McEwan v Cloudsdale[2023] QCA 122

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The appellant appeals two separate orders arising out of an originating application seeking preliminary disclosure of a document from the respondents.
2. [2]
   The first appeal relates to an order of Williams J, refusing an interlocutory application for such disclosure.
3. [3]
   The second appeal relates to an order of Burns J, on the final hearing of the originating application, striking out the appellant’s originating application on the basis it was an abuse of process.
4. [4]
   The appellant also seeks leave to adduce further evidence in the appeal against Williams J and to file amended outlines dated 16 May 2023 in respect of both appeals.
5. [5]
   The first and fourth respondents seek an extension of time in which to file a Notice of Contention in the appeal against Burns J.

Background

6. [6]
   In or about November 2020, the appellant made a privacy complaint to the Australian Information Commissioner (“AIC”) against the Australian Taxation Office (“ATO”) and one of its officers.  The complaint was that that officer had disseminated the appellant’s protected information, received under section 353-10 of the Taxation Administration Act 1953 (Cth) (“TAA”), to a specified organisation and that the dissemination was false and vexatious.
7. [7]
   On 10 March 2022, the first respondent issued a finding, pursuant to section 41 of the Privacy Act 1988 (Cth), that the AIC would not investigate the appellant’s complaint, because the ATO had not breached the appellant’s privacy.
8. [8]
   Thereafter, the appellant made a further complaint against the same officer, alleging he had disseminated the appellant’s tax audit “compulsory interview” to a witness, in breach of section 353-25 of the TAA.
9. [9]
   That further complaint was the subject of a determination by the first respondent that the officer could lawfully disseminate compulsorily acquired material to any person, if a taxpayer was under an investigation.
10. [10]
    In May 2022, the appellant filed two applications in the Federal Court of Australia, seeking judicial review of the decisions for the two complaints.
11. [11]
    On 29 June 2022, the appellant filed an interlocutory application in the Federal Court, seeking, relevantly, orders that a preliminary determination letter of a Mr Tanyous be disclosed, and that the ATO officer the subject of the complaints and another officer be joined in the proceedings.
12. [12]
    The preliminary determination letter request related to telephone advice the appellant received from Mr Tanyous in January 2022, to the effect that an ATO officer had breached the appellant’s privacy, and that Mr Tanyous would send a copy of the preliminary determination letter once it had been signed off by the first respondent.
13. [13]
    The appellant’s interlocutory application was determined in the Federal Court on 5 July 2022.^[1]  Relevantly, Logan J declined to make any order for disclosure of the preliminary determination letter, noting that the appellant had already received disclosure of the document in the affidavit material relied upon by the respondents in those proceedings, and finding that whilst the appellant was entitled to disclosure in the proceeding, she would need to wait and obtain the court record book to see what documents were before the relevant decision-maker.
14. [14]
    The court record book was subsequently prepared for the final hearing of the judicial review applications in the Federal Court on 8 November 2022.  Page 639 contained a copy of the preliminary determination letter, which was undated.
15. [15]
    The appellant raised inconsistencies and irregularities with the document at page 639, in the Federal Court proceeding.  The appellant said she had been provided with an electronic version of that preliminary determination letter and that upon opening the electronic document, she obtained differing versions of that document, including a version with a date in the top, right-hand corner of “1 January 2001 at 10:00 am”.
16. [16]
    On 8 November 2022, Logan J dismissed the appellant’s judicial review application in respect of the first complaint.^[2]  In doing so, Logan J specifically referred to the appellant’s concerns about the document at page 639 of the court record book.
17. [17]
    On 10 November 2022, the appellant filed an originating application in the Supreme Court of Queensland, seeking, inter alia, an order that Mr Tanyous “verify the authenticity of the email/document tendered into evidence in the court application book and the copy provided to the applicant”.  The court application book was a reference to the Federal Court proceeding.
18. [18]
    On 15 November 2022, the appellant filed a notice of appeal in that Court against the orders of Logan J made on 8 November 2022.  One of the grounds of that appeal was that Logan J failed to address and place any weight on “tampered evidence” relevant to the proceeding, being the document at page 639 of the court record book.

