McEwan v Clark[2023] QCA 147

[2023] QCA 147

COURT OF APPEAL

BOND JA

Appeal No 5562 of 2023

SC No 15660 of 2022

JULIE McEWANAppellant

v

JANINE CLARKFirst Respondent

AUSTRALIAN TAXATION OFFICESecond Respondent

ANTHONY RAINSThird Respondent

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONSFourth Respondent

ROBERTA DEVEREAUXFifth Respondent

BRISBANE

MONDAY, 24 JULY 2023

JUDGMENT

BOND JA:  A large part of the factual background of the present application is set out in the decisions in:

1. (a)
   appeal 611 of 2023, namely McEwan v Clark & Ors [2023] QCA 120; and
2. (b)
   appeal 12599 of 2022, namely McEwan v Rains & Ors [2023] QCA 135.

Further factual background is set out in the second affidavit of Ms Lewis.

I will not seek to recapitulate the factual background in detail.  The principal steps, however, must be mentioned.

By originating application filed 3 August 2022 the appellant commenced a proceeding in the Supreme Court which served a permanent stay of certain criminal proceedings.  The appellant contended that the continuation of those proceedings was oppressive, involved prosecutorial misconduct, involved the court’s procedures for an illegitimate purpose and brought the administration of justice into disrepute.  It is convenient to refer to this proceeding, which is proceeding 9181 of 2022, as the permanent stay application.

At the time the appellant filed her permanent stay application a committal hearing in the Magistrates Court in relation to the charges which the appellant had faced had been listed to commence in October 2022.

On 13 December 2022, the appellant filed an originating application in the Supreme Court of Queensland in proceeding 15660 of 2022, seeking, amongst other things, to have the committal proceeding delisted.  The Magistrates Court committal proceeding had been listed to be heard on 8 May 2023.  A disclosure hearing in that court was to be held on 9 March 2023.

On 21 December 2022, Boddice J disposed of the originating application.  His Honour:

1. (a)
   dismissed the application for the committal proceeding to be delisted;

2. (b)
   dismissed the applications for disclosure;
3. (c)
   ordered that the appellant not file any further application in the Supreme Court in relation to the committal proceeding presently being heard in the Magistrates Court of Brisbane without the leave of that court; and
4. (d)
   ordered the appellant pay the eighth and ninth respondent’s costs of the application.

By notice of appeal dated 17 January 2023, the appellant sought to have the orders made by Boddice J set aside and sought leave to file an originating application seeking orders that the committal hearing be delisted and that the relevant prosecutions be “lifted out of the Magistrates Court and placed on the Supreme Court Supervised Case list.”  That is appeal 611 of 2023 which was argued on 17 April 2023.

On 4 May 2023, appeal 611 of 2023 had not been determined, yet the committal hearing in the Magistrates Court was still pending; indeed, it was imminent.  The appellant filed an urgent interlocutory application within proceeding 15660 of 2022, which had been determined by Boddice J and which was subject to the as yet undetermined appeal.  She sought an injunction prohibiting the Brisbane Magistrates Court from proceeding with the committal listed for 8 May 2023 and orders that the committal be delisted and temporarily stayed until:

1. (a)
   the outcome of appeal 611 of 2023; and

2. (b)
   the outcome of the permanent stay application.

That application failed, and in an ex tempore judgment on 4 May 2023 Bowskill CJ ordered that the application be dismissed and that the appellant pay the first to sixth respondent’s costs of the application on the standard basis.  The following observations may be made about her Honour’s reasons for judgment:

1. (a)
   Her Honour noted that the application had been brought without leave being sought or obtained, contrary to the order of Boddice J, but dealt with the application on the merits, not on the basis that she simply refused leave to hear it.

