Anderson v Daramalan College Ltd

As a result of directions made by the court, the plaintiff was permitted to file a reply by 13 April 2026.

The amended statement of claim was filed on 10 April 2026. Rule 483 of the Rules defines when pleadings close. Relevantly, r 483(1) provides that pleadings in a proceeding close: (a) if a pleading is served after the defence, or answer to a counterclaim—on service of the pleading; or (b) in any other case—7 days after the day the defence, or answer to a counterclaim, is served.

Given that, in the usual course, a reply would be required to be filed within 14 days, and in this case, within a somewhat longer period, the operation of r 483 is curious. Even though pleadings will close seven days after a defence is filed, if, subsequently within the 14 day period or such longer period as the court has allowed, a reply is then filed, the pleadings will effectively be reopened so as to only close on the service of the final pleading.

The submissions of the parties did not explain any underlying rationale for a scheme which creates that circumstance. In the present case, having filed the amended statement of claim in reliance upon r 505, the plaintiff did not in fact, by 13 April 2026, file any reply and hence, the pleadings were closed seven days after the filing of the defence pursuant to r 483. That was prior to the date upon which the amendment was made in purported reliance on r 505. Therefore, the defendant submitted that the amendment was outside of the scope of r 505, was an amendment made without leave of the court, and should therefore be struck out.

There were also some issues identified in relation to the amended statement of claim filed on 10 April 2026, namely that the amendments to the document were not completely marked up in accordance with r 509, with the failures relating to some relatively minor numbering issues. There were other amendments that were not otherwise properly marked up, although the material put before the court is limited and does not indicate whether that second category of failure was trivial or of substance.

The requirements under r 509 are very important. They place the burden upon the amending party to do the work to mark up the changes so as to eliminate the burden that would otherwise be placed upon the other party or the court in working out what amendments have been made. Parties should pay particular attention to this because the failure to do so indicates either a lack of professional competence or alternatively, a deliberate willingness to contravene the Rules in a manner designed to hinder the other party and the court. Neither of those circumstances is acceptable.

The plaintiff contended in correspondence that the pleadings remained open, and hence that the amendment was permissible under r 505. The plaintiff submitted that the direction permitting the plaintiff to file and serve any reply by 13 April 2026 was sufficient to have the consequence that pleadings were not to close prior to that date. That submission cannot be accepted. The effect of the order was simply to extend the time otherwise provided by the Rules so that it was somewhat longer than 14 days. It did not expressly keep pleadings open, nor did it require the filing of a reply.

Accepting that r 483 has the unusual consequences that I have indicated, the position taken by the defendant was correct. In response to the complaints of a failure to properly mark up the amendments and the correct claim that leave was required, the appropriate course would have been for the plaintiff to promptly remedy the substantive issues and indicate that an application for leave to amend would be made. Unfortunately, the position adopted by the plaintiff has required the matter to be formally determined by the court.

By the time of the hearing, the parties had agreed that the plaintiff should be granted leave to file an amended statement of claim and that the plaintiff would pay the defendant’s costs thrown away by reason of the amended claim. In dispute was whether or not the claim that was filed purportedly in reliance on r 505 should be struck out and whether or not the plaintiff should pay the defendant’s costs of and incidental to the application.

Notwithstanding the aridity of the debate and the fact that the parties have ultimately come to a sensible resolution on the substance, I consider that the position adopted by the defendant based upon the anomalous but unequivocal terms of the Rules was correct. As a consequence, I consider that the amended statement of claim filed on 10 April 2026 should be struck out, and that the plaintiff should pay the defendant’s costs of the application in proceeding filed by the defendant on 1 May 2026. Orders

Subject to one matter which I will ask Ms Cabban about in a moment, the orders of the Court are: (1) The amended statement of claim filed 10 April 2026 is struck out pursuant to r 425 of the Court Procedures Rules 2006 (ACT). (2) The plaintiff is granted leave to file an amended statement of claim, being the proposed amended statement of claim provided by email to the solicitor for the defendant at 5:01pm on 4 May 2026 (Amended Claim) on or before 25 May 2026. (3) The defendant is to file its defence to the Amended Claim on or before 9 June 2026. (4) The plaintiff is to pay the defendant’s costs of the application in proceedings filed by the defendant on 1 May 2026. (5) The plaintiff is to pay the defendant’s costs thrown away by reason of the Amended Claim. [Orders were made in the terms indicated].