Strike out considerations – echoes from an appeal

To summarily to dispose of the proceedings is one which calls for the exercise of “exceptional caution”. [1]

The power cannot be exercised “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it.” [2]

It is only to be exercised “when the action is clearly without foundation and … to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff”. [3]

The “Court is not concluded by the manner in which the litigant formulates his case in his pleadings.” [4]

The fatal defects in the plaintiff’s case must be very clear before the Court will intervene to strike out a pleading. [5]

A “high degree of certainty” that the plaintiff’s case will fail if it goes to trial is required. [6]

References

1.General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 (at 129) per Barwick CJ.

2. Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (at 91) per Dixon J.

3. Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 (at 720) per Dixon J.

4. Ibid.

5. Shaw v State of New South Wales [2012] NSWCA 102 (at [30]ff) per Barrett JA (Beazley, McColl, Macfarlan JJA and McClellan CJ at CL agreeing); Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 (at 944 – 945) per Cross J.

6. Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 (at [57]) per Gaudron, McHugh, Gummow and Hayne JJ.

Taken from [6] of Perera v Genworth Financial Mortgage Insurance Pty Limited [2016] NSWCA 53 (Slattery J)