Proceedings below

19. [19]
    The appellant’s originating application was the subject of a first directions hearing on 16 November 2022.  During that hearing, Williams J raised with the respondents whether an electronic copy of the document could be provided to the appellant.  The third respondent replied that it could, including by being provided on a USB stick.
20. [20]
    Williams J made a number of directions in relation to the filing of any amended originating application, affidavits and submissions, and listing any application to dismiss the originating application, or any other relevant applications, for hearing on 7 December 2022.  No direction was made requiring production of the document to the appellant.
21. [21]
    On 18 November 2022, the appellant filed an amended originating application.^[3]  It contained a number of allegations concerning the conduct of the Federal Court proceedings, and referred to the appeal the appellant had filed in the Federal Court.  It also contained a claim for conspiracy to injure by unlawful means.
22. [22]
    The amended originating application sought specific relief including, relevantly, that the first, second and third respondents provide an electronic copy, including the metadata, of the preliminary determination letter authored by Mr Tanyous, as well as a sworn statement attesting to the fact that the document at page 639 of the Federal Court proceedings court application book was a true and correct copy of the preliminary determination letter authored by Mr Tanyous, and if not, a sworn statement annexing the true and correct copy of that document.
23. [23]
    On 21 November 2022, the appellant filed an interlocutory application, returnable on 24 November 2022, seeking that the respondents provide “in accordance with the directions of Justice Williams on 16 November 2022” an electronic copy of the “Preliminary Decision as authored by Timothy Tanyous” on a USB by 4.00 pm on 25 November 2022, so that the document be in a form that could be “forensically verified by a computer expert”.  The order was sought pursuant to rule 443(d) of the Uniform Civil Procedure Rules 1999 (“UCPR”).
24. [24]
    On 24 November 2022, Williams J dismissed the appellant’s interlocutory application on the grounds that there had been no direction given on 16 November 2022, to the effect that the respondents were to provide that electronic copy, and there was no basis under the UCPR to order its production at the interlocutory stage.
25. [25]
    On 25 November 2022, the respondents filed applications seeking orders for the dismissal or setting aside of the amended originating application.
26. [26]
    On 29 November 2022, the appellant filed the first notice of appeal.^[4]
27. [27]
    On 7 December 2022, the respondents’ applications for dismissal or setting aside of the amended originating application were heard by Burns J.  The decision was reserved.
28. [28]
    On 12 December 2022, the appellant sought to have the matter brought back before Burns J, for further submissions.  Leave was given to the appellant to serve further written submissions, which she did on 14 December 2022, with the respondent filing further short submissions on 15 December 2022.
29. [29]
    On 23 December 2022, Burns J ordered that the amended originating application be set aside, on the ground it was an abuse of process.
30. [30]
    On 17 January 2023, the appellant filed the second notice of appeal.^[5]

Reasons of Williams J

31. [31]
    In dismissing the interlocutory application filed on 21 November 2022, Williams J recorded that at the directions hearing held on 16 November 2022, it had been confirmed by counsel for the fourth respondent that the “original” of the preliminary determination letter was the electronic version on the computer system maintained by or under the control of the fourth respondent, and that there was no hard copy email that could be provided to the appellant; that in further exchanges in that directions hearing there was an invitation from Williams J that “it may be a way forward for an electronic copy to be provided on a USB”; that it was not disputed that the third respondent had a USB in court on that day, and offered to display the draft email on his laptop; and that Williams J raised that it could be provided to the appellant and that there were discussions as to the options going forward.
32. [32]
    Williams J found that no direction for disclosure was made by the Court and, accordingly, no relief could be granted pursuant to rule 443(d), as there had been no failure to comply with a direction.  Further, as disclosure of the relevant document was the relief sought in the amended originating application, there was merit in an argument that it was inappropriate to grant the relief sought in the interlocutory application; rather, it was appropriate to await the hearing of the amended originating application.
33. [33]
    Finally, Williams J found that whilst the appellant, in submissions, had sought to amend the interlocutory application to include an application that the electronic document be provided pursuant to rule 367 and rule 5 of the UCPR, those provisions were not substantive provisions that enabled a court to order production of particular documents, and it was not appropriate to use or rely on those provisions.

Reasons of Burns J

34. [34]
    Burns J observed that the application filed by the first, third and fourth respondents sought to set aside the originating process either pursuant to the inherent jurisdiction of the Court or UCPR rule 16(e), (g) and (i) and rule 658, but that it was not necessary to look beyond UCPR rule 16(e), although, that was a power to set aside an originating process which would only be exercised in the clearest of cases.
35. [35]
    Burns J further observed that by her amended originating application, the appellant pursued disclosure of the same electronic file and associated metadata that she had pursued in the Federal Court proceeding, which was currently under appeal, and that the appellant “made it plain that the singular purpose for the filing of the process in this court is so that she can rely on what is ordered to be disclosed or sworn in her appeal to the Full Court of the Federal Court”.
36. [36]
    After observing that both during the hearing of her interlocutory application for disclosure in the Federal Court and at the final hearing of her judicial review application in the same court, the appellant had complained about discrepancies in the recording or non-recording of the date of the draft email in different printed versions in the electronic file, raising serious questions as to the authenticity of the document, Burns J found:

