By Louise Cantrill, Partner and Kate Heremaia, Paralegal
On 1 January 2021, several amendments to the Court Procedures Rules 2006 (ACT) (the Rules) came into effect, spurred by a consultative review of practice and procedure in ACT courts by the Joint Rules Advisory Committee.
Principal among the amendments was a change to r 443 regarding the required content of defences. Previously, r 443 required defences to “specifically admit or deny every material allegation of fact in the originating claim and statement of, including any allegation by way of particulars” (r 443(2)) but only for motor vehicle and employment-related personal injury claims.
The amendment has now broadened the scope, requiring a ‘full’ defence to be presented in all personal injury claims (CTP, employment, public liability, institutional abuse, medical negligence etc.). All defences then must admit or deny every material allegation made in an originating claim and statement of claim and in particulars. Failure to comply means that an allegation is taken to be admitted even if an admission was not intended.
Further, if a Defendant wants to raise facts different from those presented by a Plaintiff, it needs to do so in the defence. The consequences for not doing so are high as a Defendant may not be able to raise evidence about alternate facts at hearing if not raised in their defence.
The amendment serves as an important reminder that pleadings have a distinct purpose – to precisely define the issues for determination and satisfy the requirements of procedural fairness. Rather than considering pleadings to be an overly onerous task best completed by junior staff members, practitioners should recognise that pleadings must be intentional and meticulous, and are a central component to a litigation strategy.
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