If a defendant does not file a notice of intention to defend after being served with a Queensland claim, the plaintiff may seek default judgment once the response time expires. If a pleading is filed but discloses no reasonable cause of action or defence, the opponent may ask the court to strike out all or part of it. Neither outcome happens simply because the other party says the pleading is weak. Uniform Civil Procedure Rules 1999 (Qld), rr 137–139, 171 and 281–290.
These are different problems. A missed deadline can sometimes be repaired by filing before judgment; a legally deficient pleading usually calls for amendment or a contested application. The court may instead permit the case to continue, impose conditions or, where the governing test is met, give summary judgment.
Which pleading was due, and when?
In an ordinary proceeding started by claim, the defendant must file a notice of intention to defend within 28 days after service. The defence must be attached to that notice, and a sealed copy served on the plaintiff on filing or as soon as practicable. An interstate service regime can set a different response period. Proceedings begun by application have different procedures, although pleadings can be ordered. UCPR rr 134, 137, 139, 141–142 and 145. The practical starting point is to read the issued claim, proof of service and any directions, then calculate the actual deadline.
An answer to counterclaim is generally due 14 days after service, or 28 days if the counterclaim defendant was not already a party. A reply, if used, is generally due 14 days after service of the defence or answer to counterclaim; the court can order otherwise. UCPR r 164. A missing reply is not the same as an unanswered claim: allegations in the final pleading are treated as not admitted under r 168. Earlier unanswered factual allegations may be taken as admitted under r 166, subject to its exception for a person under a legal incapacity. A party should not assume that silence always admits every allegation.
If the defendant has not filed a notice and defence
Once the applicable time expires, rr 281–282 allow the plaintiff to pursue default judgment, but service of the claim must be proved. For a debt or liquidated demand, r 283 permits a request for judgment within its limits; unliquidated damages and other relief follow different routes under rr 284–288. Default does not itself establish an unlimited entitlement to every remedy sought. The plaintiff must choose the correct procedure and establish the amount or relief required by that rule. Stonegate Legal’s guide to default judgment where no defence has been filed deals with those routes in detail.
A defendant may file and serve a late notice before judgment despite missing the ordinary deadline: r 138. It must ordinarily have a defence attached under r 139. Filing after judgment is a different exercise. Under r 290, the court may set aside or amend a default judgment and enforcement on terms, including costs or security. Promptly investigate service, the reason for default and the proposed defence; obtain evidence rather than merely asserting that the claim is disputed. See Stonegate Legal’s guide to setting aside a default judgment.
Example (hypothetical): A company receives a properly served claim for an unpaid invoice. It misses the 28-day date but files and serves a notice with a properly pleaded defence before judgment is entered. The plaintiff should check the court record before requesting default judgment; the late filing changes the route, even though the company may face costs arising from its delay.
If a filed pleading discloses no reasonable case
A pleading must state the material facts relied upon, rather than the evidence proving them. UCPR r 149. A bare assertion that the other side “breached the contract”, without facts identifying the relevant obligation and breach, may leave an essential element unpleaded. The question is whether the pleaded material facts support a legally recognisable claim or defence, not whether the party will ultimately prove them. Stonegate Legal’s guide to pleadings and particulars explains the drafting requirements.
Under r 171(1)–(3), the court may strike out all or part of a pleading at any stage if it discloses no reasonable cause of action or defence, tends to prejudice or delay a fair trial, is unnecessary or scandalous, is frivolous or vexatious, or is otherwise an abuse of process. The court can receive evidence beyond the pleading on the application. It may order the application’s costs on an indemnity basis; that costs order is discretionary, not automatic. A request for particulars under r 161(3) does not extend the time to plead.
In Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) & Ors [2017] QSC 75, [13]–[18] and orders 1–2, Bond J considered competing challenges to parts of a statement of claim and counterclaim in a commercial dispute involving alleged loss from a proposed sale of a financial planning client book. The Supreme Court struck out specified paragraphs on each side with leave to replead, but dismissed the balance of the applications. The judgment emphasised caution before terminating a genuinely arguable case summarily, while recognising that a defective pleading can be struck out. It illustrates why an order removing paragraphs may allow a corrected case rather than finally deciding the dispute.
Example (hypothetical): A supplier sues a director personally for a company debt, pleading only that the company failed to pay. The director’s title alone does not plead a personal promise or another legal basis for personal liability. The supplier may need to identify and plead such a basis if it exists. An application to strike out the personal claim may succeed; whether amendment should be allowed depends on the proposed facts and procedural history.
Strike-out, amendment or summary judgment?
A party confronted with a defective pleading should identify the missing element and ask whether material facts can honestly be pleaded to cure it. A focused proposed amendment may resolve the issue with less cost. Amendment remains subject to the UCPR amendment regime, including rr 377–379 and any existing orders. The opposing party may seek strike-out under r 171, often identifying the paragraphs challenged and why they cannot stand. Stonegate Legal’s guide to striking out pleadings and particulars addresses the application in greater depth.
If the issue reaches beyond drafting and the evidence shows that trial is unnecessary, summary judgment may be available. After a notice of intention to defend has been filed, r 292 allows a plaintiff to apply where the defendant has no real prospect of successfully defending all or part of the claim and there is no need for trial. Rule 293 gives a defendant the corresponding route where the plaintiff has no real prospect of success. Those are distinct tests from identifying a defect in a pleading; disputed material facts may require trial. An application and supporting evidence must be served in accordance with the applicable rules and directions.
The sequence matters. If no notice has been filed and time has expired, investigate default and service first. If a defence is on file, assess what it actually pleads before choosing strike-out, particulars, amendment or summary judgment. If a plaintiff has failed to take a required step or obey a timed order, r 280 permits the defendant to apply to dismiss for want of prosecution; the court may dismiss or make another appropriate order. The lapse alone does not automatically end the claim.
What should you do now?
Obtain the filed pleadings, sealed claim, service material and orders. Record the deadline and check the registry record for any judgment or late filing. If you are the defaulting party, file the required response promptly if judgment has not been entered, or prepare an evidence-backed application under r 290 if it has. If the problem is the substance of a pleading, map each cause of action or defence to its material facts, propose a sustainable amendment where possible, and assess the costs and settlement implications before applying to strike out or for summary judgment. A judgment is an enforceable outcome; a strike-out order with leave to replead may only reset the contest.
