3.57: Contents of counterclaim
13.5: Variation of time periods

Case Summary

The Plaintiff commenced an Action against the Defendant for wrongful dismissal. More than two years after filing its Statement of Defence, the Defendant applied for permission to file a Counterclaim containing allegations that the Plaintiff destroyed data on his work computer when he was notified of his dismissal. The Court noted that permission was required to file a Counterclaim late since Rule 3.57(c) stipulates that a Counterclaim must be filed at the same time as the Statement of Defence. In this case, the Defendant had already filed its Statement of Defence, so the time for filing a Counterclaim had passed.

Master Prowse observed that, pursuant to Rule 13.5, the Court has the ability and discretion to extend the time for filing a Counterclaim. Master Prowse considered whether to allow the late filing using the test to amend Pleadings. Since the proposed amendment to the Pleadings amounted to fraud and included serious allegations of destruction of data by the Plaintiff at the time of dismissal, the test for such amendments included whether there was a “good ground” or “exceptional circumstances” to amend. “Good grounds” require significant evidence. Master Prowse observed that the evidence was unclear with respect to the destruction of data, and so granted the Defendant’s Application to extend time to file its proposed Counterclaim without prejudice to the Plaintiff to advance a limitations defence.

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