Striking out Pleadings and Particulars
Striking out pleadings and particulars is a procedural mechanism under the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) that enables a court to remove defective pleadings or parts of pleadings which fail to meet the requirements of law or procedural fairness.
Rule 171 of the UCPR confers upon the court a discretionary power to strike out all or part of a pleading where it:
(a) discloses no reasonable cause of action or defence;
(b) has a tendency to prejudice or delay the fair trial of the proceeding;
(c) is unnecessary or scandalous;
(d) is frivolous or vexatious; or
(e) is otherwise an abuse of the process of the court.
The rule authorises the court, at any stage of the proceeding, to strike out the defective pleading and order costs on an indemnity basis.
The court may also receive evidence beyond the face of the pleading when determining such an application (r 171(3)).
The jurisdiction to strike out is not new; it reflects the historical power under former O 22 r 32 of the Rules of the Supreme Court 1991 (Qld), which permitted the court to strike out any matter tending “to prejudice, embarrass or delay the fair trial of the action.”
Although the term “embarrass” was omitted from r 171, the substance of that discretion remains.
In Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53 at [16], White JA confirmed that any pleading difficult to follow, ambiguous, or internally inconsistent may be struck out for its tendency to prejudice or delay a fair trial.
The rule thus operates as a safeguard to ensure that litigation proceeds on coherent and legally sustainable pleadings, rather than confused or speculative allegations.
The principles governing the exercise of this discretion are well established. Courts are slow to strike out a pleading unless the defect is plain and incurable.
In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, the High Court cautioned that the power should be exercised “only in plain and obvious cases.”
Similarly, in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 at 129–130, Barwick CJ held that a claim should only be struck out where it is so clearly untenable that it cannot possibly succeed.
This restraint reflects the court’s duty to facilitate the just, expeditious, and inexpensive resolution of the real issues in dispute (UCPR r 5).
Clear and compliant pleadings are central to that purpose. Pleadings define the issues for trial, restrict the scope of admissible evidence, and ensure that each party is on notice of the case it must meet.
In Ballesteros v Chidlow (No 2) [2005] QSC 285, White J described at [35]:
The function of pleadings is to state with sufficient clarity the case that must be met
Without such clarity, proceedings degenerate into inefficiency and procedural unfairness.
A pleading that obscures the material facts, omits essential elements of a cause of action, or introduces irrelevant or scandalous matter undermines the orderly administration of justice.
Procedural fairness demands that each party know the case it must answer.
Accordingly, r 171 serves as both a corrective and protective instrument: corrective, in that it removes defective or improper pleadings; protective, in that it preserves the integrity, efficiency, and fairness of the litigation process.
It enforces the overarching obligation in r 5 UCPR to apply the rules to avoid undue delay, technicality, and expense, ensuring that the real controversy between the parties is determined justly and without procedural distortion.
In this article, our experienced litigation lawyers give a complete guide to striking out pleadings and particulars in Queensland.
The Legal Framework for Striking out Pleadings and Particulars
Rule 171 of the UCPR codifies the court’s discretionary power to strike out all or part of a pleading that is legally insufficient or procedurally defective.
The grounds include failure to disclose a reasonable cause of action or defence, prejudice or delay to a fair trial, unnecessary or scandalous matter, frivolous or vexatious claims, and abuse of process.
The court may act at any stage, may receive evidence beyond the pleading itself, and may order indemnity costs.
The function of the rule is corrective, not punitive: it exists to maintain procedural clarity and ensure that litigation proceeds on coherent pleadings that properly define the issues for adjudication, consistent with the overriding purpose in r 5 UCPR.
The statutory power under r 171 operates alongside the court’s inherent jurisdiction to prevent abuse of process.
Both are exercised with restraint and only in clear or “plain and obvious” cases.
Long-standing High Court authority establishes that a pleading should not be struck out merely because it appears weak or unlikely to succeed; intervention is justified only where the pleading is legally untenable and incapable of supporting a cognisable cause of action on any view of the facts.
This high threshold preserves the principle that disputes should, where possible, be resolved on their merits, while ensuring that the court can strike out incoherent, oppressive, or legally baseless pleadings that undermine the fairness, efficiency, and integrity of the litigation process.
Rule 171 of the Uniform Civil Procedure Rules 1999 (Qld)
Rule 171 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) codifies the court’s power to strike out defective pleadings. The rule provides:
(1) This rule applies 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.
(2) 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.
(3) On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.
The rule is discretionary. It authorises intervention only where the pleading’s defects are such that they impede the fair and efficient conduct of litigation.
The discretion must be exercised judicially, with restraint, and in accordance with the overriding purpose of the UCPR, to facilitate the just and expeditious resolution of the real issues in dispute while avoiding unnecessary technicality or delay (r 5).
The court’s power is not punitive; its function is to maintain procedural clarity and ensure that the issues requiring adjudication are adequately defined.
In Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53 at [16], White JA described the modern operation of r 171 as the successor to O 22 r 32 of the Rules of the Supreme Court 1991 (Qld), which permitted the court to strike out or amend any matter in a pleading that tended “to prejudice, embarrass, or delay the fair trial of the action.” The case says at [16]:
Rule 171 closely resembles the language of former O 22 r 32 Rules of the Supreme Court 1991 (Qld) whichenabled a judge to strike out or amend any matter in the pleading which tended “to prejudice, embarrass, ordelay, the fair trial of the action”. The word “embarrass” has not been retained. Nonetheless any pleadingwhich is difficult to follow or objectively ambiguous or creates difficulty for the opposite party insofar as thepleading contains inconsistencies, is liable to strike out because it can be said to have a tendency to prejudiceor delay the fair trial of the proceeding rather than “embarrass” the opposite party.
The discretion under r 171 is broad but confined to clear cases of defect.
The courts recognise that striking out pleadings and particulars is a severe step that denies a party its chosen mode of presenting its case.
It should therefore be exercised only when the defect is patent and cannot be cured by amendment.
This caution is consistent with the principle that litigation should, where possible, be determined on its merits rather than on technical deficiencies.
The Court’s Inherent Jurisdiction
The power to strike out pleadings under r 171 coexists with the court’s inherent jurisdiction to prevent abuses of its process.
The inherent power is broader in scope, extending to any proceeding that is frivolous, vexatious, or otherwise oppressive.
It operates to safeguard the integrity of the judicial process from misuse.
The statutory rule and the inherent jurisdiction serve the same purpose, to ensure that litigation proceeds within the bounds of fairness, relevance, and legal coherence, but the inherent jurisdiction is engaged where statutory rules are insufficient to address the abuse.
In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, the High Court held that the jurisdiction to strike out should be exercised “only in plain and obvious cases.”
