The Plaintiffs seek leave to amend their Statement of Claim filed 9 July 2015. The application is opposed by the Second Defendant (Mr Watson SC), supported by the First Defendant (Mr Ipp QC) in one respect only. The basis for the opposition is said to be inconsistent pleading that does not comply with common law principles established initially in Brailsford v Tobie [1889] 10 ALT 194 at 195 and subsequently followed in many cases.
The two areas of inconsistent pleading are said to be found in a comparison of paragraphs contained in section A5 and section A6 of the proposed Amended Statement of Claim. Section A5 concerned evidence of two A3 size colour Maps and whether such Maps were seized at the execution of the search warrant. The execution of that warrant forms the basis for the pleading generally in the Statement of Claim. The Plaintiffs' claim is that the Second Defendant asserted as a fact to the Third Plaintiff (Paul Obeid) in the course of his compulsory examination that a manila folder with the Maps inside was found in his office during the execution of the search warrant (paragraph 88).
Paragraph 110 then pleaded:
110. On a date unknown to the Plaintiffs but before 1 February 2013 Tim Fox:
(a) reported the result of his investigations and inquiries concerning the Maps to David Ipp and Geoffrey Watson;
(b) told them that he had been unable to identify any evidence that the Maps had been seized from the Premises;
(c) told them that he was unable to explain how it was that the ICAC came into possession of the Maps.
Paragraph 145 pleaded:
145. On a date unknown to the Plaintiffs but prior to 5 March 2013 Tim Fox again, or to the extent he may not have done so before, reported to David Ipp, in the presence of and/or to the knowledge of Geoffrey Watson, that there was no evidence available to the ICAC to prove that the Maps had been seized from the Premises and that despite his best enquiries he was unable to say how it was that the ICAC had come into possession of the Maps.
Reference was also made by the First and Second Defendants to paragraphs 150 and 155 which concerned questions put to Moses and Paul Obeid in relation to the Maps and final submissions which were made about them by Mr Watson. These paragraphs were said to form the basis of some of the complaints made against Mr Watson.
Section A6 of the proposed Amended Statement of Claim pleaded at paragraphs 156 - 157 that the Defence filed by the Third to Tenth Defendants on 19 August 2015 asserted that Lisa Stockley (the Fifth Defendant in the original Statement of Claim but no longer proposed to be a party in the proposed Amended Statement of Claim) found the Maps in the manila folder in the envelope on 28 February 2012. That particular allegation was not verified in any of the Defences filed by the Defendants.
Paragraph 158 then pleaded:
The allegations in this section A6 of the pleading are put in the alternative to those in section A5, on the basis that the unverified allegation that Lisa Stockley found the maps in the envelope on 28 February 2012 is found by the Court as a fact.
Subsequently in correspondence, and at the hearing in relation to this matter, the Plaintiffs made clear that paragraph 158 should be expressed as being "further and in the alternative" and that this amendment will be made.
The pleading in section A6 deals with what is described as the chain of custody of the Maps from the time of the execution of the search warrant through to the time of the compulsory examinations and the public enquiry. Paragraphs 191 and 192 then plead:
191. On:
(a) a date prior to the commencement of the public inquiry;
(b) alternatively, a date prior to the tender of Exhibit J-181 by Geoffrey Watson on 7 March 2013; or
(c) alternatively, prior to David Ipp handing down the Operation Jasper report in July 2013,
Tim Fox, Geoffrey Watson or some other unknown officer of the ICAC told David Ipp of:
i. all of the facts concerning the Maps pleaded in the preceding paragraphs of this section A6; and
ii. the fact that there was no evidence that was capable of supporting a finding that the Maps were seized other than that which could have been provided by Lisa Stockley.
Particulars
The knowledge of David Ipp is to be inferred from:
i. his role, powers and responsibility as Commissioner of the ICAC; ii. the roles, powers and responsibilities of Tim Fox;
iii. the facts and matters pleaded in part A5 above;
iv. the facts and matters set out in paragraphs 159-190 above;
v. further particulars may be provided following discovery and interrogatories.