“Whatever may be the provenance of the draft email included in the court application book in the Federal Court, her pursuit of the electronic file and associated metadata for it in this court is plainly an abuse of process.  Not only is [the appellant] seeking to again litigate an issue that has been litigated in another court and is now the subject of an appeal, she seeks to do so for the express purpose of aiding her prosecution of that appeal.  In this regard, it matters not that this court might in an appropriate case cross-vest Federal jurisdiction because this proceeding, wherever it is brought, constitutes a second proceeding in respect of an issue that has already been decided and is pending appeal.”

37. [37]
    Having reached that conclusion, Burns J found it unnecessary to consider in any detail the other points of objections raised by the respondents, other than to record that the jurisdictional basis for the making of the orders sought in the amended originating application was by no means apparent, and even if a disclosure order could be made, it could not be legitimately used to advance litigation in another court, as any disclosed file would be subject to an implied undertaking not to use that file for any purpose other than the proceeding itself without the leave of the Court.  Burns J also found that pleaded assertions by the appellant that each of the respondents was a party to an unlawful conspiracy, designed to cause detriment to the appellant, had no substance, and the claim was otherwise hopeless because it was legally flawed.  Accordingly, the whole of the amended originating application should be set aside as an abuse of process.

Appellant’s submissions

38. [38]
    The appellant submits Williams J erred in refusing her interlocutory application, as the third respondent had made an offer to provide the appellant with a copy of the preliminary determination letter on 16 November 2022.  As he was an officer of the Court, Williams J ought to have ordered compliance with that offer, notwithstanding that no formal direction had been made for production of that document.
39. [39]
    The appellant submits Burns J erred in setting aside the originating application, as it was not an abuse of process to commence proceedings for disclosure.  Disclosure was separate to the judicial review proceeding in the Federal Court.  Alternatively, Burns J ought to have exercised the cross-vesting jurisdiction, rather than set aside the originating proceeding, to transfer the proceeding to the Federal Court.

Respondents’ submissions

40. [40]
    The respondents submit that neither Williams J nor Burns J erred in the orders made on 24 November 2022 and 23 December 2022, respectively.
41. [41]
    The respondents submit that whilst there was a discussion before Williams J as to the ability of the respondents to provide the relevant document in an electronic form, there was no offer to do so and no court direction requiring the respondents to do so.  In those circumstances, there was no non-compliance by the respondents such as to give rise to the making of an order of the kind sought by the appellant on the interlocutory application.
42. [42]
    The respondents submit that Burns J did not err in setting aside the originating proceeding, as it was an abuse of process for the appellant to commence separate proceedings in this Court for the production of a document, for the purposes of enabling the prosecution of her appeal in the Federal Court.

Consideration

43. [43]
    Central to a resolution of both appeals is the contention by the appellant that the third respondent offered to provide an electronic version of the preliminary determination letter for forensic examination, at the directions hearing on 16 November 2022, and that that offer ought to have been enforced when the third respondent did not provide the document to the appellant, subsequent to that hearing.

Leave to adduce further evidence

44. [44]
    The further evidence sought to be adduced by the appellant in respect of the first appeal related to the listing of the appeal in the Federal Court and material obtained from the Microsoft website as to online capabilities, training and listing.  None of that material is relevant to a determination of whether Williams J was in error in refusing the appellant’s interlocutory application.
45. [45]
    That being so, there is no proper basis to grant leave to adduce that further evidence.

Leave to file Notice of Contention

46. [46]
    For the reasons that follow, it is unnecessary to consider the matters sought to be raised in the Notice of Contention.
47. [47]
    Accordingly, we would refuse leave to file the Notice of Contention.

Leave to file appellant’s amended outline

48. [48]
    On the morning of the appeal hearing, the appellant sought leave to file an amended outline.
49. [49]
    Having regard to the stage the proceedings had reached, it would be unfair to allow her to do so.
50. [50]
    Accordingly, we would refuse leave.

