Carrigan v Hill

The issue arising here was whether it was permissible for the defendants to have certain paragraphs of a narrative-style pleading struck out on an application made without leave notwithstanding they were yet to file a notice of intention to defend. Noting the specification in r 171(2) Uniform Civil Procedure Rules 1999, Martin SJA held that the strike-out application was able to be brought in those circumstances, and that it “would seem to be contrary to the philosophy of r 5 for a defendant to be required to file a defence which, for example, simply asserted a general incapability of pleading a defence because of the inadequacy of the statement of claim”.

Martin SJA

5 March 2025

Briefly, the statement of claim, which was drafted in the narrative style, consisted of 196 paragraphs, three annexures and 16 claims for declarations, equitable compensation, injunctions and appointment of a receiver. [8]. Whilst paragraphs 181, 182, 185, 189 and 190 of the statement of claim purported to rely upon the matters pleaded in the previous 30 pages to support each pleaded conclusion, those paragraphs failed to otherwise identify any material facts relied upon. Accordingly, the defendants sought to have the relevant paragraphs struck out on the basis that they did not clearly state the case which needed to be met. [9].

Did the defendants require leave to bring the application?

The plaintiffs argued that given the defendants had not filed a notice of intention to defend, r 135 precluded them from taking a step in the proceeding without the court’s leave. [4]. His Honour did not agree, stating that since a proceeding commences at the time the originating process is issued by the court, consequently a strike-out application is able to be brought prior to the filing of a notice of intention to defend. He noted that that approach is consistent with r 5(2) which requires that the rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality, commenting:

“[t]hat objective can be satisfied if a strike-out application is brought with, at least, the purpose of having a properly pleaded statement of claim. It would seem to be contrary to the philosophy of r 5 for a defendant to be required to file a defence which, for example, simply asserted a general incapability of pleading a defence because of the inadequacy of the statement of claim. That would lead to unnecessary expense. On that basis, leave is not needed”. [6].

His Honour added that even if his conclusion about leave was incorrect, in any event he would have granted leave since it was apparent that the plaintiffs were aware of the application and the defendants’ address for service, and that the defendants had legal representation: see Markan v Queensland Police Service [2015] QCA 22. [7].

The adequacy of the pleading

In terms of the quality of the statement of claim, in his Honour’s assessment the impugned paragraphs did not comply with the rules of pleading and it was inadequate. He noted the following with reference to the authorities (citations omitted):

(a)case management techniques and the pre-trial directions mean that the court should only intervene in pleading disputes in matters where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial; [28]; that was the case in the current matter; [28];

(b)regardless of the “style” of pleading it must comply with the mandated rules; [29]; 

(c)a pleading is required to identify the issues, disclose an arguable claim or defence, and inform the parties of the case to be met. To that end it must be clear, complete and concise. It is imperative that the pleading is not overcomplicated by unnecessary particulars and evidence; [29]; 

(d)it is unacceptable to plead a range of factual matters, leaving the other parties with the task of guessing which are relied upon to support the pleaded inference, and for the court ultimately to “reach the correct decision”, regardless of the parties’ arguments: it is the responsibility of the party making the allegations to identify the case which it seeks to make and to perform that task clearly and distinctly. [32].

His Honour ultimately concluded, the defendants should not be put in a position where they have to “separate the wheat from the chaff”, “engage in a treasure hunt”, or “consider every possible permutation or combination of allegations”, in order to ascertain the case against them. [31], [33].

Disposition

The deficient paragraphs of the pleading were struck out and the plaintiffs were given leave to replead. The plaintiffs were also ordered to pay the defendants’ costs of the application. [34]–[36].

A Jarro