192. On:
(a) a date prior to the commencement of the public inquiry; or
(b) alternatively, a date prior to the tender of Exhibit J-181 by Geoffrey Watson on 7 March 2013; or
(c) alternatively, prior to David Ipp handing down the Operation Jasper report in July 2013,
Tim Fox, David Ipp or some other unknown officer of the ICAC told Geoffrey Watson of:
i. all of the facts concerning the Maps pleaded in the preceding paragraphs of this section A6; and
ii. the fact that there was no evidence that was capable of supporting a finding that the Maps were seized other than that which could have been provided by Lisa Stockley.
Particulars
The knowledge of Geoffrey Watson is to be inferred from:
i. his role, powers and responsibilities as Counsel Assisting the ICAC;
ii. the facts and matters pleaded in part A5, above;
iii. the facts and matters pleaded in paragraphs 159-190, above;
iv. further particulars may be provided following discovery and interrogatories. (emphasis added)
The First and Second Defendants draw attention to the words in 191(c)(ii) and 192(c)(ii) "other than that which could have been provided by Lisa Stockley". They point out that what is pleaded in those parts of paragraphs 191 and 192 is quite inconsistent with what is pleaded in paragraph 145. In paragraph 145 it is asserted that Tim Fox reported to the First Defendant in the presence of and/or to the knowledge of the Second Defendant that there was no evidence available to ICAC to prove that the Maps had been seized from the premises and that despite his best enquiries he was unable to see how it was that ICAC had come into possession of the Maps. On the other hand, paragraphs 191 and 192 asserted that Tim Fox or some other person told the First and Second Defendants that there was no evidence that was capable of supporting a finding that the Maps were seized other than that which could have been provided by Lisa Stockley.
Paragraphs 191 and 192 formed the basis of the claims made against the First and Second Defendants in paragraphs 195 and 196, that is, the various allegations of wrongdoing.
The Defendants submit that this is not an alternative pleading that can be made pursuant to r 14.18 Uniform Civil Procedure Rules 2005 (NSW). That rule provides:
14.18 Pleadings to be consistent as to allegations of fact
(1) A party must not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with any of his or her previous pleadings.
(2) Subrule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative.
The First and Second Defendants submitted that one of the sets of facts pleaded must be known by the Plaintiffs to be false. In such a case, as the Court of Appeal made clear in Adamson v Ede [2009] NSWCA 403 at [30], the pleading should not be allowed. The First and Second Defendants suggested by analogy that just as an accused could not defend an allegation of sexual assault by saying first that he did not commit the sexual act but then saying in the alternative that it was by consent, so the contrary assertions made in the paragraphs under consideration could not be made.
In Brailsford the Defendant pleaded two factually inconsistent accounts in justification for not having paid the monies claimed by the Plaintiff. Holroyd J ordered that the Defendant elect which one of these two cases she would maintain:
... I think it would be most improper to allow the Defendant to plead as she has done. The actual facts must be within her own knowledge, and that being so she has set up two sets of facts inconsistent with one another. If this were allowed it would be permitting a party knowing the facts to deliberately place on the record statements, one or other of which must be known to be a lie. This, in my opinion, ought not to be allowed. (emphasis added)
The way that rule has been expressed in later cases is that a party can plead inconsistent sets of facts in the alternative but not where one of those sets must be known to the party to be false: Issitch v Worrell [2000] FCA 477; (2000) 172 ALR 586 at [32]; Adamson v Ede at [30]; and CGU Insurance Ltd v Lawless [2008] VSCA 38; (2008) 15 ANZ Ins Cases 61-755.
In Lawless Redlich JA (with whom Maxwell P and Neave JA agreed) said:
[26] The primary argument advanced on appeal, which had not been advanced before the trial judge, was as follows. Once the trial judge made findings contrary to the respondent's case as to how the accident occurred, the respondent was precluded from establishing that he took reasonable precautions. He was not permitted to establish a state of mind in relation to facts which was inconsistent with the case he advanced at trial that he was not aware that Anthony was holding the post. The respondent had not given evidence that he did not consider it dangerous for Anthony to hold the post, as he had put his case on the basis that Anthony was not holding the post. Once the trial judge had rejected his evidence and found that he in fact knew that Anthony was holding the post, it was not open to him to argue that he did not appreciate the danger arising in respect of Anthony holding the post or that he did not deliberately court that danger.