First appeal

51. [51]
    The appellant’s contention that the third respondent offered to provide an electronic version of the preliminary determination letter derives from an exchange which took place between Williams J and the respondents during the directions hearing on 16 November 2022, after Williams J had stated that she was not determining the substantive issue in the course of that hearing.
52. [52]
    The exchange occurred after the appellant advised that she had presented to the respondents a request that they provide a copy of the document and verification of its authenticity, so that there was no need for a final hearing.  Williams J asked the respondents to place on the record their positions.
53. [53]
    The fourth respondent advised that it was simply unable to provide that document because it did not exist; the document sought had only ever been provided to the first respondent, who was the delegate in the complaint that was raised by the appellant, “as a preliminary view and was provided to [the first respondent] as a draft email.  That view and that email was never adopted by [the first respondent] and the – the email itself is never sent independently of the email that was sent to her by Mr Timothy Tanyous, as an attachment to the email”.^[6]
54. [54]
    The fourth respondent further advised that as that preliminary document had never been sent, the first respondent was unable to explain what had happened to the document for the purposes of it appearing with a date stamp of January 2001, because it could not have had sent information on it because it had never been sent.
55. [55]
    Following that indication, there occurred the following exchange between Williams J and the third respondent:

“HER HONOUR:  Has there been any attempt to give [the appellant] an electronic copy of that version of the email which is, in effect, in draft that would include the metadata so that [the appellant], if she so chose, could have someone with technical expertise look at it?

[THIRD RESPONDENT]:  Your Honour, if I may – sorry, Mr Sharpe.  That was given to [the appellant] by me on the 4^th of July 2022.  The document provided to me by my client, who I was acting for in the Federal Court proceedings, the Information Commissioner, sent me the document.  I attached it to the email, I sent it to [the appellant] and to the Australian Government Solicitor, who’s not here but who has informed me, and I’m sure this would be something we would have evidence about if – if it went forward, and I – I want to make an application today for something different.  I’ll come to that in a moment, but when you – I think just to – to put it – the picture clearly, when you open the document in Outlook, it has no date.  When you open it in Gmail, it assigned some random date.  So all these events happened from 2020 onwards.  The document that [the appellant] is talking about has a 20 – was a 2001 date.  I had one of my fellow partners at work, for the first time ever today because this was all raised, open it in his Gmail system and it assigned the date 1970.  Apparently this is just something that happens when you open an Outlook document in Gmail.  That’s all that’s happened here.

HER HONOUR:  So there’s – hence my question though.  If it was put on a USB in its purely native format and [the appellant] accessed that, she would see it in the closest form, and in its original document, to what was on the computer screen when it was received as a draft?

[THIRD RESPONDENT]:  And I can do two things.  I have the USB because we anticipated that may have been one of the questions, and I actually have my computer, where I could open it up and show her ---

HER HONOUR:  Well ---

[THIRD RESPONDENT]:  --- the email.

HER HONOUR:  --- it might be that it can be given to [the appellant] because it … also might be that she wanted to have somebody forensically look at it, then that was – it’s a matter for her but that is – that might be the closest thing to the original document including the metadata.”

56. [56]
    The third respondent went on to state that the second respondent had never inserted a date and had not deleted any date, because there had never been a date on the email that had never been sent.  The third respondent also advised that it had all “been litigated in the Federal Court already” and that a question for Williams J was whether the application should be brought in the Supreme Court of Queensland.
57. [57]
    After a further exchange between Williams J and the appellant as to whether the appellant should be given leave to amend her originating application to include a cause of action, there occurred the following exchange:

“HER HONOUR:  … I’m asking you because what is on the USB here is an electronic copy of the original electronic document and that is what, as I understand from the discussion today, is being offered to you as a copy of the original document.

[APPELLANT]:  Firstly, I don’t even know what’s on the USB.  The second thing is again, we’ve got one step removed, [the third respondent], no one from the Commissioner’s office prepared to put their name to the document.  That to me doesn’t pass the sniff test.  Why won’t someone, [the first respondent], who received the document …”

58. [58]
    A consideration of the above exchange supports the respondents’ contention that whilst provision of an electronic copy of the draft email was discussed, there is no basis upon which it can be reasonably concluded that that discussion constituted an offer in the nature of an undertaking, such that it was enforceable.  It was in response to Williams J attempting to suggest practical solutions.  Further, at no stage during the directions hearing did the appellant accept that offer, such that it became enforceable.
59. [59]
    Once that conclusion is reached, there was no error by Williams J in dismissing the appellant’s interlocutory application on 24 November 2022.  The application was in the form of seeking an order for non-compliance with a direction that had never been given by the Court.  Williams J was not in error in concluding that there was no basis for such an order; there had been no non-compliance by any respondent in respect of a direction.
60. [60]
    Further, Williams J was correct in concluding that the UCPR provided no basis for the making of such an order.  Rule 367 and rule 5 of the UCPR are not appropriate provisions to be invoked for the granting of preliminary disclosure on an interlocutory basis.  Each is concerned with the conduct of a proceeding, not the granting of what would effectively be final relief sought by a party.
61. [61]
    The first appeal fails.

