Obeid v Ipp (No. 2)

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:

Paragraph 145 pleaded:

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 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:

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:

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:

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:

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.