Mulivai v Utaileio & Anor

The question in this case was whether the second defendant insurer ought to have been permitted to amend the joint defence on the first day of the trial. The court set aside the order, on the basis that the plaintiff should not have to meet allegations which were embarrassing due to the way in which the second defendant had chosen to plead the case on behalf of it and the first defendant.

Bond and Dalton and Flanagan JJA

9 September 2022

The applicant, the plaintiff in a part heard trial, sought damages for personal injuries suffered when a car in which he said he was the passenger crashed into a parked prime mover. [1]. He claimed that at all relevant times the first defendant had been driving the vehicle. [5], [12]. The CTP insurer second defendant had statutory obligations to act on behalf of it and the insured under s 44 Motor Accident Insurance Act 1994. [6]. It pleaded in a joint defence that the plaintiff was in fact the driver of the motor vehicle, and that the accident had occurred partly due to his actions in driving whilst intoxicated. [8]. On the first day of trial, the second defendant was granted leave to amend the joint defence to plead, in the alternative, that if the first defendant was found to have been the driver, then the plaintiff caused or contributed to the crash by interfering with the first defendant’s driving whilst behaving in a distracting and erratic manner, and it was that contributory negligence which effectively caused the accident, or in the alternative defeated and/or reduced the damages pursuant to s 23 Civil Liability Act 2003. [15], [17].

Inconsistent allegations or claims in pleadings

Rule 154 permits a party to plead inconsistent sets of facts in the alternative. Nonetheless, a pleading of inconsistent sets of facts will be considered embarrassing and likely to be struck out in the event the court is satisfied that the party asserting it must be aware of the falsity of one of the pleaded alternatives. The mere fact that the pleading party knows that one of the alternative sets of facts must be false will not suffice. What needs to be demonstrated is that given the pleading party must know the true position, it follows that it must also know which set of facts is false: see Issitch v Worrell (2000) 172 ALR 586, [32]. [19]–[20].

In the current matter the second defendant, who had filed the joint defence, did not know the true position. The court held that had the defence been a pleading on behalf of the second defendant alone, then it would have been allowed to plead the two positive cases in the alternative. [21]. The fact that the amendments for which leave was sought and obtained were amendments to a joint defence, was “no mere empty formality”. [22]. The problem for the second defendant was that it was plainly the case that the first defendant, given his role in the accident, must have been aware of the true state of affairs and in particular, which version of the inconsistent sets of facts was false. In those circumstances a pleading on behalf of two defendants who were jointly responding to allegations should not have been permitted to advance inconsistent sets of facts. [23].

Whether appellate intervention was warranted given the application related to an interlocutory decision on a matter of practice and procedure

Citing Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [2021] QCA 198, [12]– – [14] the second defendant argued that even if error of principle was found, the order should not be set aside since it would not result in any substantial injustice to the plaintiff.

The court was prepared to intervene at an interlocutory stage despite the trial still remaining on foot because the application involved an important point of pleading principle, and the court was able to intervene without disrupting the trial itself. The plaintiff should not have to meet allegations advanced in the joint defence which it deemed embarrassing. [24].

As to the appropriate course forward in the part heard trial, the court reiterated the second defendant’s continuing statutory obligations to act on behalf of it and its insured under s 44 Motor Accident Insurance Act 1994. Whilst refraining from offering any advisory opinion it speculated that it might be the case that either the insurer could continue to defend the proceeding by a single pleading or alternatively that there could be separate pleadings. [25].

Disposition

The appeal was allowed and the court set aside the order granting leave to amend.

A Jarro