Second appeal

62. [62]
    In the hearing before Burns J, the appellant maintained her contention that there had been an enforceable offer made by the respondents to provide an electronic copy of the relevant document, to allow a forensic examination for the reasons previously discussed.  That contention was erroneous and properly rejected by Burns J.
63. [63]
    However, the ultimate issue in respect of the second appeal is whether Burns J erred in dismissing the appellant’s amended originating application on the ground that it was an abuse of process.
64. [64]
    The appellant contends that the originating application was not an abuse of process, as she was entitled to seek preliminary disclosure of a relevant document in this Court by a separate proceeding.  However, a consideration of the material relied upon by the appellant at the hearing supports a conclusion that Burns J was correct in concluding that the proceeding in this Court was brought for the purposes of advancing the prosecution of her appeal in the Federal Court.
65. [65]
    First, the appellant’s interlocutory application in the Federal Court proceedings was specifically for disclosure of the preliminary determination letter^[7] and the appellant pressed for that disclosure at the interlocutory hearing, notwithstanding a copy of the preliminary determination document having been provided to her on 4 July 2022.^[8]  The appellant pressed for that disclosure to include the metadata.^[9]  That relief was refused by Logan J.^[10]  Thereafter, the appellant continued to press her concerns in relation to the preliminary determination letter at court record book page 639, in the hearing of the judicial review application in the Federal Court.^[11]  Those concerns were referred to in the reasons for dismissing the judicial review application.^[12]  It is an abuse of process for a party to engage in litigation in different courts in respect of the same issue in dispute.  Such a process is productive of oppression and calculated to bring the administration of justice into disrepute.^[13]  This is particularly so when the appellant has exercised her right to appeal the Federal Court decision, and has raised, as a ground in that appeal, contentions in respect of the preliminary determination letter.
66. [66]
    Second, the appellant, in her own affidavit material and submissions, specifically referred to the purpose of obtaining the disclosure sought in the proceeding in this Court, namely, for it to be used in the prosecution of a pending appeal in the Federal Court.  The appellant’s amended originating application specifically stated that a copy of the document was required, as the appellant “has filed an appeal … and requires a copy of the document”^[14] and her further written submissions stated that the proceedings sought “to determine the authenticity of a document [the appellant] can rely on in an appeal”.^[15]  The appellant confirmed that was the purpose in submissions before Burns J.^[16]
67. [67]
    Once it was open to conclude that the pursuit of preliminary disclosure in this Court related to an issue which had already been raised in another court, and which was the subject of an appeal in that court, it was an abuse of process for the appellant to pursue separate proceedings in this Court, for the express purpose of aiding her prosecution of that appeal.
68. [68]
    The appellant further submitted that even if that be so, Burns J erred in not invoking the cross-vesting jurisdiction to order a transfer of the proceeding in this Court to the Federal Court.  There is no substance to this contention.  To have invoked that jurisdiction would have resulted in a second proceeding being instituted in the Federal Court, concerning the same issue, which was the subject of an appeal.  Such a proceeding would itself be an abuse of process.
69. [69]
    Finally, there was no error in Burns J’s conclusion that the suggested separate cause of action in the amended originating application was itself hopeless.  The only basis for a so-called “conspiracy to injure by unlawful means” was the failure to provide the preliminary determination letter and its associated metadata.  Such a cause of action could only have been pursued by calling into question the decision in the Federal Court proceedings.
70. [70]
    The second appeal also fails.

Orders

71. [71]
    In Appeal No 14926 of 2022, we would order:

1. Leave to adduce further evidence be refused.
2. Leave to file the appellant’s amended outline dated 16 May 2023 be refused.
3. The appeal be dismissed.
4. The appellant pay the respondents’ costs of the appeal, to be assessed on the standard basis.

72. [72]
    In Appeal No 612 of 2023, we would order:

1. Leave to file the Notice of Contention be refused.
2. Leave to file the appellant’s amended outline dated 16 May 2023 be refused.

3. The appeal be dismissed.
4. The appellant pay the respondents’ costs of the appeal, to be assessed on the standard basis.