Williams J stated:
… was appropriate only to cases which were plain and obvious, so that any master or judge could say at once that the statement of claim was insufficient, even if proved, to entitle the plaintiff to what he asked.
A claim should not be struck out merely because it appears weak or unlikely to succeed; the court’s function is to determine whether the pleading is untenable in law, not to assess its evidentiary prospects.
The clearest and most authoritative match is found at [13], where the High Court emphasises the very narrow scope for summary termination:
“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination … once it appears that there is a real question to be determined whether of fact or law… then it is not competent for the court to dismiss the action as frivolous and vexatious…”
This is the classic statement grounding the modern principle that the power should be exercised only in “plain and obvious” cases, and that summary dismissal is inappropriate where there is a reasonably arguable question of fact or law.
A second passage reinforces the same doctrine. At [14], O’Connor J is quoted:
“…the inherent jurisdiction of the court… will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.”
This aligns directly with your summary that the court does not strike out a claim simply because it appears weak, but only where it is legally untenable, not where its evidentiary prospects appear doubtful.
Similarly, in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 at [8], Barwick CJ warned that summary dismissal or striking out pleadings and particulars should occur only using the following test:
The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
These authorities establish the high threshold for intervention.
The modern application of r 171 preserves that caution. In Royalene Pty Ltd v Registrar of Titles [2007] QSC 59 at [6], McKenzie J emphasised that striking out pleadings and particulars is appropriate only in clear cases where the pleading is incapable of supporting a legally cognisable cause of action.
The court’s discretion, though wide, is not a license for overreach; it must be used to prevent injustice, not to pre-emptively adjudicate disputed facts.
The inherent jurisdiction remains available alongside r 171, ensuring that the court can intervene in proceedings that constitute an abuse of process even if the rule’s express categories are not engaged.
The overlap between the two powers reflects a unified objective: to protect the fairness, integrity, and efficiency of the litigation process.
The combined effect is that pleadings that are incoherent, irrelevant, scandalous, or legally baseless can be removed from the record, preserving the orderly conduct of proceedings and the proper administration of justice.
Grounds for Striking Out a Pleading
Courts may strike out a pleading under r 171 UCPR where it fails to disclose a viable cause of action or defence, or where its form and content impede the fair and efficient conduct of litigation.
A pleading discloses no reasonable cause of action when, even taking its facts as true, it cannot establish a legally recognisable claim.
Defects such as missing material facts, absent causal links, or reliance on bare assertions render a pleading legally insufficient.
Separately, a pleading that is confusing, ambiguous, inconsistent, or lacking particulars may be struck out because it prejudices or delays a fair trial by obscuring the issues and preventing the opposing party from understanding or responding to the case.
Other grounds for strike-out include unnecessary or scandalous material that diverts attention from legitimate issues; frivolous or vexatious claims pursued without legal foundation or for improper purposes; and conduct amounting to an abuse of process.
These categories preserve the integrity of court processes by ensuring that proceedings are confined to clearly articulated, relevant, and coherent disputes.
Consistent with long-standing authority, the strike-out power is exercised sparingly and only in clear cases, recognising that weak or poorly drafted pleadings can often be cured by amendment.
In contrast, plainly untenable or abusive proceedings warrant removal at an early stage.
Disclosing No Reasonable Cause of Action or Defence
A pleading discloses no reasonable cause of action or defence when, assuming the pleaded facts are true, they do not establish a legally recognisable claim or defence capable of succeeding at trial.
The defect lies not in the evidence but in the pleading’s failure to articulate a complete cause of action founded on material facts.
The test is objective: whether the pleading, read as a whole, can sustain a claim or defence in law.
Where the facts pleaded, even if proved, would not entitle the party to relief, the pleading is liable to be struck out under r 171(1)(a) of the UCPR.
The principle was articulated in Royalene Pty Ltd v Registrar of Titles [2007] QSC 59 at [6], where McKenzie J held that the discretion to strike out should only be exercised in clear cases. His Honour stated:
… the discretion to strike out should only be exercised where the defence raised is obviously untenable … Conversely it should not be exercised except in clear cases … That is especially so where the case is pleaded as a circumstantial one and the inference to be drawn from evidence critical to determining liability is not common ground and the evidence is untested.
The court cautioned against pre-emptive interference in the factual merits of a case, reserving strike-out for situations where the pleading is incapable of disclosing a viable cause of action on any view of the facts.
Similarly, in Giffin v Telstra Corp Ltd [2018] QSC 111, the court applied r 171(1)(a) to strike out a statement of claim filed by a self-represented litigant that failed to disclose a coherent cause of action.
Assertions rather than material facts characterised the pleading, lacked causal linkage between the defendant’s conduct and the alleged harm, and failed to identify any legal basis for the relief sought.
The court held at [25]:
… there is nothing in the documents that have been filed that states that case in a way which would enable Telstra properly to defend the proceedings by being able to work out, in the absence of a coherent statement of claim, the nature of the claim or the relief sought, what the claim is for and therefore how it could respond to it.
And said at [41]:
None of these documents provide a coherent series of factual allegations comprising the plaintiff’s case, or even the necessary details on which such a case could be inferred.
Finally ruling at [46]:
The Amended Statement of Claim discloses no reasonable cause of action.
The case demonstrates that the absence of a clear articulation of the legal and factual elements, particularly those establishing causation, constitutes a deficiency that justifies the exercise of the strike-out power.
Deficiencies in causation or the omission of material facts necessary to complete the legal foundation of a claim commonly lead to a strikeout.
The courts distinguish between inadequacy of evidence and inadequacy of pleading. A pleading that merely alleges damage without connecting it to an actionable wrong, or one that asserts breach without identifying the duty or the causal nexus, discloses no reasonable cause of action.
This distinction preserves procedural fairness: a defendant must be able to discern from the pleading the legal case it is required to meet.
Prejudice or Delay to the Fair Trial
A pleading has a tendency to prejudice or delay the fair trial of the proceeding when it is confusing, internally inconsistent, or inadequately particularised, thereby impeding the opposing party’s ability to respond.
The standard under r 171(1)(b) is directed at pleadings that, by their form or content, compromise procedural fairness and the efficient conduct of litigation. The focus is not on the pleading’s merits but on whether it obstructs the orderly resolution of the real issues in dispute.
In Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53 at [16], White JA said:
Rule 171 closely resembles the language of former O 22 r 32 Rules of the Supreme Court 1991 (Qld) which enabled a judge to strike out or amend any matter in the pleading which tended “to prejudice, embarrass, or delay, the fair trial of the action”. The word “embarrass” has not been retained. Nonetheless any pleading which is difficult to follow or objectively ambiguous or creates difficulty for the opposite party insofar as the pleading contains inconsistencies, is liable to strike out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding rather than “embarrass” the opposite party.
