Rule 171 of the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR) allows a court to strike out a pleading or part of a pleading in some circumstances.
The rule is underpinned by the objective that “a claim should proceed in a timely way and that the rules are to be applied with the objective of avoiding undue delay, expense and technicality and to facilitate the just and expeditious resolution of the real issues”. [1]
This authority is in addition to the court’s inherent power to dismiss or stay proceedings it deems to be an abuse of power.
A court can exercise its strike out power if the pleading or part of the pleading:
For example, a court may strike out a pleading or part of a pleading that:
At any stage of the proceeding, the court may strike out all or part of the pleading and order costs be paid by a party on an indemnity basis.
If a party’s pleading (or part of it) is struck out, the party may apply to the court to amend the pleading. If the party does not, the opposing party may apply for a summary judgment on the basis the party has no reasonable prospect of success.
When the pleading fails to adequately outline the cause of action, or defence, then the pleading or part thereof, may be struck out.
This was the case in Butler v Crowley & Greenhalgh, where the plaintiff was allowed to make further written submissions to clarify his pleading. Atkinson J, in striking out the statement of claim, stated:
“The plaintiff took the opportunity to file voluminous, largely irrelevant, written submissions which have been painstakingly answered by counsel for the defendants who submitted that there was ‘no attempt at a logical or rational clarification of the statement of claim’ that was under attack… I agree with the defendants that the plaintiff has been given every opportunity to state his case and that the rambling and incoherent nature of his written submissions reflects the nature of the statements of claim which the defendants seek to strike out.” [2]
This ground reflects the UCPR’s fundamental purpose, which is to “facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”.
The pleading must clearly state the case that is required to be met, as Hanger CJ explained in Bloeman v Atkinson:
“Perhaps the best test is this: After you have drafted your pleading, banish your instructions from your mind for a moment, and imagine yourself a stranger coming fresh to the matter. Would your draft, read by itself convey to his mind a clear conception of your client’s case?” [3]
A prominent case involving scandalous allegations in a pleading is the sexual harassment claim made by political staffer James Ashby against Federal Parliament Speaker Peter Slipper in 2011.
Ashby and his solicitor Michael Harmer made claims of impropriety against Slipper, for which the court found there was no evidence.
Their actions were criticised by Justice Rares:
“I am of the opinion that Mr Ashby’s and Mr Harmer’s pleading of 2003 allegations were scandalous, oppressive and vexatious and an abuse of Mr Harmer’s professional obligations to the court as a lawyer.’’ [4]
A pleading may be considered vexatious for many reasons.
In Re Cameron, Fitzgerald P listed some of the reasons:
“Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources, and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis.” [5]
There is broad range of actions that may otherwise constitute an abuse of process.
An example is when a party bring multiple claims against another party in different courts for the same cause of action.
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