2. (b)
   Her Honour dealt with the application on the basis that the appellant had to show a prima facie case that at a final hearing she would be entitled to a stay of the committal proceedings and that the balance of convenience favoured the grant of such an order.
3. (c)
   Her Honour assumed, without deciding, that the Supreme Court had the power to order a stay of committal proceedings but noted that even if there was such a power it would be done only in very rare circumstances.
4. (d)
   Her Honour said that the hurdle to be met for the stay of committal proceedings was necessarily higher than the hurdle to be met for the stay of the trial, because the former was only an administrative process assessing whether there was sufficient evidence to warrant the criminal proceeding to continue.
5. (e)
   Her Honour said the considerations to be balanced included the substantial public interest in having those charged with criminal proceedings brought to trial and the obvious public interest of fairness to the accused.  Her Honour noted that appeal 611 of 2023 had not been determined, but thought that even if the outcome in that appeal ultimately favoured the appellant, she would not be prejudiced so far as her ultimate potential liability for criminal charges might be concerned.
6. (f)
   Her Honour referred to but found not to be compelling a confused argument that the appellant had advanced concerning the impact of alleged breaches of bail on the committal proceeding, and a statement and the appellant had sought some form of remedy in the High Court of Australia.
7. (g)
   Her Honour thought that she was not at all persuaded that there was any real prospect of a permanent stay of the committal proceeding being granted.  Her Honour observed that she would have had to be persuaded of a strong probability of success given the fact that the balance of convenience overwhelmingly favoured refusing the interim relief because of the essential administrative nature of the committal proceeding.

On 5 May 2023, the appellant filed a notice of appeal from the orders made by Bowskill CJ seeking orders that the appeal be allowed and that the orders made by her Honour be set aside.  That appeal is appeal 5562 of 2023 and may be referred to as the present appeal.  The form of notice of appeal has been slightly changed since then, but in its current form seeks three orders:

1. (a)
   the appeal be allowed;

2. (b)
   the orders of the primary judge be set aside; and
3. (c)
   costs.

The committal hearing appears to have been heard in the Magistrates Court at Brisbane from 8 May 2023 to 10 May 2023, although I see there are different dates  identified in the appellant’s material.  It matters little.  What is clear is the orders were made committing the appellant for trial.

On 26 May 2023 the appellant filed an application in the trial division of the Supreme Court of Queensland seeking relief under the Judicial Review Act 1991, amongst other things, quashing or setting aside the order of the Magistrates Court committing her for trial.

On 2 June 2023, the Court of Appeal dismissed the appeal from the orders of Boddice J and published detailed reasons for judgment.  It is at present relevant to note that the court held that beyond mere assertion by the appellant, there was no evidence of anything approaching the sort of exceptional circumstances that might justify the Supreme Court interfering in such a way that it would fragment criminal proceedings in another court.

Pursuant to r 16 of the Uniform Civil Procedure Rules, the first to fifth respondents to the present appeal applied to stay or strike out the appeal on the basis that:

1. (a)
   it is unnecessary and inutile in circumstances where the committal hearing the subject of the proceedings has already taken place;

2. (b)
   it otherwise discloses no reasonable cause of action; and
3. (c)
   it is scandalous or frivolous.

I heard argument from the respondents in support of that order.

In her responsive submissions the appellant made an oral application to amend the notice of appeal in the present appeal by adding an order that the committal order made in the Magistrates Court be set aside and the committal proceeding be reheard in the Magistrates Court.  I stopped the respondent from further presenting her argument responding to the respondents’ application.  She advised me that the order that she sought to obtain by amendment to the notice of appeal was not her only basis for resisting the application, but I indicated that I would first hear whether or not I would permit the amendment to take place.

As mentioned, the amendment application was made orally and without notice.  In support of the application, the appellant’s argument ranged beyond matters that were relevant in any way to the application.  Essentially, she said that no prejudice would be caused to the respondents.  She submitted that there was jurisdiction for the Court of Appeal to hear such an appeal and that the present appeal was an appropriate vehicle for that.

