Tresize v National Australia Bank Ltd [2006] FCA 150

Tresize v National Australia Bank Ltd [2006] FCA 150

Because the substantive paragraphs and prayer for relief of the amended statement of claim had previously been struck out, the remaining pleading was meaningless. The Applicants had been given generous time to replead, had failed to file a further amended statement of claim or evidence explaining the failure, and had not produced a proposed pleading that would allow the Court to assess whether leave would serve any purpose. The applicants' asserted need for documents did not justify an adjournment or leave out of time. The meaningless pleading disclosed no reasonable cause of action, was embarrassing, and was an abuse of process, so it was struck out and the proceeding dismissed.

Jurisdiction
Australia
Judgment Date
24 February 2006
Procedural Posture
Federal Court Civil Proceeding / Hearing of the First Respondent's Motion to Strike Out the Amended Statement of Claim, With the Applicants Seeking an Adjournment and Leave to File a Further Amended Statement of Claim Out of Time
Outcome
The adjournment application was refused, the amended statement of claim was struck out, leave to file and serve a further amended statement of claim out of time was refused, and the proceeding was dismissed with costs payable by the Applicants to the First Respondent.
Legal Topics
['strike Out of Pleading' 'order 11 Rule 16' 'adjournment' 'leave to Amend Out of Time' 'abuse of Process' 'embarrassing Pleading' 'dismissal of Proceeding']
['civil Procedure'] ['strike Out of Pleading' 'order 11 Rule 16' 'adjournment' 'leave to Amend Out of Time' 'abuse of Process' 'embarrassing Pleading' 'dismissal of Proceeding']

Case Brief

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Procedural Posture

Federal Court Civil Proceeding / Hearing of the First Respondent's Motion to Strike Out the Amended Statement of Claim, With the Applicants Seeking an Adjournment and Leave to File a Further Amended Statement of Claim Out of Time

Legal Issues

  1. 1 ["Whether the hearing of the First Respondent's motion should be adjourned." 'Whether the Applicants should be granted leave to file and serve a further amended statement of claim out of time.' 'Whether the whole amended statement of claim should be struck out pursuant to Order 11 rule 16.' 'Whether the proceeding should be dismissed.']

Ratio Decidendi

Because the substantive paragraphs and prayer for relief of the amended statement of claim had previously been struck out, the remaining pleading was meaningless. The Applicants had been given generous time to replead, had failed to file a further amended statement of claim or evidence explaining the failure, and had not produced a proposed pleading that would allow the Court to assess whether leave would serve any purpose. The applicants' asserted need for documents did not justify an adjournment or leave out of time. The meaningless pleading disclosed no reasonable cause of action, was embarrassing, and was an abuse of process, so it was struck out and the proceeding dismissed.

Court Disposition

The adjournment application was refused, the amended statement of claim was struck out, leave to file and serve a further amended statement of claim out of time was refused, and the proceeding was dismissed with costs payable by the Applicants to the First Respondent.

Orders

  • ['The application for an adjournment of the hearing of motion of the first respondent, notice of which was filed on 24 January 2006, be refused.' 'On the motion referred to in Order 1, the whole of the amended statement of claim be struck out pursuant to Order 11 rule 16.' 'The application for leave to file and...