Mulivai v Utaileio

Case [2022] QCA 173

SUPREME COURT OF QUEENSLAND

CITATION:

Mulivai v Utaileio & Anor [2022] QCA 173

PARTIES:

DANE HANNA MULIVAI
(applicant)
v
FAALELE FRASER UTAILEIO
(first respondent)
ALLIANZ AUSTRALIA INSURANCE LIMITED
ABN 15 000 122 850
(second respondent)

FILE NO/S:

Appeal No 5061 of 2022
DC No 279 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – Unreported, 3 May 2022 (Burnett DCJ)

DELIVERED ON:

9 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2022

JUDGES:

Bond and Dalton and Flanagan JJA

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   Set aside the order of the District Court made 5 August 2022 granting leave to amend.

4.   The second respondent must pay the applicant’s costs of the application and of the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – FORM OF PLEADING – ALTERNATIVE OR INCONSISTENT PLEADINGS – where the applicant was a plaintiff in a part heard personal injury trial for a motor vehicle accident – where the applicant pleaded that the first defendant, now first respondent, was driving the car at the time of the crash – where the second defendant, now second respondent, was the first defendant’s insurer – where the defendants pleaded in a joint defence that the plaintiff was the driver of the motor vehicle – where the defendants later sought leave to amend their joint defence to plead, in the alternative, that if the first defendant was found to have been the driver, that the plaintiff caused or contributed to the crash – where leave to amend the joint defence was granted – whether the pleaded alternatives were embarrassing and liable to be struck out – whether leave to appeal should be granted

Motor Accident Insurance Act 1994 (Qld), s 44, s 52(1)
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 154, r 367

Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd[2021] QCA 198, considered
Issitch v Worrell (2000) 172 ALR 586; [2000] FCA 477, followed

COUNSEL:

D A Skennar QC, with M J Lazinski, for the applicant
No appearance for the first respondent
G C O’Driscoll for the second respondent

SOLICITORS:

Alexander Law Group for the applicant
No appearance for the first respondent
McInnes Wilson Lawyers for the second respondent

  1. BOND JA:  The applicant is the plaintiff in a part heard trial, in which the plaintiff claims damages for personal injuries suffered when a car, in which the plaintiff alleges he was the passenger, crashed into a parked prime mover in the early morning of 14 March 2018.

  2. The first defendant in that proceeding is the person who the plaintiff alleges was driving the car at the time of the crash.  The second defendant is the compulsory third party insurer of the first defendant and, accordingly, the first defendant is an “insured person” within the meaning of the Motor Accident Insurance Act 1994 (the Act).[1]…

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AGLC
Mulivai v Utaileio [2022] QCA 173
Case
[2022] QCA 173
Decision Date

CaseChat Overview and Summary

In the case of Mulivai v Utaileio, the plaintiff sought leave to appeal a decision by the District Court that allowed an amendment to the defendants' pleading. The plaintiff, who was a passenger in a motor vehicle accident, claimed that the first defendant was negligent in causing the crash. The second defendant, the first defendant's insurer, was also named in the suit. The defendants filed a joint defence asserting that the plaintiff was the driver of the vehicle and caused the accident. The defendants later sought leave to amend their joint defence to assert, alternatively, that if the first defendant was found to be the driver, the plaintiff contributed to the crash. The primary judge granted leave to amend, and the plaintiff appealed this decision. The court was required to determine whether the alternatives pleaded in the amended joint defence were embarrassing and liable to be struck out and whether leave to appeal should be granted.

The court held that the amended joint defence was problematic as it presented factually mutually exclusive cases, which is not permissible under UCPR r 154. The court emphasised that a party cannot plead inconsistent sets of facts in the alternative if it is known that one of the sets must be false. The court referenced Issitch v Worrell, where it was observed that such a pleading is improper and ought not to be allowed. The court concluded that the amended joint defence was embarrassing and should be struck out. Consequently, leave to appeal was granted, the appeal was allowed, and the order giving leave to amend was set aside. The second respondent was ordered to pay the applicant's costs of the application and the appeal.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. Set aside the order of the District Court made 5 August 2022 granting leave to amend.

