In litigation, “pleadings” include Court documents such as a:
These documents can be difficult to get right, especially for self-represented litigants. This article discusses:
For information about bringing a strike out application, see our article here.
If your pleading is deficient, a common tactic lawyers use is to apply to the Court to:
An application can also be brought to Court to strike out the entire proceeding. If such an application is successful, the matter will be summarily dismissed.
The Court may dismiss a matter even if there is a good case simply because that case has not been properly pleaded.
A Court generally will give a party more than one attempt to get their court documents correct. It can be an expensive exercise however if a party has been told by a court to change their pleading and especially if on more than one occasion.
Strike out applications are often brought by lawyers against other parties and including self-represented litigants. A pleading prepared without legal advice may not always conform to requirements. Without legal training, the proper preparation of a pleading can be difficult to get right.
If you have prepared and filed your own Statement of Claim or Defence, the solicitors for the Defendant (or Plaintiff as the case may be) may write to you:
If you have drafted your own Claim and Statement of Claim, a defendant may apply:
These applications can also be brought where lawyers are acting for both parties.
A successful strike out application can result in a costs order against the party whose:
Where the party was put on notice of the deficiencies in their case, such a costs order may be on an indemnity basis. This means the losing party must pay all the other side’s incurred but reasonable costs.
It can also mean that the losing party’s:
The Court can strike out pleadings, or part of a pleading, for various reasons.
The other party may allege, for example, that certain paragraphs are “embarrassing”. For this reason, those paragraphs ought to be struck out. “Embarrassing” in this context means that the words used could have various meanings or appear inconsistent.
They may also allege that a Statement of Claim discloses no reasonable or known cause of action. The same allegation can be made about a Counterclaim.
The Uniform Civil Procedure Rules 1999 (Qld) (UCPR 1999) set out rules for pleading properly. There are many cases that deal with applying these rules in strike out applications.
If your Statement of Claim, Defence or Counterclaim is not prepared per the UCPR 1999, you risk:
You can minimise this risk by engaging an experienced civil litigation lawyer. This way you can be sure your Court documents will be in line with the UCPR 1999.
The best way to avoid a strike out application is to have your pleading prepared with plenty of time by a lawyer.
Our litigation lawyers have significant experience preparing pleadings.
We also have experience:
Contact us if a solicitor has written to you threatening to make an application to Court against you. Our litigation lawyers can assist you to fix your pleadings and bring them in line with the UCPR 1999.
It is essential you have experienced solicitors when dealing with strike out applications. Our litigation and dispute resolution lawyers will make sure:
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000