The court emphasised that clarity, coherence, and precision are essential attributes of proper pleadings. The absence of these qualities constitutes a procedural defect that justifies the court’s intervention.
The reasoning in Robson v Robson [2007] QSC 217 reinforces this principle. McMurdo J held at [19]:
… it is incumbent upon the defendants to properly particularise their case, rather than to wait for a demand that their case be pleaded appropriately, so that their opponent can understand the case which he has to meet and so that the relevant factual inquiry is sufficiently defined.
Finally deciding at [22]:
… the tax fraud case ought to be struck out because it is so devoid of particularity that it would prejudice a fair trial of the action.
The decision demonstrates that particulars are not mere formalities but an essential component of procedural fairness. Their absence can result in significant prejudice, delay, and unnecessary interlocutory disputes.
A lack of sufficient particulars may prejudice the fair trial of a proceeding by preventing the opposing party from understanding the case it must meet and from preparing an effective defence.
Unnecessary or Scandalous
A pleading is “unnecessary or scandalous” within the meaning of r 171(1)(c) of the UCPR when it includes allegations irrelevant to the determination of the issues or inserted for the purpose of causing embarrassment, harassment, or prejudice.
The term “scandalous” does not refer to moral impropriety but to matter that improperly burdens the proceeding with assertions that have no legitimate forensic purpose.
Scandalous matter includes allegations that are offensive or abusive, or imputations of misconduct unrelated to the issues in dispute. Such matter distracts from the real controversy and offends the principle that litigation should proceed on clearly defined, legally relevant issues.
Under r 149(1)(b) UCPR, a pleading must contain only material facts necessary to establish the cause of action or defence. Extraneous or inflammatory statements breach this rule.
Courts strike out such a matter because it undermines procedural fairness and delays the resolution of proceedings.
In Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53 at [16], White JA confirmed that any pleading which is ambiguous, inconsistent, or difficult to follow has a “tendency to prejudice or delay the fair trial of the proceeding.”
Allegations that are unnecessary or scandalous produce the same result, forcing an opponent to address irrelevant or unprovable issues and expanding the scope of discovery, evidence, and cross-examination.
Frivolous or Vexatious
A pleading is “frivolous or vexatious” under r 171(1)(d) when it lacks any rational legal or factual foundation or when its continuation would constitute an abuse of judicial process.
“Frivolous” denotes a pleading so devoid of merit that it cannot conceivably succeed.
“Vexatious” refers to proceedings pursued for improper purposes such as annoyance, harassment, or oppression rather than the genuine vindication of rights.
The distinction lies in intent: frivolousness concerns the objective futility of the claim; vexatiousness concerns the subjective misuse of the court’s process.
The principle that the strike-out power should be exercised only in clear cases was articulated in Royalene Pty Ltd v Registrar of Titles [2007] QSC 59 at [6], where McKenzie J held that the discretion “should only be exercised … in clear cases” and that the court must avoid pre-empting factual determinations on contested evidence.
Frivolous or vexatious pleadings cross that threshold by being incapable of raising any triable issue or by using the court as a vehicle for collateral or malicious purposes.
A pleading that is merely weak or poorly expressed is not, without more, frivolous or vexatious. The court distinguishes between deficiencies remediable by amendment and proceedings that are inherently untenable.
In Giffin v Telstra Corp Ltd [2018] QSC 111, the court observed that even where pleadings are confused or inarticulate, the appropriate course is usually amendment rather than termination, unless the pleading demonstrates an incurable absence of a cause of action or a pattern of abuse warranting intervention under r 171(1)(d). The Court said at [10]:
When Bond J struck out the Statement of Claim on 11 December 2017, his Honour granted the plaintiff leave to replead a Statement of Claim and directed the plaintiff to file and serve an Amended Statement of Claim … the plaintiff would have a second attempt to file an adequate pleading, but that this would be his ‘last opportunity.
The threshold remains stringent to preserve access to justice and ensure that only plainly unmeritorious claims are struck out.
Otherwise an Abuse of Process
Rule 171(1)(e) provides that a pleading may be struck out if it is “otherwise an abuse of the process of the court.”
This provision operates as a residual or catch-all category, enabling the court to address misconduct or procedural manipulation that does not fall neatly within the other enumerated grounds.
The concept of abuse of process encompasses actions that would bring the administration of justice into disrepute or that use judicial procedures for purposes inconsistent with their proper function.
The scope of this ground has been considered in multiple authorities.
In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, the High Court stated that dismissal or strike-out for abuse should occur only in “plain and obvious cases.”
In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, Barwick CJ held at [10] that proceedings may be struck out where the claim is “so clearly untenable that it cannot possibly succeed.”
The rule in Queensland codifies this principle, extending it to instances of procedural impropriety such as duplicative proceedings, collateral attacks on final judgments, or litigation initiated for improper motives.
In Sino Iron Pty Ltd v Palmer [2014] QSC 259 and QNI Resources Pty Ltd v Sino Iron Pty Ltd [2016] QSC 62, Jackson J recognised that abuse of process may arise where a party repeatedly files deficient pleadings or maintains proceedings lacking any legitimate legal basis, thereby undermining the orderly conduct of litigation. Jackson J said:
An inability to give particulars of a condition of mind required under a relevant pleading rule may lead to an order striking out a statement of claim as an abuse of process.
Similarly, in Coco v Ord Minnett Ltd [2012] QSC 324 at [18]–[19], the court held that even earnest attempts at pleading do not immunise a party from strike-out where the pleading’s structure or content obstructs a fair trial or distorts the issues for determination. Jackson J said:
Nevertheless, the case law recognises that a pleading may be so defective notwithstanding earnest attempts by the pleader that “it will be an act of mercy” to strike it out.
Typical abuses include duplicative actions seeking to relitigate issues already determined, collateral challenges to prior judgments, and proceedings brought for extraneous objectives, such as delay or coercion.
The inclusion of r 171(1)(e) ensures that the court’s supervisory jurisdiction remains complete: the rule prevents the court’s process from being used contrary to its fundamental purpose, the fair, efficient, and lawful resolution of genuine disputes.
Striking Out and Summary Judgment
Strike-out applications and applications for summary judgment perform distinct but complementary functions within the procedural structure of the UCPR.
Both mechanisms serve the overarching purpose of rule 5, to facilitate the just and expeditious resolution of the real issues in dispute and to prevent the misuse of court resources through untenable claims or defences.
Rule 171 provides a process for excising defective pleadings, whereas rule 293 authorises the court to enter judgment summarily when there is no real prospect of success and no need for a trial.
A strike-out application typically precedes any application for summary judgment.
