McEwan v Director of Public Prosecutions
[2022] QCA 231
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- Unreported Judgment
- Appeal Determined (QCA)
- McEwan v Director of Public Prosecutions[2022] QCA 231
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McEwan v Director of Public Prosecutions[2022] QCA 231
McEwan v Director of Public Prosecutions[2022] QCA 231
SUPREME COURT OF QUEENSLAND
CITATION: | McEwan v Director of Public Prosecutions & Anor [2022] QCA 231 |
PARTIES: | JULIE McEWAN (appellant) v DIRECTOR OF PUBLIC PROSECUTIONS (first respondent) EMILY McGREGOR (second respondent) |
FILE NO/S: | Appeal No 6631 of 2022 SC No 971 of 2022 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2022] QCA 81 (Martin SJA) |
DELIVERED ON: | 22 November 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 October 2022 |
JUDGES: | Mullins P and McMurdo and Flanagan JJA |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – QUESTIONS NOT RAISED ON PLEADINGS OR IN ARGUMENT – PARTICULAR CASES – QUESTION OF LAW – where the appellant makes allegations against the respondents for malicious prosecution – where the appellant appeals against an order granting summary judgment in favour of the first and second respondents – where the primary judge granted summary judgment on the basis that the respondents had immunity from liability pursuant to s 25 of the Director of Public Prosecutions Act 1984 (Qld) – where the appellant argues that the primary judge erred in granting summary judgment on the basis that the immunity from liability extends to allegations of malicious prosecution or malfeasance in public office – where the respondents filed a notice of contention conceding the ground of appeal but sought to confirm the order for summary judgment on a ground other than that relied on by the primary judge – where the respondents contend that the primary judge ought to have held that the second respondent could not be liable for malicious prosecution or misfeasance in public office by reason of s 26C of the Public Service Act 2008 (Qld) – where the respondents argue that any tortious liability would attach to the State of Queensland and not to the second respondent, a prosecutor at the Director of Public Prosecutions (Qld) – where the respondents argue that the first respondent, the Director of Public Prosecutions, could not be vicariously liable for the conduct of its prosecutor – whether the Court of Appeal should entertain the notice of contention in circumstances where no application was made for summary judgment in reliance on s 26C of the Public Service Act 2008 (Qld) Director of Public Prosecutions Act 1984 (Qld), s 25 Public Service Act 2008 (Qld), s 26C Uniform Civil Procedure Rules 1999 (Qld), r 69, r 293, r 766 |
COUNSEL: | The appellant appeared on her own behalf G J Del Villar KC SG, with D M Favell and F Nagorcka for the respondent |
SOLICITORS: | The appellant appeared on her own behalf G R Cooper, Crown Solicitor for the respondent |
- [1]MULLINS P: I agree with Flanagan JA.
- [2]McMURDO JA: I agree with Flanagan JA.
- [3]FLANAGAN JA: The appellant appeals against an order granting summary judgment, pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (UCPR) in favour of the first and second respondents. At first instance the first respondent, the Director of Public Prosecutions, was named as the eighth defendant and the second respondent, Ms McGregor, who is a prosecutor employed in the Office of the Director of Public Prosecutions, was named as the ninth defendant.
- [4]The primary judge granted summary judgment on the basis that the respondents had immunity from liability pursuant to s 25 of the Director of Public Prosecutions Act 1984 (DPP Act). Section 25 provides:
“Protection of persons executing Act
No act or thing done or omission made by the Minister, the director or any person assisting the director for the purpose of giving effect to this Act or discharging, exercising or performing any function, power, authority or duty under this Act shall subject the Crown, the Minister, the director or any person to liability at law in respect thereof.”
- [5]The appellant challenges the order for summary judgment on the basis that the primary judge erred in granting summary judgment in reliance on s 25 of the DPP Act. The appellant submits that, when properly construed, the immunity from liability created by s 25 does not extend to allegations of malicious prosecution or malfeasance in public office.
