Many National Court proceedings never have a reply, and are none the worse for it. Order 8 Rule 5 of the National Court Rules 1983 explains when one is required.
Order 8 Rule 5
(1) Where a defendant serves a defence on a plaintiff and a reply is needed for compliance with Rule 14 or Rule 87 (defamation), the plaintiff shall file and serve the reply in Form 17 before the expiry of 14 days after the date of service on him of the defence.
(2) Where a plaintiff files both a reply and a defence to a cross-claim in Form 18, he shall put them in one document.
The test is need. A reply is required only where Rule 14 obliges the plaintiff to plead something specifically in answer to the defence, or where the defamation rule applies.
Where the defence simply denies the statement of claim, no reply is needed — and filing one that merely repeats the statement of claim wastes costs and risks departure under Rule 18.
What triggers the need
Rule 14 speaks of “a defence or subsequent pleading” — so it binds the plaintiff’s reply as much as the defendant’s defence. The plaintiff must plead specifically any matter which —
(a) makes the defendant’s defence not maintainable; or
(b) if not pleaded specifically, may take the defendant by surprise; or
(c) raises matters of fact not arising out of the preceding pleadings.
| Defence pleads | Plaintiff’s answer requiring a reply |
|---|---|
| A limitation defence | Facts putting the claim within time, or bringing it within a disability, fraud or concealment provision — new facts, so r 14(c) |
| Release or settlement | That the release was obtained by fraud, duress or misrepresentation — and see r 30, requiring particulars of fraud |
| Performance | That performance was defective or not accepted, on facts not already pleaded |
| No section 5 notice to the State | That notice was given on a stated date, or that a further period was allowed on sufficient cause |
| Illegality | Facts showing the transaction was lawful, or that illegality does not defeat the claim |
| A rule of customary law | The Rule 20A(3) matters — why the rule should not apply |
| Set-off under r 26 | Facts denying the cross-debt, where they are not already pleaded |
Rule 22 — what happens without a reply
(1) If there is no reply to a defence, there shall be an implied joinder of issue on that defence.
(2) (a) There shall be, at the close of pleadings, an implied joinder of issue on the pleading last filed; and (b) a party may in his pleading expressly join issue on the next preceding pleading.
(3) There shall be no joinder of issue on a statement of claim.
(4) A joinder of issue operates as a denial of every allegation of fact made in the pleading on which there is a joinder — unless, on an express joinder, an allegation is excepted and stated to be admitted, in which case it operates as a denial of every other allegation.
Under Rule 21(1), an allegation stands admitted unless traversed or unless a joinder of issue under Rule 22 operates as a denial of it.
A defendant who does not plead to the statement of claim admits it, because sub-rule (3) excludes any joinder of issue on a statement of claim. A plaintiff who does not reply to a defence denies it, by the implied joinder under sub-rule (1).
The asymmetry is deliberate: the defence is an answer to a case already made, whereas the statement of claim is the case itself and must be met.
Sub-rule (4) allows a party to join issue generally while admitting specified allegations — useful where most of a defence is denied but one or two facts are common ground. Admitting what is not really in dispute narrows the trial and helps on costs.
Rule 6 — the sequence ends
A party shall not, except with the leave of the Court, file any pleadings subsequent to a reply.
Older practice had a whole vocabulary for later pleadings — rejoinder, surrejoinder, rebutter. Under these Rules the sequence stops at the reply, and anything further requires leave.
Where a reply raises genuinely new matter that the defendant must answer specifically, apply for leave. Where it does not, Rule 22(2)(a) supplies an implied joinder of issue at the close of pleadings and nothing more is needed.
Rule 5(2)
Where the defendant has brought a cross-claim, the plaintiff will often need both a reply to the defence and a defence to the cross-claim. Rule 5(2) requires them to be put in one document, in Form 18.
The reply is due 14 days after service of the defence under Rule 5(1). The defence to a cross-claim runs on its own time under Rule 4 — 21 days where the party is not required to give notice of intention to defend the cross-claim.
Where the two dates differ, work to the earlier, or seek an extension under Order 1 Rule 15 so that a single combined document can be filed in time.
Sources
- National Court Rules 1983 — O 1 r 15; O 8 rr 4–6, 14, 18, 20A, 21, 22, 23, 26, 30, 87; Forms 17, 18
- Claims By and Against the State Act 1996 — s 5
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.