If a defendant does not timely reply to a response, then a judge orders the defendant to file a reply within x amount of days; is that prejudicial to the responding party?

Prejudicial to plaintiff because: The defendant lost the opportunity to file a reply by not filing a reply timely. The defendant lost the opportunity to file a reply by not filing a good faith request for extension of time to file a reply showing good cause for not timely filing that reply. Judge did not order defendant to show good cause for not timely filing a reply before ordering a reply be filed. No good cause has been shown for why defendant did not make a timely reply prior to the issuing of an order for defendant to reply. The defendant is being given x amount of more days to prepare a reply than the plaintiff is being offered to make a sur-reply.

3 Answers 3


Most courts and tribunals have an overriding duty to serve the interests of justice. For example, s58 of the Civil Procedure Act (NSW) 2005 states: "the court must seek to act in accordance with the dictates of justice". Similarly, s18 of the Commercial Arbitration Act (NSW) 2010 says "each party must be given a reasonable opportunity of presenting the party’s case."

While it may be frustrating if a party misses a deadline, that does not, of itself, cause injustice. Preventing a party from fully presenting their case because of a missed deadline does cause injustice.

Ultimately, if there is a pattern of behaviour that suggests to the court or tribunal that missing deadlines is capricious, malicious or tactical, they may decide that the interests of justice lie elsewhere.


Chances are the judge did not want to delay the case further or felt it was more important to reach a conclusion to the case on the merits of the case itself rather than divert focus to addressing a failure to timely file as it would result in the same outcome as if the judge had not ordered the defendant to file a reply.

By first ordering to show cause only to delay progression of the case in lieu of defendant submitting an explanation presenting good cause as part of determining whether or not it be excusable that defendant be given additional time to file a reply or otherwise impose sanctions against defendant, the judge may have considered that in the interest of an efficient and speedy process (or proper justice), an order to show cause would further delay the defendant in drafting a reply to the the response and move the case forward.

It may not necessarily be prejudicial to the responding party (plaintiff) per se and may have just been the chosen path as being the lesser of two evils, assuming that if the motion is ultimately denied as a result of the response lacking a reply then one might argue it would seem prejudicial to the defendant who filed the motion and its dismissal would prevent the defendant from raising the motion again.

what authority does a judge order a party to file a reply when that party has obviously chosen to not file a reply?

Federal Rules of Civil Procedure Rule 6(b) - Computing and extending time, as well as the judge’s individual rules of practice.

To say, "when that party has obviously chosen to not file a reply" is an assumption, and a judge must remain objective when making a decision that adversely affects either party.


Thank you for the response and I agree deadlines should be met and deadlines should rigidly rule the lawsuit.

Federal rules of procedure requires a judge allow time for a party to make a response to a motion. Federal rules of procedure do not require a judge to allow a reply or sur-reply before making a ruling on the related motion.

There are no rules that I am aware of which require a party to make a reply or sur-reply. So, if a party does not "timely file a reply" - meaning they do not file a reply as in no reply is filed: under what authority does a judge order a party to file a reply when that party has obviously chosen to not file a reply?

If after months of not filing a reply a judge orders a party to file a reply does that prejudice the other party because it gives an unfair advantage of time to the party ordered to reply months after they had a response to study and long after the deadline?

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