[27] In support of the contention that the respondent had deprived himself of the ability to prove that he took reasonable precautions, as he was not entitled to have the benefit of an alternative case which he had positively and expressly disclaimed, counsel for CGU relied upon the cases of Issitch v Worrell; JC Decaux Pty Ltd v Adshel Street Furniture Pty Ltd; Brailsford v Tobie; and Suvaal v Cessnock City Council. The first three cases concern a general pleading rule that prohibits a party from pleading an inconsistent sets of facts in the alternative where one of those sets of facts must be known to the party to be false. Such a pleading is embarrassing and will be struck out. The rationale for this pleading principle is that it would be an abuse of the Court's process to permit facts to be pleaded which deliberately place on the record positive statements of fact, one or other of which must be known by the pleading party to be untruthful. The appellant contended that, although the respondent was not obliged to plead and had not pleaded as to the manner in which he alleged that he had satisfied the special condition, the principle remained applicable that he was precluded from pursuing necessarily inconsistent cases. (emphasis added)
The significant matter to emerge from all of these cases is the knowledge that the pleader has that one of the alternatives pleaded is untrue. That was no doubt why Gleeson CJ and Heydon J said in Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449 at [21] that it may have been possible for the plaintiff in that case to give an alternative explanation for how he came to be in a particular position on the road although there was an inconsistency between those positions. There was no statement of fact known to be false.
In the present case the Plaintiffs say that they do not know what it was that Mr Fox reported to the First and Second Defendants in relation to the Maps. Their principal case is, by reason of the matters pleaded in s A5, that he reported the matters pleaded in paragraph 145. From submissions made by Senior Counsel for the Plaintiffs it appears that the assertion of what Mr Fox said is based on an inference from the earlier matters pleaded.
The Plaintiffs do not put forward the case set out in s A6 but they say that if the assertion relating to Lisa Stockley is found to be true they would wish to put a modified case, as it were, that Mr Fox or some other person must have said the matters contained in paragraphs 191 and 192.
What seems clear is that the Plaintiffs do not know that either of the matters they have asserted about what Mr Fox said are false. That also appears from the addition of the words "or some other unknown officer of the ICAC" in both paragraphs 191 and 192.
I accept the submission of the First and Second Defendants that r 14.18 is qualified by the common law. If there was any doubt what was said in Adamson v Ede at [29] - [31] makes that clear. I do not, however, accept the submission of the First and Second Defendants that the common law rule precludes in the present case the alternative pleading contained in paragraphs 191 and 192. They do not show, and there is nothing to infer, that the Plaintiffs plead a matter that they know to be false or untruthful. Further, unlike in Brailsford where it was held that the actual facts must be within the pleader's knowledge, this has not been shown to be so in the present case.
I accept that some difficulties arise by the alternative pleading particularly because the Amended Statement of Claim must be sworn by the Plaintiffs to be true as to matters of fact asserted and because the solicitor is required to certify the Statement of Claim under cl 4 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 (NSW). That might give rise to credibility issues for the Plaintiffs (see in that regard Suvaal at [21]) but I do not consider that the pleading should be disallowed.
On the other hand, I can see no particular disadvantage which the First and Second Defendants suffer if the alternative pleading is allowed. It does not put Mr Fox or any other person in a position of having to choose between two inconsistent positions if he or they are to give evidence in defence of the claim. Nor does it give rise to any difficulty for those Defendants to plead to the two alternative claims. Mr Fox either said what is asserted in either paragraph 145 or paragraph 191 and 192 or he did not.
With the modification to paragraph 158 referred to earlier the Plaintiffs are given leave to plead and rely on the pleading contained in section A6 of the proposed Amended Statement of Claim.
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Decision last updated: 08 December 2015