It operates on the face of the pleadings and targets defects of legal form or substance that render a pleading incapable of supporting a cause of action or defence.
The function is corrective and procedural: to confine the dispute to issues that can be lawfully and fairly tried.
When a pleading is struck out, the court may grant leave to re-plead, but if the defect is incurable or if the party fails to amend within the permitted time, the opposing party may then seek summary judgment under r 293.
This sequence aligns with the principle that summary determination should follow only after the pleadings correctly identify the issues to be adjudicated.
Rule 293(1) empowers the court to give judgment for a plaintiff against a defendant, or vice versa, if the court is satisfied that the opposing party “has no real prospect of succeeding” on or defending the claim and that “there is no need for a trial.”
Unlike r 171, which focuses on the sufficiency of the pleading itself, r 293 permits the court to examine evidentiary material such as affidavits or documents to assess whether a genuine dispute of fact exists.
The rule merges procedural and substantive evaluation: it tests not merely the adequacy of the pleadings but the viability of the case on its factual foundation.
The distinction between the two mechanisms was examined by Jackson J in Sino Iron Pty Ltd v Palmer [2014] QSC 259 at [11]–[13]. His Honour observed that while both r 171 and the court’s inherent jurisdiction could be used to terminate defective proceedings, the court should be “slow to interfere by dismissal or the grant of a stay” on abuse-of-process grounds where that interference might undermine the procedure for summary judgment.
The reasoning recognised that strike-out under r 171 is confined to matters apparent on the face of the pleading, whereas summary judgment requires the court to evaluate whether any real factual dispute warrants trial. Jackson J characterised r 171 as a mechanism directed to the pleading’s legal sufficiency, and r 293 as a process directed to the case’s evidentiary reality.
The relationship was further analysed in QNI Resources Pty Ltd v Sino Iron Pty Ltd [2016] QSC 62 at [61]–[63], where Jackson J reaffirmed that an application under r 171 may precede or accompany a summary judgment application. His Honour explained:
Where, as here, the problem lies in the ability of the plaintiffs to articulate a case sufficient to go forward because of non-compliance with the rules of pleading, or because of the inadequacy of the pleaded case as a matter of law, it is appropriate for the defendant to apply under either r 171 or in the court’s inherent jurisdiction to strike out the pleading and, in some cases, for a stay or dismissal of the proceeding.
Where a pleading’s inadequacy stems from non-compliance with the rules of pleading or from the pleading’s incapacity to disclose a cause of action, it is appropriate for a defendant to apply under r 171 or the court’s inherent jurisdiction to strike it out and, if necessary, to seek a stay or dismissal of the proceeding.
The court emphasised that r 171 and r 293 overlap conceptually but differ functionally: the former is procedural housekeeping, the latter a substantive disposition of the case.
Procedural Aspects of a Strike Out Application
An application to strike out a pleading under r 171 of the UCPR may be brought by either party at any stage of the proceeding, but timing is critical.
Early applications promote efficiency by narrowing the issues, reducing interlocutory complexity, and avoiding unnecessary costs associated with discovery and trial preparation.
Although the discretion to strike out is available throughout the life of a proceeding, courts are less receptive to late applications unless the defect is fundamental and renders the proceeding untenable.
Delay in bringing an application may itself justify refusal of relief, reflecting the parties’ obligation to conduct litigation expeditiously in accordance with r 5 UCPR.
Rule 171(3) expands the court’s procedural toolkit by permitting the receipt of evidence beyond the face of the pleading, consolidating what was formerly a distinction between strike-out applications and the court’s inherent jurisdiction.
This allows the court to assess context, including conduct and surrounding circumstances, to determine whether a pleading prejudices or delays a fair trial or constitutes an abuse of process.
Significant cost consequences attach to strike-out applications: under r 171(2), the court may order indemnity costs against a party whose pleading is struck out, or against an unsuccessful applicant whose application was unnecessary or tactical.
These cost risks reinforce the need for proportionality, disciplined pleading, and restrained use of strike-out applications, reserving them for clear and genuinely obstructive defects rather than curable or technical shortcomings.
Who Can Apply and When
An application to strike out a pleading under r 171 of the UCPR may be brought by either party at any stage of the proceeding.
The power is not limited to the early phases of litigation; however, strategic timing is critical to efficiency and cost-effectiveness.
Early applications serve to confine the issues in dispute, reduce interlocutory complexity, and prevent unnecessary expenditure on discovery, evidence, and trial preparation.
Rule 171(2) provides that “the court, at any stage of the proceeding, may strike out all or part of the pleading.” This discretion reflects the principle that the integrity of pleadings must be maintained throughout litigation.
A defective pleading left uncorrected impedes the fair and economical resolution of proceedings. Courts have recognised that early intervention can prevent waste of public and private resources, consistent with the overriding purpose of r 5, the just and expeditious resolution of the real issues without undue delay or expense.
Applications made belatedly, after substantial interlocutory or evidentiary steps, are less likely to be entertained unless the defects are so fundamental as to render the proceeding untenable.
Delay in bringing a strike-out application may itself justify refusal of relief, given the requirement for parties to act consistently with the implied undertaking to proceed expeditiously.
Evidence and Affidavits
Rule 171(3) expressly empowers the court to receive evidence beyond the pleading itself when determining a strike-out application:
On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.
This represents a departure from the pre-UCPR position, under which applications to strike out under O 22 r 32 of the Rules of the Supreme Court 1991 (Qld) were confined to defects apparent on the face of the pleading.
The earlier rule prohibited consideration of extrinsic evidence and was contrasted with the court’s inherent jurisdiction, which allowed affidavit material to establish abuse of process.
The current rule consolidates both powers, removing the former procedural distinction. In Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53 at [16], White JA affirmed that the discretion under r 171 extends to pleadings that, by reason of ambiguity or inconsistency, create difficulty for the opposing party and prejudice the fair trial of the proceeding, stating:
.. any pleading which is difficult to follow or objectively ambiguous or creates difficulty for the opposite party insofar as the pleading contains inconsistencies, is liable to strike out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding rather than “embarrass” the opposite party.
The addition of r 171(3) enables the court to assess context, including the conduct of the parties, to determine whether the pleading’s deficiencies justify strike-out.
The practical effect is that evidence may now be received to demonstrate the pleading’s tendency to delay or prejudice a fair trial, or to establish that it forms part of a broader abuse of process.
This aligns with the principle expressed in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, that courts may act summarily only when the defect is clear and incurable.
The expanded evidentiary scope under r 171(3) ensures that this assessment is informed by the procedural context rather than limited to textual deficiencies within the pleading itself.
Costs Implications
Rule 171(2) grants the court discretion to order costs on the indemnity basis against a party whose pleading, or part thereof, is struck out. It says:
(2) 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.
