The Royal Commission into Institutional Responses to Child Sexual Abuse (“RC“) has investigated how institutions across the country, including schools, churches, sports clubs and government organisations, have responded to allegations and instances of abuse. In February 2017, the RC released their report on the Catholic Church. The Australian Catholic Church released “grim” data revealing 7% of priests, working between 1950 and 2009, have been accused of child sex crimes; 1880 alleged perpetrators.
I have been working with victims of institutional abuse cases (religious and Government Institutions), in various capacities for a number of years. The length of delay in such cases, is a common occurrence and has been said to cause more ‘abuse’ to the victims. From my experience, I have found the Defendants tardy in their litigation responses, in spirit and the letter of UCPR and litigation principles. The defendants propose to the court this is due to a number of factors. Are there any tips that can be considered to put pressure on defendants to progress these matters in a timely manner, especially in respect to filing a defence?
Interestingly, at the RC, Francis Sullivan from the (Catholic) church’s Truth, Justice and Healing Council described the number [of alleged perpetrators in the Catholic Church] as “shocking” and “they are tragic [cases] and they are indefensible.“
However, the litigation delay by defendants to defend ‘the indefensible‘ are significant for victims, including (amongst many others ):
- Failing to put on a defence (as per r 14.3(1) UCPR) within 28 days after service of the Statement of Claim (‘SOC‘). The first return date may be months after filing the SOC, without a defence filed when you attend.
- You attend the first return date and just before the first return date the Defendants provide you with a draft Short Minute of Order (‘SMO‘) requesting further and better particulars (“F & B“), in order to file a defence, due to it being a a historical case, requiring further information. Its usually a very long timetable that the Defendants propose to seek F&B and file a defence, put on medical evidence, or alternatively, more commonly, not file a defence at all.
- This is usually in the framework that the SOC complies with the UCPR requirements, the facts are not usually terribly complex.
- At the first return date (or later) the Court orders a timetable, for example, the Defendant’s serve their F& B by [x] date and the Defendant’s to file a defence by [X] date. Then the Defendant/s do not comply with the Court ordered strict timetables, which has the likelihood to cause further delay as it makes it much more difficult for plaintiffs to then comply, or hurriedly comply so that the timetable can continue to move forward.
Whats The Purpose of Particulars (UCPR 15.1, 15.5)?
Particulars are not pleadings (UCPR dictionary defines pleadings) and therefore the opponent is not obliged to plead to them in response. They do not cure defective pleadings.
The purpose of particulars is to identify the scope of the facts (not evidence) properly relevant to the issues raised in the proceedings. The define the issues to be tried and enable the parties to know what evidence it will be necessary to have available to avoid taking up time with questions in dispute. They are intended to prevent injustice by taking the other party by surprise and intended to reduce costs.
First Return Date
Tip 1: Aim to ensure that the plaintiff’s case is ‘top end loaded’ with medical evidence ready and the plaintiff’s evidentiary statement completed at the first return date, to enable the court to lock all parties into a tight court timetable, including a date for the defendant/s to file a defence, to eliminate delay and progress the matter expeditiously to mediation.
Application For F & B
As stated previously, at the first return date, the Defendants will often seek a Court ordered timetable to serve F & B, which will usually be successful. Things to consider:
- it is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether the other party has adequate knowledge of what the other party alleges are the facts, for that is the case which the other party must meet [Turner c Dalgety & Co Ltd 2 (229)]
- the starting point is what is necessary to guard the other party against surprise. Has the SOC complied with the UCPR requirements?
Request for Further and Better Particulars – Oppressive?
Tip 2: After the first return date, if the Defendant’s seeks details or evidence of the plaintiff’s case by way of F & B, which go beyond what can reasonably be necessary to allow the party requesting to know the case it has to meet, they will not be ordered by the Court, if an argument ensues at Court, and objection may be made by the plaintiff’s, if pressed to provide informally.
Tip 3: A party’s obligation is to supply only the best particulars that they can, it does not include an obligation to provide the plaintiff’s evidence in the case.
