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  • Writer's pictureDaniel Meyerowitz-Katz

Pleadings pro tip: if you don't plead to it then you admit it

I am constantly seeing paragraphs in defences saying something to the effect of: "The defendant does not plead to paragraph [X] of the statement of claim because it makes no allegation against the defendant."

There are two problems with that. The first is that you are probably wrong. Every paragraph in the statement of claim makes an allegation against the defendant. Even if you are one of multiple defendants and the paragraph seems to concern one of the other defendants, you should still treat it as an allegation against you. After all, maybe you think it doesn't hurt you, but the plaintiff is still suing you aren't they? If you don't expressly agree with something the plaintiff says then why would you admit that it's true?

"But I'm not admitting it" you might say. Well that's the second problem. You see, actually, you are admitting it. All of it. This is very important: if you don't deny or not admit an allegation then you are deemed to have admitted it.

Don't believe me? Here is r 14.26(1)-(2) of the NSW UCPR:

"(1) An allegation of fact made by a party in a pleading is taken to be admitted by any opposite party required to plead in response unless: (a) in the pleading in response, the opposite party traverses the allegation, or (b) a joinder of issues under rule 14.27 operates as a denial of the allegation. (2) A traverse may be made by denial or by a statement of non-admission, either expressly or by necessary implication, and either generally or as to any particular allegation."

And here is r 16.07 of the Federal Court Rules:

"(1) A party pleading to an allegation of fact in another party's pleading must specifically admit or deny every allegation of fact in the pleading.

(2) Allegations that are not specifically denied are taken to be admitted.

(3) However, a party may state that the party does not know and therefore cannot admit a particular fact.

(4) If a party makes a statement mentioned in subrule (3), the particular fact is taken to be denied."

Those are the jurisdictions I practice in for the most part, but if you are somewhere else then I can almost guarantee that the rules will be the same (or if you are in Queensland they are even stricter on this point...)

In other words, every time you write "the defendant does not plead to paragraph [X] of the statement of claim because it makes no allegation against the defendant" what you are actually saying is "the defendant admits the allegations in paragraph [X] because the defendant does not think the allegations are made against the defendant".

Does that seem like a sensible approach to take? Sure you might think that nothing is being alleged against you, but why take the risk? Why would you want to err on the side of admitting it? Why not just say "the defendant does not admit the allegations in paragraph [X]"?

And by the way, the same goes for pleading things like "the defendant says that paragraph [X] of the statement of claim is vague and embarrassing and liable to be struck out". Unless you also say "alternatively, the defendant denies the allegations in paragraph [X]" then what you are really saying is "the defendant admits the allegations in paragraph [X] because the defendant thinks that the paragraph is so embarrassing that nothing in it could possibly harm the defendant's case". Again, you seem to be taking an awful risk there, no? What if the judge doesn't agree with you and finds that the paragraph is clear enough? Then you've admitted it. Is that really what you want?

The ironic part is that pleading in that style is really a kind of "gotcha". The subtext is, "look at how much smarter I am than the Philistine who drafted that statement of claim and put those embarrassing paragraphs there". Which is all well and good until you get to closing submissions and your opponent points out that you have admitted everything in the paragraph. Who do you think will be truly embarrassed in that situation? Hint: probably not your opponent.

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