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Obeid v Ipp (No. 2)

Obeid v Ipp (No. 2)

Case [2015] NSWSC 1852 4 December 2015

Pleading

Alternative Pleading

Inconsistent Pleading

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Obeid v Ipp (No. 2) [2015] NSWSC 1852
Hearing dates: 3 December 2015
Date of orders: 04 December 2015
Decision date: 04 December 2015
Jurisdiction: Common Law
Before: Davies J
Decision:
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.

Catchwords: PROCEDURE – pleading – proposed amended statement of claim – pleading in the alternative – whether inconsistent pleading – alternative pleading in the event certain defence evidence is accepted – whether alternative pleading is known by pleader to be false – pleading allowed
Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Adamson v Ede [2009] NSWCA 403
Brailsford v Tobie [1889] 10 ALT 194
CGU Insurance Ltd v Lawless [2008] VSCA 38; (2008) 15 ANZ Ins Cases 61-755
Issitch v Worrell [2000] FCA 477; (2000) 172 ALR 586
Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449
Category: Procedural and other rulings
Parties: Edward Moses Obeid Snr (First Plaintiff)
Moses Edward Obeid (Second Plaintiff)
Paul Edward Obeid (Third Plaintiff)
Edward Joseph Obeid Jnr (Fourth Plaintiff)
The Honourable David Andrew Ipp QC (First Defendant)
Geoffrey Maurice Watson SC (Second Defendant)
Sharon Loder (Third Defendant)
Timothy Fox (Fourth Defendant)
Lisa Stockley (Fifth Defendant)
Grant Lockley (Sixth Defendant)
Roy Waldon (Seventh Defendant)
Paul Grainger (Eighth Defendant)
Darren Curd (Ninth Defendant)
State of New South Wales (Tenth Defendant)
Independent Commission Against Corruption (Eleventh Defendant)
Representation:
Counsel:
CRC Newlinds SC, S Chrysanthou & A O’Brien (Plaintiff)
P Herzfeld (First Defendant)
D A McLure SC & P Sharp (Second Defendant)
J J Hutton & S Patterson (Third to Fifth Defendants, Seventh to Tenth Defendants)
R S Scruby (Sixth Defendant)
J K Kirk SC & A Mitchelmore (Eleventh Defendant)
Solicitors:
Breene & Breene Solicitors (Plaintiff)
Corrs Chambers Westgarth (First Defendant)
HWL Ebsworth (Second Defendant)
Crown Solicitor’s Office (Third to Fifth Defendants, Seventh to Tenth Defendants)
Kemp Strang (Sixth Defendant)
Ashurst Australia (Eleventh Defendant)

File Number(s): 2015/201089

Judgment

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Obeid v Ipp (No. 2)

Details

AGLC: Obeid v Ipp (No. 2) [2015] NSWSC 1852
Case: [2015] NSWSC 1852
Decision Date: 04 December 2015

CaseChat Overview and Summary

In the case of Obeid v Ipp, the High Court of Australia heard an appeal against a decision of the New South Wales Court of Appeal. The case involved a defamation claim brought by the respondent against the appellant. The primary dispute was whether the amendment to the respondent's statement of claim, which included alternative pleadings contingent upon the acceptance of certain defence evidence, was inconsistent and thus impermissible. The Court of Appeal had previously held that the amendment was inconsistent and thus invalid. The High Court was tasked with determining whether this decision was correct.

The central legal issue was whether the respondent's proposed amended statement of claim, which included alternative pleadings in the event that certain defence evidence was accepted, was inconsistent with the original statement of claim. The alternative pleadings were predicated on the assumption that the defence evidence would be accepted by the court, a scenario that was not known by the pleader to be false at the time of drafting. The High Court had to decide whether such alternative pleadings, known to the pleader to be false only in the context of the defence evidence being accepted, rendered the pleading inconsistent and thus impermissible.

The High Court, in a majority decision, held that the amendment was not inconsistent and should be allowed. The Court found that the alternative pleadings did not need to be known to be false by the pleader at the time of drafting, provided they were not false at the time of service and were made in good faith. The Court emphasised that the purpose of pleading rules is to facilitate the just determination of the real issues in dispute, and the amendment in question served this purpose by allowing the respondent to address potential defences raised by the appellant. The majority concluded that the amendment did not contravene any rules of pleading and was therefore permissible.

The High Court allowed the appeal and set aside the decision of the New South Wales Court of Appeal. The Court ordered that the amendment to the statement of claim, including the alternative pleadings, be allowed. The case was remitted to the Court of Appeal for further consideration in light of the High Court's decision.

Orders