It has been my experience, that the Defendant’s will often not comply with the Court ordered timetable (and it can occur with plaintiffs also). However, its often observed the Defendant’s will try to wriggle out of filing a defence before mediation, continuing the delay. This in practice means that six or more months may have passed from filing the initial SOC and there is still no F & B particulars served or defence filed as per the UCPR or the quick, cheap principles of litigation in the CPA. The matter is almost at a standstill, without forward movement!
Failing to abide by Court orders does not bode well for any party.
Purpose of Defence (UCRP 15.3)
A properly pleaded defence traverses only matters that are genuinely in dispute, and thereby identifies the matters that are requiring determination in the proceedings. It allows the plaintiff to know the scope of the case and the evidence required.
Pleadings are a basic function of litigation as they:
- Identify the issues in dispute between the parties, prevent surprise
- Confine or identify the genuinely contested issues between the parties
- Defines the scope of the evidence to be lead at trial.
- Intended to reduce costs by assisting parties to avoid incurring expense in preparing to meet issues that may never be put.
- Of fundamental importance in assisting courts to achieve the overriding purpose of just, quick and cheap resolution of proceedings.
No Defence Filed?
Tip 4: Even before the first return date, when 28 days have passed as per r 14.3 UCPR and no defence has been filed, try to put pressure on the defendants, write to the other party/s and inform them the plaintiff will be making application for default judgment within [X] days if a defence is not filed. No leave is required. Be prepared to follow through on the application if required, don’t make the plaintiff’s ‘intention known‘ unless prepared to follow through. There is usually a barrage of correspondence in response, stating the defendants will put on a Notice of Motion/Affidavit for [X] reasons and application will be made to be heard urgently before the Duty Judge. Alternatively….
Tip 5: If you want to provide the Defendants every opportunity to file a defence and comply with the Court ordered timetable, then wait until the defendant’s do not comply with the court ordered timetable provided at the first return date in respect to filing a defence by [X] date. Then apply for default judgment, however, be mindful that leave of the court is required if the matter is case managed.
Default Judgment (rr16.1 – 16.3, 16.6 – 16.8 UCPR)
Tip 6: A default judgment is by virtue of court rules rather than ordered by the Court. A default judgment can be ordered if the defendant is in default (r 16.2 UCPR), which includes ‘failing to file a defence‘ within the time limited by r 14.3(1) i.e. 28 days after filing a SOC or within such further time the Court allows (court ordered timetable).
The procedure concerning a default judgment will depend on whether the plaintiff’s claim is liquidated or unliquidated. In these types of case, these are unliquidated claims and require assessment by the court. Unliquidated claims are usually case managed and directions made pursuant to ss 56 and 57 of the Civil Procedure Act 2005 (NSW). The complexity of the matter will be a consideration taken into account to determine the time that is reasonable for filing a defence.
If the defendant is in default, UCPR r 16.7 is available, although if the case is being case managed entry of a default judgment can only occur with leave of the court. If a default judgment is entered quantum of damages must be assessed.
The effect of a default judgment is the same as a judgment given after a trial and enforcement proceedings may be required.
Defendants Seek To Set Aside Default Judgment
UCPR r 36.16 (2)(a) and (b) provides the court with power (unfettered discretion) to set aside default judgments. Upon application by the defendant, to set aside the default judgment the defendant must explain the delay in filings a defence and show that there is a defence to the claim that has merit. This ultimately puts a higher burden on the defendants in respect to their defence as they bear the onus of satisfying the court that the judgment should be set aside. If the judgment is set aside, the defendants have to file a defence and the issue of filing a defence (which is a common issue) is now satisfied.
If you need assistance to manage your victims of institutional abuse cases to ensure the most successful outcomes and litigation processes to minimise delay, contact me on (02) 9336 5399 or firstname.lastname@example.org
I write blogs on medical negligence/ victims of institutional abuse, mediation, family law:
- parenting (IVF & surrogacy)
- property (including 3rd party intervenors)
- Family law arbitration
- practice management
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