- [6]By email dated 7 October 2022, four days before the hearing, the respondents informed the Court of Appeal Registry that they no longer opposed the appellant’s appeal so far as it concerned the proper construction of s 25. This concession was confirmed at the hearing of the appeal. Accordingly, the appeal should be allowed.
- [7]By notice of contention however, the respondents seek to confirm the order for summary judgment on a ground other than that relied on by the primary judge. The respondents contend that the primary judge ought to have held that, by reason of s 26C of the Public Service Act 2008 (Qld) (Public Service Act), the second respondent could not be liable for malicious prosecution or misfeasance in public office as any tortious liability would attach to the State of Queensland and not to the second respondent. In such circumstances, the first respondent could not be vicariously liable for the conduct of the second respondent. Section 26C provides as follows:
“26C. Civil liability of State employee for engaging in conduct in official capacity
- (1)A State employee does not incur civil liability for engaging, or for the result of engaging, in conduct in an official capacity.
- (2)If subsection (1) prevents liability attaching to a State employee, the liability attaches instead as follows—
- (a)if paragraph (b) does not apply—to the State;
…
- (3)If liability attaches to the State under subsection (2)(a), the State may recover contribution from the State employee but only if the conduct was engaged in—
- (a)other than in good faith; and
- (b)with gross negligence.
…
engage in conduct in an official capacity means engage in conduct as part of, or otherwise in connection with, a person’s role as a State employee, including, for example, engaging in conduct under or purportedly under an Act.
Example of a State employee engaging in conduct in an official capacity—
A State employee makes a decision in relation to an application for a licence.”
- [8]These contentions are raised in circumstances where the application before the primary judge sought summary judgment on the basis of s 25 of the DPP Act. The alternative relief sought pursuant to s 26C of the Public Service Act was not summary judgment but rather an order pursuant to r 69 of the UCPR that the first and second respondents be removed as parties to the proceeding. The issue in relation to the notice of contention is whether this Court should entertain the respondents’ application for summary judgment in reliance on s 26C of the Public Service Act in circumstances where no such application was made before the primary judge.
Background
- [9]On 22 August 2018 the appellant was charged with one count of fraud pursuant to s 408C of the Criminal Code Act 1899 (Qld). The charge was pursued until 12 May 2021 when a nolle prosequi was entered.
- [10]On 21 January 2022 the appellant filed proceedings against a number of parties including the first and second respondents. One of the claims made by the appellant against the second respondent was for damages for misfeasance and malfeasance in public office. The appellant also sought damages for malicious prosecution.
- [11]On 24 February 2022 the appellant filed an amended statement of claim.
- [12]On 11 March 2022 the respondents along with other defendants filed an application which relevantly sought:
- (a)summary judgment in reliance on s 25 of the DPP Act; or
- (b)alternatively, the removal of the respondents as parties to the proceeding by reason of s 25 of the DPP Act or s 26C of the Public Service Act.
- (a)
The application did not seek summary judgment in reliance on s 26C of the Public Service Act.
- [13]The primary judge, having granted summary judgment on the basis of s 25 of the DPP Act, did not consider the alternative relief for the removal of the respondents as parties pursuant to r 69 on the basis of s 26C of the Public Service Act. The respondents did not appeal against any failure on the part of the primary judge to consider the alternative relief. This is not surprising given that the respondents had obtained summary judgment in reliance on s 25 of the DPP Act.
- [14]The appellant filed a notice of appeal on 7 June 2022 and subsequently applied for leave to amend her notice of appeal. On 5 August 2022 Bond JA allowed the appellant’s application for leave to amend the notice of appeal. This permitted the appellant to pursue grounds of appeal asserting that the primary judge erred in finding that s 25 of the DPP Act operated to protect the respondents.