This discretion serves both compensatory and deterrent functions. It compensates the successful applicant for the costs incurred in rectifying the opposing party’s procedural default and deters careless or abusive pleading practices.
Indemnity costs may be ordered where the pleading’s defects are severe, repetitive, or amount to an abuse of process.
The cost consequences differ depending on the outcome of the application. If the application succeeds, the party whose pleading is struck out typically bears the other party’s costs, often on an indemnity basis.
If the application fails, the applicant may be ordered to pay the respondent’s costs on the standard or indemnity basis, particularly where the application was unnecessary, unmeritorious, or tactical rather than substantive.
The courts have recognised the significant financial exposure associated with unsuccessful strike-out applications.
The rule’s cost mechanism ensures that parties consider the proportionality and strength of their applications before invoking the court’s intervention.
A misplaced or premature application can lead to adverse cost orders exceeding the expenses that might have been saved by amendment or negotiation.
The risk is heightened by the indemnity standard, which requires payment of all reasonably incurred costs, not merely those necessary to conduct the litigation.
The principle is consistent with the policy underpinning the UCPR: the just and efficient administration of proceedings without procedural gamesmanship or technical abuse.
Rule 171’s cost sanction reinforces the expectation that parties act with procedural responsibility, drafting pleadings that comply with the rules, and invoking strike-out powers only where the defects are manifest, incurable, and genuinely obstructive to the fair trial of the proceeding.
Drafting Pleadings to Withstand Strike Out Applications
Drafting pleadings to withstand strike-out requires strict compliance with r 149 UCPR by pleading material facts, not evidence.
Material facts are the essential factual elements that establish each component of a cause of action or defence; their omission renders a pleading legally insufficient, while their replacement with evidentiary narrative makes the pleading prolix and prejudicial.
Proper pleading is an iterative exercise: identifying the available causes of action, isolating the facts necessary to sustain each element, and excluding conjecture, argument, and conclusions of law.
This discipline ensures procedural fairness by giving the opposing party clear notice of the case to be met and enables the court to supervise proceedings efficiently under r 171.
Proper particularisation under Part 15 UCPR is integral to this process.
Particulars supplement material facts by defining the specific circumstances relied upon, preventing surprise and enabling effective trial preparation.
Courts consistently strike out pleadings that are vague, inconsistent, over-pleaded, or insufficiently particularised, especially where serious allegations such as fraud are made without precision.
Common errors include conclusory assertions, missing causal links, and internal inconsistency, all of which obscure the issues and prejudice a fair trial.
The governing principle is precision: pleadings must clearly articulate the legal basis of the claim and the material facts supporting it, and nothing more, ensuring that proceedings proceed on coherent, fair, and legally sustainable foundations.
The Role of Material Facts
Rule 149 of the UCPR mandates that pleadings must state all material facts relied on, but not the evidence by which those facts are to be proved. The distinction is fundamental.
Material facts are the essential factual elements that establish each constituent part of a cause of action or defence.
Evidence comprises the proofs that substantiate those facts. A pleading that recites evidence instead of material facts is prolix and vulnerable to strike-out under r 171(1)(b) for its tendency to prejudice or delay a fair trial.
Conversely, a pleading that omits material facts fails to disclose a reasonable cause of action under r 171(1)(a).
Material facts serve a procedural and substantive function.
Procedurally, they ensure the opponent has fair notice of the case to be met, consistent with the objective in r 5 of promoting a just and expeditious resolution of the real issues.
The process of drafting compliant pleadings is iterative. It requires identifying the causes of action available on the known facts and then isolating the specific facts necessary to sustain each element.
A properly constructed pleading discloses how those facts, if proved, would entitle the party to judgment.
The drafting exercise demands precision, restraint, and the exclusion of conjecture. Failure to distil the material facts exposes the pleading to attack under r 171, whether for insufficiency, vagueness, or irrelevance.
The duty of fair notice operates as a corollary to the obligation to plead material facts.
A pleading that obscures the basis of the claim or defence, by omitting critical facts, conflating evidence with assertion, or embedding conclusions of law, denies procedural fairness to the opponent.
The court’s role in supervising pleadings under r 171 ensures that each party is fully informed of the factual and legal case to be answered.
Proper Particularisation
Part 15 of the UCPR prescribes the requirements for particulars.
Particulars supplement the material facts by identifying the specific circumstances, transactions, or acts relied upon, ensuring that the opposing party is not taken by surprise and can prepare an effective response.
Particularisation clarifies the issues and prevents the proceedings from devolving into uncertainty or procedural ambush.
The principle is not one of formality but of fairness: the court must be satisfied that the particulars sufficiently define the controversy to allow efficient trial preparation and adjudication.
The High Court in Goldsmith v Sandilands (2002) 190 ALR 370 at 2 affirmed that pleadings exist “to ensure that each side is aware of the case to be met” and that particulars serve to “define the issues and prevent surprise.” It says:
The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but ‘to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial’.
Similarly, in Sims v Wran [1984] 1 NSWLR 317 at 321, the New South Wales Court of Appeal held that the degree of particularity required depends on the nature of the case and the information reasonably available to the pleader, but the obligation remains absolute: the pleading must enable the other party to identify the material allegations and prepare to meet them. Hunt J held:
The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet.
His Honour immediately expanded on that principle:
The object of particulars is to save expense in preparing to meet a case which may never be put, and to make the party’s case plain so that each side may know what are the issues of fact to be investigated at the hearing.
Particularisation interacts directly with the strike-out power. A pleading lacking sufficient particulars may be struck out under r 171(1)(b) for having a tendency to prejudice or delay a fair trial.
In Robson v Robson [2007] QSC 217, McMurdo J held that a failure to provide particulars may impede the fair conduct of proceedings because the respondent cannot discern the case to be met.
The rule’s application enforces the principle that precision in pleading is a prerequisite for procedural fairness.
Common Pleading Errors Leading to Strike Out
The most frequent errors leading to strike-out fall into three categories: over-pleading, vagueness or inconsistency, and insufficient particularisation of serious allegations such as fraud.
Over-pleading occurs when a party includes evidentiary detail or argument rather than restricting the pleading to material facts. This practice obscures the real issues and invites interlocutory dispute.
In Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53 at [16], White JA observed that a pleading that is difficult to follow, ambiguous, or internally inconsistent “has a tendency to prejudice or delay the fair trial of the proceeding.” Over-pleading introduces precisely that confusion.
Vagueness or inconsistency within a pleading renders it defective because the opposing party cannot determine what is admitted, denied, or required to be answered.
