neutral. It is an admission.
Order 8 Rule 21
(1) Subject to sub-rule (3), an allegation of fact made by a party in his pleading shall stand admitted by any opposite party required to plead to that pleading unless it is traversed by that opposite party in his pleading, or a joinder of issue under Rule 22 operates as a denial of it.
(2) A traverse may be either by a denial or by a statement of non-admission, and either expressly or by necessary implication, and either generally or as to any particular allegation.
(3) Where a pleading makes an allegation of the suffering of damage, or an allegation of an amount of damages, a pleading to that pleading shall be taken to traverse the allegation, unless the allegation is specifically admitted.
An admitted fact is not in issue. No evidence is called about it, and it cannot be argued about. If the statement of claim alleges a written contract on stated terms, and the defence says nothing about that paragraph, the contract and its terms are established.
That can be decisive. A defendant who meant to dispute the contract but overlooked the paragraph has given away the case on that point — and the only route back is amendment.
Sub-rule (2) — two ways
| Denial | Non-admission | |
|---|---|---|
| You are saying | This is not true | I do not know; prove it |
| Use for | Facts within your knowledge | Facts outside your knowledge |
| Wording | “The defendant denies paragraph 6” | “The defendant does not admit paragraph 9” |
| Effect | The allegation is in issue | The allegation is in issue |
| Risk of misuse | Denying what you know to be true is improper | Non-admitting what is obviously within your knowledge invites criticism and costs |
A traverse need not use the word “deny”. Pleading a positive case that is inconsistent with the allegation traverses it by necessary implication — if the defence pleads that the goods were delivered on 4 May, that necessarily traverses an allegation that they were never delivered.
But relying on implication is risky. The safer course is to plead to each paragraph expressly and then plead your positive case.
Sub-rule (2) permits a traverse generally. Rule 28 nonetheless provides that a party shall not plead the general issue, and Rule 27 allows a pleading that discloses no reasonable defence or has a tendency to cause prejudice, embarrassment or delay to be struck out.
A defence consisting of “the defendant denies each and every allegation” and nothing else answers neither rule. Plead paragraph by paragraph.
Where silence does not admit
Allegations of the suffering of damage and of the amount of damages are taken to be traversed unless specifically admitted.
So a defendant does not admit the quantum of a claim by failing to plead to it. A plaintiff must still prove the loss. See how damages are assessed.
If there is no reply to a defence, there shall be an implied joinder of issue on that defence, and there is an implied joinder on the pleading last filed at the close of pleadings. A joinder operates as a denial of every allegation of fact in the pleading joined.
But Rule 22(3) — there shall be no joinder of issue on a statement of claim. That is why a defendant cannot rely on it, and a plaintiff can. See the reply.
Order 8 Rule 21(1) does not apply to an opposite party who is a disabled person.
A minor or a mentally disordered person cannot lose a point by silence. It is part of the protective scheme in Order 5 Division 2.
“Required to plead to that pleading”
Rule 21(1) applies to a party required to plead to the pleading in question. A defendant is required to plead to the statement of claim, so Rule 21 applies in full.
A plaintiff is required to file a reply only where one is needed for compliance with Rule 14 or Rule 87. Where no reply is needed, the plaintiff is not “required to plead”, and in any event the implied joinder under Rule 22(1) supplies a denial.
How to avoid the trap
- Plead to every numbered paragraph, in order. Rule 7 requires the statement of claim to be in consecutively numbered paragraphs precisely so this can be done.
- Account for every paragraph — admitted, denied, or not admitted. Then check the numbering runs to the end.
- Admit what is true. Admissions narrow the trial and help on costs. They are not concessions of liability.
- Plead your positive case after the traverse, and plead specifically the matters Rule 14 requires — limitation, fraud, release, performance, illegality — along with contributory negligence (r 15) and any customary law (r 20A).
- If you got it wrong, amend. Under Order 8 Division 4 a party may amend once without leave before the pleadings are closed, and otherwise with leave.
Order 12 Rule 27 allows judgment to be entered on admissions in a pleading, without waiting for trial. A defence riddled with deemed admissions can produce judgment against the defendant before any evidence is heard — see summary judgment and judgment on admissions.
Sources
- National Court Rules 1983 — O 5 rr 19, 26; O 8 rr 5, 7, 14, 15, 20A, 21, 22, 27, 28, Div 4; O 12 r 27
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.