4. The second respondent must pay the applicant’s costs of the application and of the appeal.

Background

Background to the litigation

The plaintiff seeks leave to appeal from a decision of the primary judge on the first day of the trial to allow an amendment to the defendants’ pleading. For reasons which follow, leave to appeal must be granted; the appeal must be allowed; and the order giving leave to amend must be set aside.Background In a claim and statement of claim filed 4 February 2021, the plaintiff asserted that he was a passenger in the car driven by the first defendant and that the crash and the plaintiff’s resulting injuries had occurred because of the first defendant’s negligence. In compliance with s 52(1) of the Act, the plaintiff brought the proceeding against the first defendant and the second defendant jointly. The second defendant undertook the conduct of the defence of the legal proceeding on its own behalf and on behalf of the first defendant. The power so to do was conferred on it by s 44 of the Act, which provides:“44 Power of insurer to act for insured(1) If a claim is made against an insured person, the insurer—(a) must undertake the conduct and control of negotiations and legal proceedings related to the claim; and(b) may compromise or settle the claim or legal proceedings related to the claim and act for the insured person in any other way in relation to the claim.(2)The insured person must sign any documents necessary to give effect to this section and, if the insured person does not sign or is dead, absent or can not be found, the insurer may sign for the insured person.(3)Nothing said or done by an insurer in connection with a claim, or legal proceedings related to a claim, is an admission of liability in, or otherwise prejudices or affects, another claim or proceedings arising out of the same circumstances.” The first and second defendant filed a joint notice of intention to defend and defence on 12 February 2021. It is convenient to refer to that document as the joint defence. In response to the critical paragraph about who was driving the car, the joint defence pleaded: “3.The Defendants say:-(a)At all times material the First Defendant was not the driver of the Mitsubishi;(b)At all times material the Plaintiff was the driver of the Mitsubishi;(c)The Plaintiff caused the Mitsubishi to be driven into the prime mover, causing the collision;(d)The Plaintiff was the only individual within the Mitsubishi;(e)Following the collision, the Plaintiff alighted from the scene of the accident and was later discovered away from the accident scene;(f)At all times material leading up to the collision the Plaintiff was intoxicated as defined under the Civil Liability Act 2003 (Qld) ("the CLA") pursuant to section 47;(g)The Plaintiff was charged by the Queensland Police Services for the circumstances of the collision;(h)The accident was caused by the negligence of the Plaintiff, particulars whereof are as follows:-(i) Driving intoxicated;(ii) Driving in excess of the speed limit and without heed to the road conditions;(iii) Striking the prime mover with the Mitsubishi;(iv) Failing to keep any or any proper lookout;(v) Failing to stop, slow down or steer clear of the prime mover when a reasonable prudent driver would have done so;(vi) Failing to maintain any or adequate control over the Mitsubishi;(vii) Causing, permitting or allowing the Mitsubishi to leave the roadway, striking the prime mover, causing the collision to occur;(viii) Driving without due care and attention”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

If the second defendant continues to wish to defend on the alternative bases identified in the amended joint defence, the way forward is not entirely clear. I observe as follows:(a)The insurer is by s 44 of the Act obliged to undertake the conduct of legal proceedings related to a claim against an insured person. The insurer must comply with its statutory obligations.(b)Where, as here, one set of solicitors is on the record for both an insured and an insurer, and a pleading is being settled by a barrister for both an insured and an insurer, those legal practitioners must comply with their professional obligations to those who they represent. Care must be taken to ensure that potential conflicts are properly managed.(c)One course might be that the insurer could continue to defend the proceeding by a single pleading, but that it would take care to ensure that the chapeau and the body of the pleading were amended to make clear which parts of the pleading were joint responses (or joint assertions of fact) and which parts of the pleading were separate responses (or separate assertions of fact). That might enable the pleading to have separate responses to the critical paragraph about who was driving the car. Another possibility, but perhaps more fraught with difficulty, is that there should be separate pleadings.(d)However, I express no concluded view as to the permissibility of either course. Neither was the subject of detailed argument, and in any event it is not this Court’s function to give advisory opinions.(e)I do note, however, that although the rules of pleading are important rules governing the conduct of a proceeding, the primary judge is empowered by UCPR r 367 to make any order or direction about the conduct of a proceeding he considers appropriate, even though the order or direction may be inconsistent with other provisions of the UCPR. Departures from procedural orthodoxy (even the orthodoxy of compliance with the rules of pleading) are capable of being authorised by direction of the Court, in the event that the departure is warranted having regard to the interests of justice, including the overriding obligations expressed in UCPR r 5.Conclusion I would make the following orders:1.Leave to appeal granted.2.Appeal allowed.3.Set aside the order of the District Court made 5 August 2022 granting leave to amend.4.The second respondent must pay the applicant’s costs of the application and of the appeal. DALTON JA: I agree with the reasons of Bond JA and with the orders he proposes. FLANAGAN JA: I agree with Bond JA.

Ratio Decidendi

Legal Principle Established

Before this Court, Senior Counsel for the plaintiff accepted that the adjournment defused the plaintiff’s previous complaints about prejudice caused by the lateness of the amendment and based the plaintiff’s objection to the amendment solely on the contention that the amendment involved the impermissible assertion of factually mutually exclusive cases.Consideration The relevant rule of pleading is not in doubt. Pursuant to UCPR r 154, a party can plead inconsistent sets of facts, but only if they are pleaded in the alternative. However, it has long been recognised that even if advanced in the alternative, a pleading of inconsistent sets of facts will be regarded as embarrassing and liable to be struck out if it can be demonstrated that the falsity of one of the pleaded alternatives must be known by the party asserting it. What needs to be shown here is not merely that the pleading party knows that one of the alternative sets of facts must be false, because that will always be true where the two sets of facts are logically inconsistent, such that only one of them could be true. What needs to be shown is that because the pleading party must know the true position, the pleading party must know which set of facts is false. In this regard it suffices to cite Issitch v Worrell (2000) 172 ALR 586 at [32] where Drummond J, with whom Spender and Katz JJ agreed, observed:“A party can as a general rule plead inconsistent sets of facts in the alternative …, but not where one of those sets must be known to the party to be false. It has long been recognised that such a pleading is embarrassing and will be struck out. In Brailsford v Tobie (1888) 10 ALT 194 at 195, the defendant pleaded two factually inconsistent accounts in justification for not having paid the moneys claimed by the plaintiff. Holroyd J ordered that the defendant elect which one of these two cases she would maintain, saying:. . . 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.” If the defence had been a pleading on behalf of the second defendant only, it would have been permissible for it to plead the two positive cases in the alternative. UCPR r 154 would authorise that course and it could not be demonstrated that the insurer must have known the true position. All that could be demonstrated is that evidence in the insurer’s possession suggested that one of two inconsistent sets of facts must be true, but the insurer did not know which and wished to protect itself against both. No embarrassment could be demonstrated. (I observe that the use of the phrase “Further, and in the alternative” rather than “Alternatively” was defective as it contained both a cumulative and an alternative case. But that could have been easily fixed.)