The court in McGuirk v University of New South Wales [2009] NSWSC 1424 held that pleadings which rely on conclusory statements, omit essential factual links, or contradict themselves fail to identify a cause of action and may be struck out. Johnson J held at [33]:
Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading.
The principle aligns with Giffin v Telstra Corp Ltd [2018] QSC 111, where Moynihan J emphasised that a pleading must articulate material facts, not mere assertions or conclusions, to disclose a sustainable cause of action.
Allegations of fraud, dishonesty, or misconduct attract heightened pleading standards. Such allegations must be supported by specific material facts and particularised with precision.
The absence of precise particulars renders them scandalous and liable to strike-out under r 171(1)(c).
Pleadings imputing fraud without detail offend both procedural fairness and the rule of law, as they impose reputational harm without a defined factual foundation.
A final and recurring defect arises from repetitive amendment or the tactical misuse of pleading.
The governing principle is precision. Pleadings that omit material facts, lack particulars, or include irrelevant or evidentiary content invite summary correction under r 171.
Proper drafting demands identification of the legal basis of the claim, articulation of the material facts supporting each element, and exclusion of all matter not necessary for trial.
The rule’s enforcement ensures that proceedings advance only on coherent, relevant, and fair pleadings that define the real issues for determination.
Responding to a Strike Out Application
A party responding to a strike-out application must act with discipline and candour, promptly assessing whether the pleaded defects are defensible or require correction.
Where deficiencies are apparent, conceding them and seeking leave to amend accords with the overriding obligation in r 5 UCPR to conduct proceedings efficiently and without unnecessary cost or delay.
Persisting with a manifestly defective pleading risks adverse findings, including strike-out without leave and indemnity costs under r 171(2).
If the pleading is maintained, the onus lies on the pleader to demonstrate that it discloses a tenable cause of action or defence and that any defects are formal rather than substantive; otherwise, the court may intervene to strike out the pleading or grant summary judgment where no genuine issue for trial exists.
Strategic Considerations
A party served with a strike-out application must approach the process strategically and dispassionately.
The immediate task is to assess the validity of the objections raised. Where the defects in the pleading are apparent or indefensible, conceding those defects and seeking leave to amend is the rational course.
Courts expect candour and efficiency, not obstinacy.
Attempting to defend a manifestly defective pleading wastes judicial resources and risks adverse costs orders, often on an indemnity basis under r 171(2) of the UCPR.
Rule 5 of the UCPR imposes an overriding obligation on all parties to conduct litigation expeditiously and to avoid undue delay or expense.
The rule requires that the court’s procedures be applied to achieve the “just and expeditious resolution of the real issues” and to minimise technicalities.
Compliance with r 5 is a substantive expectation; failure to comply may be treated as a breach of the implied undertaking to proceed efficiently.
Demonstrating a willingness to rectify deficiencies rather than perpetuate procedural disputes reflects adherence to that obligation and preserves the court’s confidence in the party’s conduct.
A respondent who seeks to maintain an impugned pleading must establish that it discloses a tenable cause of action or defence and that the defects are matters of form rather than substance.
The court will not protect a pleading that fails to articulate the essential elements of the claim or that confuses material facts with evidence.
The burden is on the pleader to show that the proceeding involves a genuine controversy warranting trial.
Failure to do so can justify striking out pleadings and particulars without leave to amend or the granting of summary judgment under r 293 UCPR where no real prospect of success exists.
Amending Pleadings
Amendment is the primary corrective mechanism following a strike-out. The courts generally grant leave to re-plead where the pleading’s defect lies in form or expression rather than in the absence of any arguable cause of action.
The discretion to allow amendment reflects the principle of procedural fairness and the judicial preference for determining disputes on their merits.
In Cooper v Hopgood & Ganim [1998] QCA 114, the Supreme Court of Queensland held that a party should ordinarily be permitted to re-plead where the error concerns the formulation of the cause of action and not its existence. Pincus JA held that striking out pleadings and particulars was not justified merely because the pleading was poorly formulated, stating:
That a particular counsel may have great difficulty in fitting facts into a proper legal framework does not necessarily warrant a conclusion that no framework will comfortably accommodate them.
His Honour further explained that the inference that the claim was incapable of rational formulation was not justified:
.. the inference … that the plaintiff’s claim might be incapable of rational formulation … is not justified on the material.
The rationale is that procedural rules should not preclude adjudication of a genuinely arguable claim merely because of poor pleading.
However, the discretion to amend is not unbounded. Repeated amendment, tactical reformulation, or attempts to delay proceedings contravene the philosophy of the UCPR and may result in the refusal of leave.
The interplay between procedural fairness and finality is managed through the court’s discretion.
Fairness requires that a party not be deprived of the opportunity to cure defects, but the fairness is mutual; it also extends to the opposing party’s interest in finality and cost certainty.
Amendments are permitted only where they advance the efficient resolution of the real controversy, not where they perpetuate defective litigation strategy.
Risks of Non-Compliance
Failure to comply with an order striking out pleadings and particulars or granting leave to re-plead exposes a party to immediate procedural consequences.
If the defective pleading is not amended within the timeframe specified by the court, the opposing party may apply for summary judgment or dismissal of the proceeding.
This follows from the principle that once the defective pleading is removed, there remains no material statement of claim or defence on which the proceeding can be maintained.
The risk extends beyond dismissal. A failure to re-plead within the required time may constitute a breach of the implied undertaking under r 5 UCPR to proceed expeditiously. It can result in the imposition of sanctions, including indemnity costs or the dismissal of the action for want of prosecution.
Courts will not tolerate procedural stagnation caused by parties who fail to take corrective action after a strike-out.
In practical terms, compliance requires prompt and disciplined redrafting.
The new pleading must address each deficiency identified by the court or by the strike-out application.
Failure to correct the specific defects risks the re-amended pleading being struck out again, often with escalating costs consequences.
The High Court’s reasoning in Aon Risk Services underscores that procedural delay arising from serial amendment is antithetical to modern case management.
Each iteration of defective pleading compounds prejudice and may justify denial of further amendment or dismissal.
A disciplined response to a strike-out application therefore entails: immediate analysis of the defect; timely preparation of an amended pleading conforming to r 149 UCPR; and strict compliance with any deadline imposed by the court.
These steps mitigate exposure to adverse costs orders, summary judgment, or procedural sanctions and ensure that the party’s case remains within the bounds of procedural integrity mandated by the UCPR.
Practical Tips for Litigators
Precision and procedural discipline in drafting pleadings are essential to avoiding strike-out applications under r 171 of the UCPR.
Courts apply the rule to maintain efficiency, procedural fairness, and clarity of the issues for trial.
The following principles, grounded in the structure of the UCPR and supported by judicial authority, constitute the operative framework for competent litigation practice in Queensland.
