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What Is a Strike out Application?

There are numerous instances where a case or pleading can be dismissed by the Court. In this article we’ll explain the grounds on which a pleading can be struck out and what this means for your case.

The Court may ‘strike out’ (dismiss) a pleading if it does not align with civil procedure laws. Although each Australian State and Territory has different legislation concerning Court procedures, the grounds on which pleadings can be struck out are generally the same.

Any business or individual should ensure they have a valid claim by consulting with a lawyer before commencing Court proceedings. If you file pleadings which do not comply with the rules, your opponent can apply to strike out your application.

Table of Contents

What is a pleading?

A pleading reflects the claim brought against the defendant (the accused), as evidenced by a document outlining relevant facts. It can be brought against the defendant by way of a Statement of Claim. It is important to understand the pleading reflects the allegation at large, rather than delve into the specifics of the accusation. For example, Bill may accuse Bob of a breach of fiduciary duties (the pleading). The particulars will outline the specific details as to why Bob had breached his fiduciary duties.

Strike out applications

In New South Wales, the Court can grant a strike out application on the following grounds:

1. There is no reasonable cause of action

Even if a pleading contains true facts which can be proved, it can be struck out if the facts do not establish a valid claim or defence.

2. It may be prejudicial or cause embarrassment or delay

If allegations made in a pleading are unnecessary, irrelevant or likely to cause embarrassment it can be struck out.

3. It’s an abuse of the Court process

Abuse of process can covers a broad range of circumstances. Some of these include:

  • Where multiple proceedings have been commenced in different Courts for the same claim
  • Bringing up issues which have previously been resolved by the Courts
  • Destroying or tampering with evidence
  • If cost and time are disproportionate to the claim being made

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What distinguishes a strike out application?

Normally, a Court will strike out a pleading (either entirely or partially) and not the proceeding itself. A strike out application dismisses a pleading on the basis of the form of the pleading. This refers to the structure of the pleading. For example, the Court may look to whether the pleading adequately discloses a valid cause of action.

If successful, the respondent may file an amended pleading if the court gives permission (‘granting leave’). The Court may also dismiss proceedings entirely, specifically where the applicant does not have a valid cause of action and the case is unlikely to succeed.

Key Takeaways

Whether you are a self-represented litigant or even a business, it’s important to understand what you need to file an admissible claim. Further, you should always speak to a lawyer before commencing litigation.

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