UCPR 171 – strike out and pleadings

Callide Power Management P/L & Ors v Callide Coalfields (Sales) P/L & Ors; CS Energy Ltd v Callide Coalfields (Sales) P/L & Ors [2014] QSC 205

 

Jackson J

UCPR 171

[17] There are different ways in which a party may challenge a question raised by their opponent’s pleading. Where the object of the challenge is to strike out part of a defence, on the ground that it is unnecessary or has a tendency to prejudice or delay the fair trial of a proceeding, provision is made for application to strike out part of the pleading under UCPR r 171 which provides as follows:

171 Striking out pleadings

(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.”

[18] Rule 171 operates in the context of r 5, as to the purpose of the UCPR, including the direction to apply the rules with the objective of avoiding undue delay and expense and technicality, and UCPR r 367, as to the power to make an appropriate order or direction, even though it may be inconsistent with another provision of the rules.

[19] The point of both applications in the present case is that the challenged parts of the relevant paragraphs raise matters, purportedly in defence, which are unnecessary, because they do not operate in defence of the buyer’s claim. Having set out an example of how the argument arises, it is appropriate to identify the relevant principles of pleading with some precision.

[20] Under the UCPR, a proceeding started by claim proceeds upon pleadings identified as the statement of claim, defence and reply in accordance with specific rules.[3] It is trite that the conceptual model for the present rules is that derived from the Judicature Act 1876 (Qld). By s 16 of that Act, the rules of court in the schedule to that Act (“the Judicature Act Rules”) came into force on its commencement. Order XIX of those rules was based on the Rules of the Supreme Court which had come into effect in England with the passage of the Judicature Act 1875 (UK). A central concept in the system of pleading introduced by those reforms remains in UCPR r 149, that each pleading must “contain a statement of all the material facts on which the party relies but not the evidence by which the facts to be proved” and “be as brief as the nature of the case permits”.

[21] The common law system of pleading which preceded the Judicature Act was in many respects abolished by the rules made under it. However, in other respects, the concept or model of pleading at common law, as affected by statute up until that time, informed the system of pleading under the Judicature Act and still does so today.

[22] Thus, at common law, a defendant faced with a declaration (as the pleading corresponding to a statement of claim was known before the Judicature Act) might respond by a plea in bar of the action by way of traverse.[4] A traverse was a denial or non-admission of the relevant fact or facts alleged in the declaration. Alternatively, the defendant might confess and avoid the fact or facts alleged in the declaration. If the defendant confessed and avoided, the plaintiff was called upon by its replication to either traverse or, in turn, confess and avoid the defendant’s plea. There might thus be further pleadings in response to further confession and avoidance. However, once there was a traverse, the parties joined the issue thereby created, which was tendered as the issue for trial.

[23] However, there was an alternative response that might be made by the defendant in response to the declaration, or the plaintiff in replication to a plea in confession and avoidance, called a joinder in demurrer.[5] There was more than one form of demurrer. One of them was a special demurrer. By that proceeding, a party could challenge the matter alleged to be irrelevant in the opponent’s prior pleading, as where “the traverse … in the opinion of the plaintiff, could be so framed as to involve a part immaterial or insufficient to decide the action”.[6]

[24] This was consistent with the rule of pleading which existed then, that “surplusage was to be avoided, ‘including unnecessary matter of whatever description’”.[7]

[25] With the advent of the Judicature Act in England, and the forms of pleading provided for by the rules made under it, the demurrer was initially retained (Order XXVIII r 1). As well, express provision was made in those rules for the court to strike out any matter in a pleading which was scandalous, or which may tend to prejudice, embarrass or delay the fair trial of the action (Order XXXVII r 1). In part, that rule is a progenitor to UCPR r 171. The court also retained an inherent jurisdiction to strike out in relation to proceedings involving an abuse of process.[8] However, in England, the Rules of the Supreme Court 1883 abolished the demurrer and replaced it with proceedings in lieu of demurrer, to decide a point of law raised in a pleading (Order XXV, rr 2 and 3) or to strike out a pleading on the ground that it did not disclose a reasonable cause of action or defence (Order XXV, r 4).

