COMMERCIAL AND CIVIL LITIGATION AND DISPUTES

Strike Out Applications

Aitken Whyte Lawyers Sunshine Coast

LITIGATION AND DISPUTE LAWYERS AND SOLICITORS FOR THE SUNSHINE COAST, QUEENSLAND

What Is A Strike Out Application?

At any time during Court proceedings, either party may bring an application before the Court to “strike out” all or part of a pleading. Pleadings include documents filed in the court such as a Statement of Claim, Defence, Reply and Rejoinder.

A strike out application by the Defendant, for example, has the potential to significantly alter the course of the matter by:

  • causing all or part of the Plaintiff’s Statement of Claim to be struck out; and
  • resulting in an order that the Plaintiff pay the Defendant’s costs of the strike out application.

A party should therefore seek advice from a solicitor about responding appropriately if a strike our application has been brought against them. Whether an application is successful or not, the impact of the orders can have significant ramifications on the litigation, including large adverse costs’ orders against the unsuccessful party. Accordingly, it is also important for a party to seek advice on their prospects when considering if there are grounds to bring a strike out application.

Application to Strike out Pleadings

“Pleadings” are the main Court documents filed in a matter. They set out the facts a party wishes to rely on to either establish their case or their defence.

For example, a Plaintiff may bring proceedings against someone by filing a Claim and Statement of Claim. These documents need to set out the Plaintiff’s case against the other person or company. The party being sued is known as the Defendant (or in some instances, the parties are referred to as the Applicant and the Respondent). The Defendant can file a Defence to the Claim setting out the facts they wish to rely on to defend against the Plaintiff’s allegations.

Pleadings can be difficult to get right, particularly for self-represented litigants. The Uniform Civil Procedure Rules (UCPR) 1999 set out the requirements for pleadings. For example, statements made in a pleading must conform to Rule 149 of the UCPR. The UCPR also sets out the basis on which pleadings can be dismissed.

Application to Strike Out For Abuse of Process

Rule 171 of the UCPR outlines several grounds on which pleadings can be struck out. Rule 171(e) includes where a pleading or part of a pleading “is otherwise an abuse of the process of the court.

This ground is somewhat all-encompassing and may include the other reasons under Rule 171 where a strike out application would be successful, such as if the Court document:

  • does not outline a cause of action or defence;
  • is likely to delay proceedings;
  • is unnecessary; or
  • is vexatious.

Additional abuses of the Court process could also be:

  • bringing multiple Claims against a party in different Courts for the same cause of action; or
  • bringing a Claim simply to waste the other party’s time and money.

The UCPR sets out overriding obligations which parties must keep in mind when conducting proceedings in the Courts.

Summary Disposal

Strike out applications can be a useful tool to bring about the early resolution of a matter.
A successful strike out application may result in an opportunity for the successful party to apply for Summary Judgement and end the proceedings.

Following a successful strike out application, the Court may give permission, or “grant leave”, for the unsuccessful party to amend their pleadings in accordance with the UCPR.

If the party either:

  • fails to amend their pleadings; or
  • if their entire Claim or Defence is struck out, for example, as it does not disclose a reasonable cause of action or defence;

an opportunity to make an application for Summary Judgement may arise.

Before applying for Summary Judgement, the proceedings must have progressed to the stage where a Notice of Intention to Defend has been filed.

Any time after that, either party can apply for Summary Judgement without the matter going to a trial on the basis that:

  • there is no need for a trial; and either
  • the defendant has no real prospects of defending against the Plaintiff’s Claim; or
  • the Plaintiff has no real prospects of succeeding in their Claim.

Example Scenario

A potential scenario could be that you engage a solicitor because:

        • you have been served with a Claim and Statement of Claim;
        • you deny the allegations; and
        • you need assistance to draft a proper defence.

Upon reviewing the documents, we may find that a large part may not comply with the Rules. Accordingly, after drafting and filing a notice that you intend to defend the proceedings, we bring an application for those parts of the Claim to be struck out.

Remember

      • : An application to strike out a Claim, or part of a Claim, can sway the proceedings. You should ensure you’re properly prepared and consider having a lawyer prepare and appear on the application.

If the Plaintiff does not appropriately amend their pleadings this may be a basis for the Court:

      • to award Judgement in your favour;
      • make any other orders it thinks appropriate, such as for costs, and
      • dismiss the Plaintiff’s Claim against you.

Here to Help

Proper experience in running strike out applications and drafting pleadings is essential. Aitken Whyte Lawyers are focused on results.

Our Litigation and Dispute Resolution Team will advise you on the proper course to take to expediently resolve your litigation. Contact us if you have been served with a Claim or would like to bring a Claim against another party. If you are involved in proceedings and believe the other party’s documents do not comply with the Rules we can let you know your prospects of striking out their pleadings.

Aitken Whyte Lawyers can assist you with each step of your matter to ensure your proceedings are run efficiently.

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Sunshine Coast
Maroochydore
Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Ph: +617 5408 0655
Fax: +617 3211 9311
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SUNSHINE COAST OFFICE
Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Australia

T: 07 5408 0655

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