UCPR 154 – Pleading Mutually Exclusive Alternatives

Mulivai v Utaileio & Anor [2022] QCA 173

Bond JA delivered the judgment of the Court of Appeal (Dalton and Flanagan JJA agreed).

The issue involved mutually exclusive factual alternatives pleaded in an amended joint defence by the insurer, the second defendant on behalf of the driver (the first defendant), under the Motor Accident Insurance Act 1994.

The plaintiff claimed personal injuries and alleged he was a passenger in the car that the first defendant drove and crashed into a parked prime mover. The defence before trial pleaded that the plaintiff was intoxicated and the driver. The plaintiff’s reply denied he was the driver and relied on a sworn statement of the first defendant that he was the driver.

On the first day of trial, counsel for the second defendant sought leave to amend the defence, adding an alternative claim of contributory negligence, alleging the plaintiff intimated he was going to vomit and interfered with the driving of the car and caused the collision by placing his hand on the first defendant’s arm and then striking the first defendant.

The plaintiff opposed the amendment. The trial judge allowed the amendment but adjourned the trial on the intimation of the plaintiff that the decision would be appealed.

The appeal by the plaintiff concerned the factually mutually exclusive cases where the plaintiff was the driver and, alternatively, the passenger.

Bond JA noted that rule 154 of the Uniform Civil Procedure Rules 1999 permits inconsistent facts to be pleaded in the alternative. However, where it can be demonstrated that the falsity of one of the alternatives is known to the party, it is liable to be struck out as embarrassing – Issitch v Worrell (2000) 172 ALR 586 at [32].

His Honour stated, “the problem for the second defendant” was the defence was on behalf of both defendants and not solely in its capacity as insurer. It would have been permissible if the defence was only on behalf of the insurer for the insurer to protect its position by pleading the alternatives if it did not know which of the two inconsistent facts were untrue. However, this was not the case:

[23] The assertions advanced in the pleading were assertions which must be regarded as having been made on behalf of both the first defendant and the second defendant. Yet given the nature of the alternative inconsistent sets of facts, the first defendant must know the true position. He must know which one of the inconsistent sets of facts is false. A pleading on behalf of two defendants who are advancing a joint response to allegations in a plaintiff’s pleading cannot be permitted jointly to advance inconsistent sets of facts if one of those sets of facts must be known to be false by one of those defendants.

Despite the appeal concerning an interlocutory decision on practice and procedure, leave for the appeal was granted because his Honour found it was an “important point of pleading principle”.

The appeal was allowed with costs.

David Cormack

Brisbane Barrister & Mediator.


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