[26] As it happened, the adoption of the Judicature Act system of pleading in Queensland did not follow exactly the same model. That is because the demurrer was not abolished in this State until 1999 by the repeal of the Rules of the Supreme Court 1900 (Qld), upon the introduction of the UCPR. Before then, there was some change to the process of demurrer effected by the Common Law Pleading Act 1867 (Qld), ss 14, 15, 16 and 17. Section 15 confined objections which could formerly be taken only by special demurrer. Section 17, perhaps partly in lieu thereof,[9] empowered the court to strike out or amend a pleading so framed as to prejudice embarrass or delay the fair trial of the action. That section too is, in part, a progenitor to UCPR 171. But even after the introduction of the Judicature Act 1876 (Qld), demurrers were retained in this State in a way which permitted a plaintiff to demur to part of a pleading of the defendant, on the ground that the facts alleged therein did not show a distinct ground of defence – see the Judicature Act Rules, Order XXXVIII, r 1 and, later, the Rules of the Supreme Court 1900, Order 29, rr 1 and 2. The ongoing utility of demurrers was affected by a number of matters which need not be discussed.

[27] Returning to the English practice, when demurrers were abolished, the courts quickly confirmed that unnecessary matters in a pleading should be struck out under the progenitors of UCPR r 171. So, for example, in Knowles v Roberts,[10] irrelevant and unnecessary allegations in a statement of claim were struck out as tending to embarrass the defendant in his defence, because they would tender further issues that did not need to be tried for the determination of judge or jury. The question raised by the statement of claim in that case was whether the plaintiff was entitled to certain rights, on the proper construction of an agreement made in settlement of an earlier action. The plaintiff sought to plead that its claim in the earlier action was a good one, as a matter which would go to the proper construction on the settlement agreement. The Court of Appeal held that the factual allegations going to the plaintiff’s original rights were irrelevant to the proper construction of the agreement and therefore should be struck out of the statement of claim.

[28] Similarly, in Rassam v Budge,[11] a defendant did not simply traverse the plaintiff’s allegation that he had spoken and published alleged defamatory matter, but pleaded that he had in fact said something else which was not defamatory. The Court of Appeal struck out the defendant’s allegation of what he had said, and that it was not defamatory, on the ground that it was embarrassing and that it did not raise an issue as to whether the words alleged in the statement of claim were written or spoken and published, or whether those words were true, or whether the publication was privileged.

[29] In a similar fashion, in A v Ipec Australia Ltd & Anor,[12] another defamation action, it was held that “if … surplusage is set forth in such a way that the [party] must plead to it and thus raise a false issue at the trial, the court will strike it out …”.[13]

[30] Consistently with those decisions, Cairns, Australian Civil Procedure,[14] says “a pleading that pleads irrelevant matter, or that raises false issues, can be struck out as being prejudicial, embarrassing or delaying”.

[31] UCPR r 150(4) provides that in a defence a party must specifically plead a matter that “the party alleges makes a claim of the opposite party not maintainable” or “raises a question of fact not arising out of a previous pleading” or “if not specifically pleaded might take the opposite party by surprise”. However, that sub-rule, in my view, does not authorise the pleading of a fact or matter which is unnecessary or surplusage, in the sense described above.

[32] In a similar vein, UCPR r 166(4) provides that an allegation of fact made by a party in a pleading is taken to be admitted by an opposite party unless the allegation is denied or stated to be not admitted, and also requires that a party’s denial or non-admission of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or cannot be admitted. The purpose of the sub-rule is to make a defendant disclose the explanation or ground for a denial and in that way avoid surprise. There is no doubt that the requirement of the sub-rule, attended by the consequence that a non-compliant party is taken to have admitted the allegation, has changed the content of pleadings in this State in a significant way. Nevertheless, the sub-rule does not justify the positive pleading by a party of a fact or matter which is unnecessary or surplusage, in the sense described above. The requirement is that there be a direct explanation for the belief that “the allegation is untrue or cannot be admitted”, which ties the explanation back to the allegation which is being denied or not admitted. It does not justify the pleading of facts which would not operate under the common law model either as a traverse (by denial or non-admission) or as a plea in confession and avoidance (admission and allegation of other facts which would defeat the plaintiff’s claim for relief).[15]

 

 

David Cormack – Brisbane Barrister & Mediator

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