Bringing A Strike Out Application

Bringing An Application to Strike Out Pleadings


AITKEN WHYTE LAWYERS

LITIGATION AND DISPUTE RESOLUTION LAWYERS AND SOLICITORS FOR BRISBANE, THE GOLD COAST, AND THE SUNSHINE COAST, QUEENSLAND

What Are Pleadings?

Pleadings” are formal documents filed with the Court. They set out the facts a party wishes to rely on to prove their case in civil proceedings. This can be their claim against another party or their defence to a claim against them.

Proceedings are often started by the filing of a Claim and Statement of Claim. The filing party becomes the Plaintiff in the proceedings.

The Defendant(s) may then file a Defence (and possibly Counterclaim).

This may be followed by the filing of other documents, such as:

  • a Reply or Reply and Answer by the Plaintiff; and
  • a Rejoinder by the Defendant.

Collectively, these documents make up the pleadings in a proceeding.

Drafting Appropriate Pleadings

The Uniform Civil Procedure Rules 1999 (Qld) (UCPR) govern civil proceedings in QLD. The UCPR set out:

  • rules that litigants must follow generally; and
  • rules for drafting pleadings.
Avoiding Undue Delay, Expense, & Technicality

An overarching obligation of parties to a proceeding is to proceed expeditiously. Each party gives an implied undertaking (a formal promise) to the Court and to each other to do this. As such, the UCPR state that the Court can impose sanctions on a party who does not comply with the rules. The UCPR go on to provide the following example:

The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.

Uniform Civil Procedure Rules 1999 – Reg 5

It is therefore vitally important that the rules are followed when drafting pleadings. The Court has the power to dismiss a proceeding due to a party’s failure to do so.

This can also, however, be used to a party’s advantage if the other side has breached the implied undertaking. For example, if they fail to draft their pleadings appropriately.

The UCPR gives an overview of how pleadings are to be drafted. This is set out in Rule 149.

In summary, the pleading must set out all facts the party wishes to rely upon. It must not leave out any specific matters but must also be as brief as possible while achieving this. This means it must not enter into matters that are not directly relevant to pleading the party’s case.

This can be somewhat difficult to achieve, particularly in a heated dispute. Without experience in such matters, the pleading drafted may not meet all requirements. Our article here discusses how to avoid having your pleadings struck out.

To ensure they comply, contact our Brisbane lawyers to draft the pleadings on your behalf.

What Is a Strike Out Application?

A strike out application is an application asking the Court to strike out all or part of a pleading. The application can be brought by either party on the basis that:

  • the pleading does not comply with the Court rules; or
  • a particular part of the pleading does not comply with the Court rules.

The UCPR states that:

The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.

Uniform Civil Procedure Rules 1999 – Reg 171

Costs Orders in Strike Out Applications

In civil proceedings, the usual rule about costs orders is that costs follow the event. What this means is that the unsuccessful party must pay the legal costs of the successful party.

Costs are a consideration in strike out applications, for both parties.

Significant costs orders against a party can impact the direction of litigation and court proceedings. They may even impact that party’s ability to proceed with litigating or defending their case. As above, costs orders following a strike out application may be on an indemnity basis. This means they can be far larger than simply a standard costs’ order. Costs on an indemnity basis mean a party must pay all the other side’s reasonably incurred costs.

Costs Following a Successful Strike Out Application

The party whose pleading has been struck out may need to pay the other party’s costs of the application.

Even if allowed to amend their pleading, they now face the prospect of:

  1. needing to draft a fresh pleading, or amend their pleading, in line with the UCPR;
  2. the costs associated with step 1; as well as
  3. paying the other party’s costs of bringing the strike out application against them.
Costs Following an Unsuccessful Strike Out Application

Conversely, if a party brings a strike out application and is not successful, they must now:

  • bear their own costs of the application in full; as well as
  • potentially have to pay the other side’s costs of defending the application.

Accordingly, before bringing a strike out application, you should seek sound legal advice. Ensuring you have good prospects of success can minimise the risk of an adverse costs order.

You do not want to be in the position of:

  1. having a large costs order against you; while
  2. still needing to progress the proceeding.

Further, it can greatly improve your chances of success by having experienced lawyers:

  • run your application; and
  • set out to the Court exactly why your application should succeed.

Reasons The Court Can Strike Out Pleadings

The UCPR goes on to describe the situations when the Court may:

  • strike out a pleading; or
  • strike out the deficient or offending part of a pleading.

These are if a pleading or part of a pleading:

(a) discloses no reasonable cause of action or defence; or

(b) has a tendency to prejudice or delay the fair trial of the proceeding; or

(c) is unnecessary or scandalous; or

(d) is frivolous or vexatious; or

(e) is otherwise an abuse of the process of the court.

Uniform Civil Procedure Rules 1999 – Reg 171

The final point is somewhat all-encompassing. It covers abuses of the court process not able to be strictly categorised, as well as the other points.

Points b, c, and d focus on the relevance and clarity of the pleading. The Court can strike out any part of a pleading likely to prejudice, embarrass, or delay a fair trial. A pleading is likely to do so:

  • if it contains vague allegations that the other party cannot specifically plead to; or
  • if it contains allegations that are irrelevant or unnecessary to plead the case; or
  • if it contains vexatious allegations, in that they are simply there to annoy, or are baseless.

It may also strike out the entire pleading if it fails to disclose a cause of action or defence, or is an abuse of process. An example of an abuse of process could be bringing multiple claims against a party for the one cause of action.

Summary Judgement Following a Strike Out Application

If a party has their pleading, or part of their pleading, struck out, they can apply to the Court to amend the pleading.

In the interest of progressing proceedings, leave to do so is usually granted.

In the event the party fails to amend the document, the other side can apply for Summary Judgement. In this way, strike out applications can be a useful tool in litigation.

You may apply for Summary Judgement on the basis that:

  • the other party’s pleading has been struck out due to one of the reasons outlined above;
  • they have failed to file a satisfactorily amended pleading; and therefore
  • there is no need for a trial; as
  • the other side has no real prospects of success.

Obtaining Judgement at an early stage in the proceeding avoids the time and expense of a trial.

Focused On Results

A well-timed and strategic strike out application can result in a favourable Judgement. Bringing such an application can lead to Judgement much earlier than if you were to win at trial. Aitken Whyte Lawyers have significant experience bringing these applications.

We can review the other party’s pleadings for any potential deficiencies. Should they exist, we will advise you if a strike out application is in order.

Following this application, we will guide you through the process and your options. If viable, we will swiftly make an application for Summary Judgement in your favour.

Conversely, if your pleadings have been struck out, don’t risk a Summary Judgement. Such a Judgement is, subject to any appeal rights, final.

Our skilled litigation lawyers can amend your pleadings to bring them in line with the UCPR. Filing amended pleadings by the Court’s deadline can avoid a Summary Judgement application.

You may receive notice from the other side that they intend to apply to have your pleading struck out. Contacting us at this stage can avoid a strike out application in its entirety. Pleadings usually need to be amended within a tight timeframe once notice is given. As such, it is important to contact a lawyer as soon as possible.

Of course the best time to contact an experienced litigation lawyer is:

  • before you file your Claim if you wish to commence Court proceedings; or
  • as soon as you are served with a Claim and Statement of Claim.

Engaging a lawyer from the start will provide you with a comprehensive strategy. This means you can achieve the optimum result as quickly as possible.

Aitken Whyte Lawyers Brisbane can assist with all civil and commercial litigation. Call us if you need to bring or defend a strike out application.

Contact 07 3229 4459 to speak with a litigation lawyer.

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Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
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