- [15]There was also an application by the respondents before Bond JA for the appellant to provide security for costs of the appeal. His Honour was of the view that the appellant’s appeal was “strongly arguable”:[1]
“It is at least strongly arguable that the immunity conferred by s 25 is aimed at acts or omissions which are in truth done in good faith for the purposes referred to in the section. If something which was ostensibly done for such purposes, was in truth done maliciously and without reasonable and probable cause, it may follow that it is truly being done for some purpose foreign to the purposes of Act. In such a case it seems to me to be strongly arguable that the true purposes would take the defendant outside the intended scope of the immunity. As the sole basis for the primary judge granting judgment was his view of the scope of the immunity, it would follow that an appeal which challenged that order is strongly arguable.”
- [16]Bond JA further noted that the potential application of s 26C of the Public Service Act was, at the time of determining the application for security for costs, not part of the appeal. Counsel for the respondents before Bond JA did however intimate that the respondents intended to raise the argument on appeal by filing a notice of contention.
Consideration
- [17]There are, in my view, a number of reasons why this Court should not entertain the notice of contention.
- [18]First, the respondents did not apply before the primary judge for summary judgment in reliance on s 26C of the Public Service Act.
- [19]Secondly, the only relief sought before the primary judge in reliance on s 26C was the removal of the respondents as parties to the proceeding pursuant to r 69 of the UCPR. Rule 69(1)(a) provides that the court may at any stage of a proceeding order that a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding. The discretion to be exercised under r 69 is distinctly different from the discretion to grant summary judgment under r 293. Rule 293(2) requires the court to be satisfied of two matters before exercising the discretion to give judgment. The court is to be satisfied that the plaintiff has no real prospects of succeeding on all or part of the plaintiff’s claim and that there is no need for a trial of the claim or part of the claim.
- [20]Thirdly, if this Court was to consider the respondents’ application for summary judgment on the basis of s 26C, the appellant, not having the matter determined at first instance, would be deprived of a right of appeal to this Court.
- [21]Fourthly, the appellant, who is self-represented, objects to the respondents seeking summary judgment before this Court in reliance on s 26C in circumstances where summary judgment was only sought before the primary judge on the basis of s 25 of the DPP Act.
- [22]Fifthly, there has been no application by the respondents to amend the application that was before the primary judge.
- [23]Sixthly, since the primary judge gave reasons for judgment on 11 May 2022, the appellant has filed a new version of the statement of claim. Neither the appellant nor the respondents sought to place the new version of the statement of claim before this Court. The Court, in considering any application for summary judgment based on s 26C, would not be informed as to the factual basis upon which the appellant may allege that the immunity in s 26C does not apply to the second respondent. Section 26C applies to State employees. It does not apply to the first respondent as the Director of Public Prosecutions is appointed by the Governor in Council: s 5(1) of the DPP Act. The immunity created by s 26C will only apply to the second respondent if she was engaging “in conduct in an official capacity”: s 26C(1) of the Public Service Act. This is a defined term and includes, for example, engaging in conduct under or purportedly under an Act. In an affidavit filed by the second respondent on 11 March 2022, she affirms that all her dealings with the appellant’s criminal matter was in her capacity as a legal officer assisting the Director. While this affidavit constitutes evidence of the second respondent engaging in conduct in an official capacity, the Court is unable to assess, without the most current version of the statement of claim, any challenge by the appellant to this assertion.
- [24]While this Court, pursuant to r 766(1)(a) of the UCPR, has all the powers and duties of the court that made the decision appealed from, for the reasons identified above, it is not appropriate for this Court to entertain the notice of contention.
Disposition
- [25]I would make the following orders:
- The appeal is allowed.
- The judgment given for the first and second respondents on 11 May 2022 is set aside.
- The first and second respondents pay the appellant’s costs of the appeal, limited to the appellant’s outlays.
- By consent of the parties, set aside the order for indemnity costs made by the primary judge on 3 June 2022 insofar as it relates to the costs of the first and second respondents against the appellant.
Footnotes
[1] Director of Public Prosecutions & Anor v McEwan [2022] QCA 142 at [23].