Liddicoat v. Asteron Life Limited
[2007] QDC 102
•7 June 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Liddicoat v Asteron Life Limited [2007] QDC 102
PARTIES:
BRIAN LIDDICOAT
Applicant/Plaintiff
V
ASTERON LIFE LIMITED
Respondent/Defendant
FILE NO/S:
Southport DS 272/2006
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court of Queensland, Southport
DELIVERED ON:
DELIVERED AT:
Southport
HEARING DATE:
4 June 2007
JUDGE:
Alan Wilson SC, DCJ
ORDER: 1 strike out the words ‘FURTHER AND’ where appearing in the heading immediately before para 23 of the amended defence of the defendant filed 28 May 2007;
2 dismiss the plaintiff’s application filed 15 May 2007 and amended applications filed 1 June and 4 June 2007; and,
3 no order as to costs
CATCHWORDS:
PRACTICE – PRACTICE AND PROCEDURE – PLEADING – PLEADING ‘FURTHER OR ALTERNATIVELY’ – whether amended pleading raising new, alternative defence also involved attempt to withdraw admissions without leave
Uniform Civil Procedure Rules, rr 154, 188, 379
Cases considered:
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
COUNSEL:
J D Harper for applicant/plaintiff
R Morton for respondent/defendantSOLICITORS:
Maurice Blackburn and Cashman for applicant/plaintiff
McInnes Wilson for respondent/defendant
This is a claim under a ‘total and permanent disablement’ insurance policy. The plaintiff alleges that in 2002 he injured himself at work in circumstances entitling him to benefits under a policy he had purchased from the defendant. In its original defence the insurance company admitted the policy, but denied the plaintiff had become totally and permanently disabled in its terms.
[2] The pleadings closed at the end of December 2006 and a mediation was attempted in April 2007. I was told, by agreement, that at the mediation the insurer’s representative told the plaintiff’s representative that the insurer was considering an amendment to its defence to raise fraudulent non-disclosure[1].
[1]Transcript, p 3 ll 33-38
[3] On 15 May 2007 the plaintiff filed an application seeking orders that a Request for Trial Date be dispensed with and the matter be allocated a trial date. On 28 May 2007 the defendant filed an amended defence pleading, further or alternatively to its earlier defence, that the plaintiff had wrongly answered questions in his application for the insurance policy and did so fraudulently or recklessly and, in any event, in circumstances which entitled the insurance company to negate the policy.
[4] On 1 June 2007 the plaintiff filed an amended application seeking an order that those amendments to the defence be disallowed. At the hearing on 4 June, a further amended application was filed by leave seeking expanded relief about the amended defence including, in particular, a declaration that the defendant had failed to comply with rules which required it to obtain the court’s leave before withdrawing, as the plaintiff alleged, admissions contained in the defence.
[5] As argued, the dispute centres on the question whether the new alternative pleading contains a withdrawal of admissions and thereby offends UCPR r 188 (which prohibits withdrawal of admissions other than with the leave of the court).
The amended defence, however, simply raises an alternate plea, albeit one that is inconsistent with admissions about the existence of a valid policy in the first defence. The latter course is permitted under UCPR r 154 which allows inconsistent allegations in a pleading if they are pleaded as alternatives. It is within the ambit of that rule to assert that the policy was avoided and is not binding – or, if that defence fails, that the policy remained effectual but the plaintiff has not established a right to benefit under it.
That is what the amended defence purports to do, but the use of the words ‘further and alternatively’, in a heading in the amended defence immediately before the new plea, is confusing. On its face the phrase connotes that the matter which follows it is not only alternative to but simultaneously adjunctive to what precedes it. The new defence raises, however, a distinct and discrete (and alternative) ground of defence. Proper compliance with r 154 requires only the word ‘alternatively’ when the different pleas are, as here, inconsistent[2].
[2]As the learned authors of Butterworth’s ‘Civil Procedure Queensland’ note at p 8087, para [r 154.1]
[8] Otherwise, this is not a case in which so much time has elapsed, or so many things have occurred in the action itself as to suggest any prejudice to the plaintiff from the new pleading, or any other ground for denying the defendant the opportunity to argue a case on the new, alternative ground[3].
[3]State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Because a Request for Trial Date has not been filed the plaintiff was entitled, as he did, to apply within eight days after service of the amended defence to disallow all or part of the amendment: UCPR, r 379. The court has a wide discretion: r 379(2). The plaintiff’s application to that end has failed in the terms it was argued but, for the reasons set out earlier, words appear in the new defence which have a tendency to confuse and they should be removed from it.
The action is not ready for trial – more particularly, after the changes to the defence – and has not been allocated trial dates. The delivery of an amended defence may lead the plaintiff to plead in reply. There will also, obviously, be a need for further disclosure. It would be disappointing if the parties needed directions about those steps, with which they should sensibly and expeditiously proceed.
Both parties seek costs. Several matters touch the exercise of the discretion in that regard. The plaintiff’s solicitors sent a signed Request for Trial Date to the defendant on 24 January 2007. The mediation took place on 17 April 2007, and at that time the defendant warned the plaintiff of its proposed amendment. The amended pleading was not, however, delivered until 28 May. It contained, in a heading, the words which convey an inappropriate and misleading connection between the inconsistent alternatives the defendant now pleads – but that was not the ground upon which the plaintiff argued this application.
In those circumstances I think the appropriate orders are to strike out the words ‘FURTHER AND’ where appearing in the heading immediately before paragraph 23 of the amended defence of the defendant filed 28 May 2007; to dismiss the plaintiff’s application filed 15 May 2007 and amended applications filed 1 June and 4 June 2007; and, to make no order as to costs.
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