It is well-accepted that the power to strike out a pleading is to be exercised with caution. However, that will not stop a court from striking out a pleading if it is appropriate to do so, even were no defence has yet been filed. In Rose v Secretary of the Department of Heath and Aged Care [2025] FCA 339, Katzmann J struck out the applicants’ third further amended statement of claim without leave to replead in a class action brought against the Commonwealth and four officers related to the approval of certain COVID-19 vaccines. The decision serves as a timely reminder of the principles to keep in mind when drafting pleadings.
The relevant principles were set out in paragraphs 34 to 59 of the judgment and include the following:
- The function of a pleading is to state, with sufficient clarity, the case that a party must meet thereby rendering procedural fairness, as well as defining the issues for decision: Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286 cited with approval in Fuller v Toms [2012] FCAFC 155 at [17].
- The key features of pleadings include the following matters. First, a pleading must be as brief as the nature of the case permits: r 16.02(1)(b) of the Federal Court Rules 2011 (Cth). Second, it must identify the issues the party wants the Court to resolve: r 16.02(1)(c). Third, it must state the material facts on which the party relies that are necessary to give the opposite party fair notice of the case against it but not the evidence by which the material facts are to be proved: r 16.02(d). Fourth, it must state the provisions of any statute relied on: r 16.02(e). In addition, a pleading must not ask for relief that is not claimed in the originating application: r 16.02(4).
- Not all relevant facts are “material facts”. A fact is material if it is essential to prove that fact in order to make out the cause of action or put another way, it is an element of the cause of action.
- Where serious allegations of dishonesty, fraud or acting with malice or bad faith are made, the allegations must be pleaded “specifically and with particularity”: Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 at [56]. A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it and the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it not made out: r 64 of the 2011 Barristers’ Rules (Qld).
- A pleading must not: (i) contain any scandalous material; (ii) contain any frivolous or vexatious material; (iii) be evasive or ambiguous; (iv) be likely to cause prejudice embarrassment or delay in the proceeding; (v) fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or (vi) otherwise be an abuse of process of the Court: r 16.02(2). These categories overlap. A pleading is “likely to cause prejudice, embarrassment or delay” where it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him” (Meckiff v Simpson [1968] VR 62 at 70); if it merely asserts a conclusion to be drawn from facts which are not stated (Trade Practices Commission v David Jones (Australia) Pty Ltd(1985) 7 FCR 109 at 114–115); if it contains inconsistent or irrelevant allegations or alternatives that are “confusingly intermixed” (Shelton v National Roads and Motorists’ Association Ltd [2004] FCA 1393; 51 ACSR 278 at [18]).
- A party cannot be expected to respond to mere context, commentary, “history, narrative material or material of a general evidentiary nature”: Fuller v Toms [2012] FCAFC 155 at [83].
In respect of the pleading before her Honour, Katzmann J said:
Should the third further amended statement of claim be struck out?
[61] The answer to this question is an empathic yes. This is a clear and obvious case.
[62] It is true, as the applicants submitted, that this is a complex case. But the 3FASOC makes it impossibly complex, so much so that it defies the fundamental principles of pleading. It is not only likely to cause prejudice, embarrassment and delay, it is inevitable that it will have those results. Large parts of it are incoherent, unintelligible, ambiguous, impenetrable and/or expressed at a high level of generality. In critical aspects it lacks precision. It suffers from both narrative prolixity and the inclusion of irrelevant detail such that it is not a pleading to which the respondents can reasonably expect to plead. In argument at the hearing senior counsel for the applicants candidly and accurately described it as “tortuous”. He expressed “trepidation” at the “[un]pleasant exercise” of taking the Court to it. It is a pleading of the kind described by Perram J in Stewart v Deputy Commissioner of Taxation [2010] FCA 402; 76 ATR 66; 367 ALR 637 at [33]:
[It] is filled with irrelevancies and allegations which reveal the absence either of comprehension or application or both. The task of identifying what, if any, case the applicants have has been very much hampered by the pleadings put forward on their behalf, which is, of course, precisely the opposite effect which pleadings are intended to achieve see: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517 per Isaacs and Rich JJ; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J; Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 at [148] per Black CJ, French and Tamberlin JJ. Anyone who seeks to wrestle with the mysteries of the proposed further amended statement of claim will see that it is more akin to a Chinese puzzle box than a succinct statement of the applicants’ cases.
[63] To allow the case to proceed on the present pleading or anything like it would not be the way that best promotes the overarching purpose of the civil practice and procedure provisions – far from it. Rather, to refrain from striking out the pleading would be to act in defiance of that purpose.
…
[66] The 3FASOC is replete with recitations of immaterial facts; untethered, acontextual references to legislation; and a morass of infuriating cross-referencing which makes the critical allegations nigh impossible to decipher. Reading it is a herculean task. Trying to make sense of it could drive the reader mad. Identifying the material facts is like looking for a needle in a haystack. It would be oppressive to require the respondents to plead to it. If it were permitted to stand, it would likely severely delay a fair trial and prejudice the respondents in attempting to mount a defence: see Fuller v Toms at [18].
[67] It beggars belief how some of the allegations could be made, such as the allegations about the state of knowledge of “the public officers and the Australian public” (in para 69). Some of the allegations are tendentious.
[68] The schedules are confusing and, in some instances, misleading. Some of them have no place in a pleading and merely serve to contribute to the prolixity of the document.
[69] Frequently, rolled-up allegations are made in a single paragraph.
[70] Frequently, too, allegations are pleaded in a cascading series of alternatives apparently seeking to cover every conceivable way a respondent might or might not have engaged in certain conduct….
The decision is accessible here.