Pre-Pleading Review
A disciplined pre-pleading review prevents procedural inefficiency and exposure to interlocutory challenge. Before filing, the pleader must identify:
- The legal cause or causes of action supported by the available material facts.
- The precise material facts necessary to establish each element of those causes.
- The corresponding defences and issues likely to arise; and
- The evidentiary foundation for each factual assertion.
This process mirrors the fundamental obligation in r 149(1)(a)–(b) UCPR to state all material facts relied upon and exclude evidence or argument.
The review must confirm that the pleading identifies the essential facts with clarity, avoids redundancy, and confines itself to the relevant legal framework.
Courts have consistently struck out pleadings that attempt to litigate extraneous grievances, introduce conjecture, or fail to reveal a coherent legal structure.
The pre-pleading analysis also enforces compliance with r 5, which requires parties to conduct proceedings with the objective of just, expeditious, and cost-efficient resolution.
Procedural preparation serves that statutory purpose and ensures that litigation proceeds on a narrow and precise statement of controversy.
Clarity and Brevity
Clarity and brevity are core drafting imperatives. A pleading must be comprehensible on its face, structured logically, and free of unnecessary language or evidentiary narrative.
In Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53 at [16], White JA confirmed that pleadings which are “difficult to follow or objectively ambiguous” have a tendency to prejudice or delay a fair trial and are therefore liable to be struck out under r 171(1)(b).
Excessive length, inconsistency, or argumentative presentation obscures the factual and legal issues, creating procedural inefficiency and unfairness to the opposing party.
Clarity requires a direct statement of material facts.
Brevity requires omission of detail that does not affect the cause of action or defence. Each paragraph must convey a single factual proposition or a related set of facts, avoiding cumulative assertions that obscure the narrative.
Consistent Structure and Numbering
A coherent and numbered structure is mandatory.
Rule 149(3) UCPR requires that each paragraph in a pleading be numbered and deal with a separate matter.
Proper sequencing facilitates comprehension and permits efficient reference during interlocutory and trial stages.
The practice ensures that each allegation can be specifically admitted, denied, or not admitted in accordance with r 166 UCPR, preserving procedural clarity.
Failure to comply with this structure impairs the opposing party’s ability to respond, which in turn constitutes a basis for strike-out under r 171(1)(b).
The function of structure is not aesthetic; it enforces procedural fairness.
In Robson v Robson [2007] QSC 217, McMurdo J held that inadequate particularisation and structural confusion may prejudice the fair trial of a proceeding by preventing a respondent from discerning the case to be met.
Cross-Referencing Allegations and Evidence
While pleadings must not contain evidentiary material, the pleader must ensure that every pleaded fact can be substantiated by admissible evidence.
This requires an internal, pre-filing cross-reference between each material allegation and its evidentiary support, such as documents, witness statements, or admissions.
This verification process ensures that no allegation rests solely on speculation and that the claim or defence can be maintained through proof at trial.
The distinction between material facts and evidence, embedded in r 149(1)(b) UCPR, has been emphasised repeatedly by the courts.
In Coco v Ord Minnett Ltd [2012] QSC 324 at [18]–[19], Jackson J distinguished between pleadings that fail in law because they disclose no reasonable cause of action and those that fail procedurally because they contain prejudicial or unnecessary matter.
The disciplined pleader eliminates evidentiary content from the pleading itself but ensures, through internal documentation, that each factual proposition can be substantiated if challenged.
Procedural Fairness and Efficiency
Every pleading must advance the overriding objective of the UCPR, to secure the just and expeditious resolution of the real issues in dispute.
Procedural fairness is achieved when the pleading defines those issues precisely and gives the opposing party adequate notice of the case to be met.
Efficiency is achieved when the pleading allows the court to manage the proceeding without unnecessary interlocutory disputes or duplication.
The pleader must anticipate the procedural consequences of non-compliance.
Defective pleadings invite strike-out under r 171, adverse costs orders, and delay.
The professional obligation of the litigator is to draft in conformity with the rules, to articulate material facts with exactness, and to maintain procedural integrity consistent with the statutory purpose of the UCPR and the authority of the superior courts of Queensland.
Key Takeaways – Striking out Pleadings and Particulars
Striking out pleadings and particulars under r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) is corrective, not punitive.
It exists to ensure that litigation proceeds efficiently, fairly, and in accordance with procedural discipline.
The purpose of striking out pleadings and particulars is to remove defective pleadings that obscure the real issues or obstruct the fair trial of a proceeding, not to punish the pleader.
As stated in Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53 at [16], a pleading that is “difficult to follow or objectively ambiguous or creates difficulty for the opposite party” tends to prejudice or delay the fair trial of the proceeding and is therefore liable to be struck out.
The focus is procedural clarity and fairness, not retribution.
Rule 171 embodies the court’s supervisory role in ensuring that the parties comply with the obligations of r 5, which requires proceedings to be conducted in a way that is “just, expeditious, and inexpensive.”
The power is discretionary and should be exercised sparingly, as reaffirmed in Royalene Pty Ltd v Registrar of Titles [2007] QSC 59 at [6], where McKenzie J held that the jurisdiction to strike out “should only be exercised in clear cases.”
That restraint reflects the court’s recognition that the primary objective is to facilitate adjudication on the merits rather than to deny it through technical default.
Striking out pleadings and particulars thus functions as a regulatory tool to maintain procedural order and the integrity of the judicial process.
Clarity, fairness, and compliance with the rules of pleading are the defining features of effective litigation.
A properly drafted pleading must identify the material facts, exclude evidentiary detail, and confine itself to matters directly relevant to the cause of action or defence.
Precision in drafting is the most effective means of preventing procedural failure.
Every pleading must be prepared with deliberate attention to rule-based structure, materiality, and clarity.
The practitioner’s objective is not mere compliance but procedural sufficiency, pleadings that disclose a tenable cause of action or defence, permit efficient case management, and ensure fairness to all parties.
Prevention through precision achieves what interlocutory litigation cannot: the avoidance of wasted cost, delay, and uncertainty.
The corrective power of r 171 remains necessary, but its invocation should be exceptional.
The disciplined litigator ensures it is unnecessary.
FAQ with Answers – Striking out Pleadings and Particulars
These FAQs explain how strike-out applications operate in Queensland under r 171 UCPR, including the key grounds, procedural steps, and cost risks.
They also summarise what compliant pleadings require so parties can avoid avoidable interlocutory disputes and keep proceedings focused on the real issues for trial.
What does “striking out pleadings” mean in Queensland?
Striking out pleadings and particulars means the court removes all or part of a pleading under rule 171 of the Uniform Civil Procedure Rules 1999 (Qld) because it is legally insufficient or procedurally defective. It is a corrective power used to ensure litigation proceeds on coherent, fair pleadings that define the real issues for trial and allow the other party to plead properly.
