Strike Out: Defective Claims and Defences

What a Strike-Out Application Decides

Strike-out relief concerns the pleaded case and the ground raised against it. It does not determine liability after a trial of disputed evidence. This guide uses Federal Court proceedings and NSW civil proceedings governed by the Uniform Civil Procedure Rules (UCPR).

Federal Court rule 16.21 permits all or part of a pleading to be struck out. Its grounds include scandalous or frivolous material, evasiveness, ambiguity, prejudice or delay, failure to disclose a reasonable case and abuse of process.

NSW UCPR 14.28 addresses a pleading that discloses no reasonable case or tends to cause prejudice, embarrassment or delay. Abuse of process is a separate ground. The Judicial Commission’s strike-out guidance distinguishes this from summary disposal and explains the limited use of evidence on a pleading challenge.

An application for summary judgment follows a separate merits test and requires material suited to that test. A complaint about abuse of process also needs its own legal basis and appropriate relief. Neither label follows simply because a pleading is difficult to answer.

Identify the Defect and the Requested Relief

Prepare a paragraph-by-paragraph objection that connects the alleged defect to the selected rule and proposed order. Avoid describing the whole claim as defective when only one allegation needs correction.

Use a working schedule with these fields:

• The pleading version and exact paragraph or words challenged.
• The rule and ground relied on.
• The missing fact, ambiguity or irrelevant allegation.
• How that defect prevents a proper response or legally sufficient case.
• The proposed correction and the order sought if it is refused.

Missing material facts concern the facts needed to establish the claim or defence. An embarrassing pleading leaves the opposing party unable to understand or answer the case. A legally untenable pleading raises a different objection: even accepting its alleged facts, the asserted legal result does not follow.

For the Federal Court, rules 16.02 and 16.41 separate material facts from proof and explain why particulars cannot supply missing material facts. If the allegation exists but a transaction needs identifying detail, consider further particulars. Asking which payment is alleged is different from demanding every witness or document that will prove it.

Use a Financial Pleading Example

Consider this fictional contractual claim. A company alleges that its payment administrator diverted $84,000 and caused the company loss. Paragraph 12 says only, “The defendants diverted company payments without authority.” Two defendants are named, but the paragraph identifies neither person’s conduct.

On those assumed facts, the objection needs more than the observation that statements have not been attached. Identify the defendant who allegedly instructed the transfers and the contractual duty relied on. Then identify the instruction said to breach that duty and how it caused the claimed loss.

A proposed amendment could allege that the first defendant administered supplier payments under a specified contractual term. It could identify the instruction to pay $84,000 to a nominated account, the absence of required approval and the resulting loss. Any case against the second defendant needs its own factual basis. These are illustrative allegations to test against instructions, not findings about an actual transaction.

Compare the two objections:

Objection	What the objection concerns	Focused response
Neither defendant’s act is identified	Missing material facts about responsibility	Plead the conduct attributed to each defendant
The payment is identified but its reference is unclear	Detail needed to identify the allegation	Supply the appropriate particular
The bank statement proving the payment is absent from the pleading	Supporting evidence	Keep proof in the evidence process applicable to the proceeding
The alleged facts cannot establish the duty relied on	Legal sufficiency	Address the asserted duty and legal basis before settling the relief

If a supported amendment cures paragraph 12, explain why deleting that paragraph with leave to replead is sufficient. Seeking dismissal of every claim requires a basis for that wider result. A separate, properly pleaded debt claim must be accounted for in the proposed orders.

Keep the payment schedule available when taking factual instructions. Record the source statement and page beside each transfer, then separate the observed payment from the allegation about who authorised it. Disputed bank material does not replace analysis of the pleading ground.

For a large statement bundle, FinTrace saves hours of conversion and review by providing a searchable ledger and findings report. Each finding cites its source PDF filename and page, so the solicitor has the supporting transactions at hand when settling instructions for the pleading.

Prepare the Application or the Proposed Cure

Prepare the application around the identified pleading ground, with a usable proposed amendment where a cure is available. The court and list determine the filing procedure and hearing directions.

Federal Court

1. Identify rule 16.21’s ground and the paragraphs affected. Check the docket judge’s directions and relevant practice notes.
2. Confer about the objection and proposed cure. The Central Practice Note expects good-faith conferral before an interlocutory dispute is listed, to avoid intervention and narrow the issues.
3. Settle the specific orders in Form 35. Rule 17.01 requires an interlocutory application and an affidavit where appropriate. Rule 17.02 provides a separate procedure for undisputed documents.
4. File and serve the application and supporting material within the applicable rules and directions. Prepare submissions connecting each objection to the order sought.

NSW Civil Proceedings

Write to the opposing solicitor identifying the objection and inviting amendment before seeking relief under rule 14.28. The Judicial Commission identifies that correspondence and the response as relevant to costs.

Use the official NSW UCPR forms: Form 20 for the notice of motion and Form 40 for any supporting affidavit. Set out the precise orders sought. Apply Part 18 and the court’s list directions to filing, service and the hearing. Rule 14.28 permits evidence, but a contested transaction history must serve the pleading ground being advanced.

Responding to the Application

A respondent can oppose the identified ground, put forward a proposed amended pleading or seek directions that allow a focused correction. Answer each objection separately. If amendment is proposed, show what changes and how it cures the identified problem.

Address timing and prejudice with concrete facts. Explain any delay, identify additional work caused by the amendment and show whether a hearing must move. Make a specific costs submission about the application and wasted work.

In Aon Risk Services v Australian National University, the High Court considered a late amendment under ACT procedural rules. Its discussion of case management explains why an arguable amendment and an offer to pay costs do not settle the decision. The extent of delay and prejudice matter. That amendment analysis does not supply a substitute strike-out or summary-judgment test.

Read the Order Before Treating the Case as Over

Read the entered order to identify what it removes and what remains to be done. Striking out a paragraph, allowing a replacement pleading and dismissing proceedings have different consequences.

A paragraph-only order leaves the surviving pleading to be addressed. Strike-out with leave to amend keeps a route to a corrected case open. Dismissal concerns the proceeding or claim specified in the order. Directions for particulars or amendment can resolve a defect without deleting the entire case.

Record the amendment period, service requirements and any consequential pleading directions. In the Federal Court, rule 16.58 limits the life of amendment permission, while rule 16.60 addresses service of the revised pleading. Read those rules alongside the actual order.

When a replacement arrives, compare it with the permitted amendment and the original objections. Identify any remaining defect before choosing the next response. If amendment is unavailable or the permitted period expires, establish the order’s stated consequence and the next procedural step. Check surviving claims, the next hearing and costs before telling the client the dispute has ended.