What rule governs strike-out applications in Queensland?
Strike-out applications are governed by rule 171 of the Uniform Civil Procedure Rules 1999 (Qld). Rule 171 empowers the court to strike out all or part of a pleading if it discloses no reasonable cause of action or defence, prejudices or delays a fair trial, is unnecessary or scandalous, is frivolous or vexatious, or is otherwise an abuse of process.
What are the grounds for striking out a pleading under r 171?
The grounds are set out in r 171(1). A pleading may be struck out if it discloses no reasonable cause of action or defence, tends to prejudice or delay the fair trial, is unnecessary or scandalous, is frivolous or vexatious, or is otherwise an abuse of the court’s process. The court applies these grounds sparingly and only in clear cases.
When will a pleading be struck out for disclosing no reasonable cause of action?
A pleading discloses no reasonable cause of action when, even assuming the pleaded facts are true, it cannot establish a legally recognisable claim or defence. This usually occurs where essential elements are missing, material facts are omitted, or causation is not pleaded. The defect is legal sufficiency, not the strength of the evidence.
What does it mean if a pleading prejudices or delays a fair trial?
A pleading prejudices or delays a fair trial when it is confusing, internally inconsistent, ambiguous, or inadequately particularised, making it difficult for the other party to understand and respond. The focus is procedural fairness and efficiency. If the pleading obscures the issues or expands the dispute unnecessarily, it can be struck out under r 171(1)(b).
Can pleadings be struck out for being “unnecessary or scandalous”?
Yes. A pleading can be struck out as unnecessary or scandalous if it includes irrelevant allegations or inflammatory material with no legitimate forensic purpose. Scandalous matter is not about morality; it is about improper content that burdens proceedings, causes prejudice, and distracts from the real issues. Such allegations can undermine fairness and increase cost and delay.
What is a “frivolous or vexatious” pleading?
A frivolous pleading is one so devoid of merit it cannot conceivably succeed. A vexatious pleading is brought for improper purposes such as harassment, annoyance, or oppression rather than genuine vindication of rights. Courts distinguish weak claims from truly frivolous or vexatious proceedings. Strike-out is reserved for clear cases that misuse the court’s process.
What is “abuse of process” for strike-out purposes?
Abuse of process is a broad, residual ground under r 171(1)(e) covering pleadings that misuse court procedures. It includes proceedings brought for improper motives, claims that are duplicative, collateral attacks on prior judgments, or repeated maintenance of defective pleadings undermining orderly litigation. The court intervenes to protect fairness, integrity, and efficiency of the process.
Is the power to strike out pleadings exercised often?
No. Courts are slow to strike out pleadings because it is a severe step that can deny a party its chosen mode of presenting a case. The power is exercised sparingly and only in clear cases, consistent with the “plain and obvious” threshold. Where defects are curable, courts commonly prefer amendment rather than terminating the proceeding.
Who can bring a strike-out application in Queensland?
Either party may apply to strike out a pleading under r 171. The application can be made at any stage of the proceeding. However, timing matters. Early applications can narrow issues and reduce wasted costs, while late applications may be discouraged unless the defects are fundamental and render the proceeding untenable or unfair to continue as pleaded.
When is the best time to apply to strike out a pleading?
The best time is usually early, before substantial steps like disclosure and trial preparation. Early strike-out applications can confine issues, reduce interlocutory complexity, and prevent wasted expense. Courts may be less receptive to late applications after significant litigation steps unless the pleading defect is fundamental, obstructs fairness, or threatens the efficient conduct of the proceeding.
Can the court consider evidence on a strike-out application?
Yes. Rule 171(3) provides that, on the hearing of an application, the court is not limited to receiving evidence about the pleading. This allows the court to consider context, including conduct and surrounding circumstances, when assessing prejudice, delay, or abuse of process. It reflects a broader, consolidated approach to procedural supervision.
What costs orders can be made in a strike-out application?
Under r 171(2), the court may order costs of the application on the indemnity basis. Indemnity costs can compensate the successful party and deter careless or abusive pleading. Cost consequences apply both ways: a successful strike-out may attract indemnity costs against the pleader, while an unmeritorious application may expose the applicant to adverse costs orders.
What is the difference between striking out and summary judgment?
Strike-out under r 171 focuses on pleading sufficiency and procedural clarity, targeting defects apparent from the pleading and its compliance with pleading rules. Summary judgment under r 293 focuses on whether there is no real prospect of success and no need for a trial, allowing the court to consider evidentiary material. They are complementary but functionally distinct mechanisms.
Do strike-out applications usually come before summary judgment?
Often, yes. Strike-out applications commonly precede summary judgment because pleadings must first properly define the issues for determination. A strike-out corrects defective pleadings and may permit re-pleading. If the defect is incurable or the party fails to re-plead after strike-out, the opposing party may then pursue summary judgment because no sustainable case remains.
What are “material facts” and why do they matter in pleadings?
Material facts are the essential factual elements needed to establish each part of a cause of action or defence. Rule 149 requires pleading material facts but not evidence. If material facts are omitted, the pleading may disclose no reasonable cause of action under r 171(1)(a). If evidence is pleaded instead, the pleading may become prolix and prejudicial.
What is proper particularisation and why is it required?
Proper particularisation under Part 15 supplements material facts by identifying the specific circumstances, transactions, or acts relied upon. Particulars prevent surprise and allow the other party to prepare an effective response. Without adequate particulars, a pleading may prejudice or delay a fair trial and be struck out under r 171(1)(b) because the opposing party cannot identify the case to meet.
What common drafting errors make pleadings vulnerable to strike-out?
Common errors include over-pleading evidence or argument, vague or inconsistent allegations, conclusory statements without factual links, missing causation, and insufficient particulars. Serious allegations such as fraud require heightened precision and clear particulars. These defects can obscure the issues, increase cost and delay, and breach the obligation to provide fair notice of the case to be met.
How should you respond if served with a strike-out application?
You should promptly assess whether the objections are valid and whether the defects are curable. If deficiencies are apparent, conceding them and seeking leave to amend is often the most efficient course, consistent with r 5. Defending a manifestly defective pleading risks strike-out without leave, indemnity costs under r 171(2), and potential summary judgment.
Will the court usually allow an amendment after striking out a pleading?
Often, yes. Courts generally allow re-pleading where the error concerns formulation or expression rather than the absence of any arguable cause of action. Amendment is the primary corrective mechanism. However, the discretion is not unlimited. Repeated amendments, tactical reformulation, or delay may lead to refusal of further leave, consistent with modern case management principles.