I heard submissions from by the respondent’s counsel opposing the grant of leave to amend.  He pointed out that the principle case upon which the appellant relied in support of her argument that there was jurisdiction – namely, Elwood v Director of Public Prosecutions [2023] NSWSC 772 – was based upon a different statutory regime.  He submitted that there was no jurisdiction in the Court of Appeal to hear an appeal from a committal order, and that the appropriate course for a litigant disappointed in the process by which a committal order was obtained was that which the appellant had actually taken, namely to seek judicial review of the committal order.  He said it was an abuse of process to seek to amend the notice of appeal in the present appeal in the way sought.  He pointed out that there was no obstacle, apart from the fact that the appellant would potentially need an extension of time, to the appellant seeking to advance a separate appeal from the committal orders if she was right to contend that there was such a jurisdiction in the Court of Appeal.

In my view, the appellant’s attempt to completely change the nature of the present appeal by making it an appeal, not from the orders of Bowskill CJ, but from the orders made in the Magistrates Court, is one which I would not allow in the exercise of my discretion.  The appropriate procedural course, if there is such a jurisdiction – which I presently strongly doubt – is for a separate notice of appeal to be filed by the appellant which seeks to appeal from the orders made in the Magistrates Court.

Accordingly, I dismiss the oral application for leave to amend the notice of appeal in the present appeal.

…

In my reasons for refusing an oral application made by the appellant for leave to amend the notice of appeal in the present appeal, I identified the relevant facts necessary to deal with the present application.  As I mentioned in those reasons, the present application is the application of the first to fifth respondents to stay or strike out the appeal on the basis that it is unnecessary and inutile, that it discloses no reasonable course of action, and that it is scandalous or frivolous.

There is no doubt that Court of Appeal may stay or strike out appeals without hearing them in appropriate cases.  In their written submissions the respondent advanced, essentially, two justifications for the order they sought.  First, that the appeal is now inutile, given that the Magistrates Court has already made orders committing the appellant for trial; second, although phrased as “no reasonable course of action”, the contention was that there is, essentially, no reasonably arguable basis for the appeal.  In oral argument, they contended that it was necessary to focus only on the first justification.  I agree.

The appellant’s response, both orally and in writing, was first to focus more generally on what she characterised as the various aspects of procedural unfairness in the way the courts have responded to her various attempts to have the Supreme Court bring the Magistrates Court criminal proceedings to an end, one way or the other.  Most of those complaints may be ignored, as it is necessary to focus only on the issues which are material to the question whether the present appeal should proceed.

When the appellant’s argument did focus on the question whether there was any merit in the continuation of the present appeal once a committal order has already been made, it became apparent that the appellant thought that that present appeal might provide a vehicle for overturning the committal orders made in the Magistrates Court.  That thinking ultimately expressed itself in the application for amendment to the notice of appeal that I earlier dismissed.  Ultimately, in the course of her oral argument, the appellant conceded that if the application to amend the notice of appeal was disallowed, the present appeal could not be a vehicle by which orders could be made to set aside the committal orders.

The respondents were right to contend that there is no utility in the present appeal and that it should be struck out.

First, given the fact that the committal proceeding has occurred, there is no merit in entertaining argument addressed at setting aside orders which dismissed an application for orders to prevent the committal proceeding occurring.  Those arguments are now moot.  There is no point to set aside orders which simply dismissed an application.

Second, there is a theoretical basis on which it could be contended that there was practical merit in considering whether there was error and dismissing the application, namely, to challenge the cost orders, but the appellant did not make a submission that the appeal should be allowed to continue for that reason.

Third, even if she had, this Court in appeal 611 of 2023 made the finding concerning the absence of anything demonstrating the sort of exceptional circumstances that might justify interference in a way that would fragment committal proceedings, to which I have earlier adverted.  It was not contended that there was any better evidence before Bowskill CJ than there was before the Court of Appeal.  Absent such evidence, even if it could have been demonstrated that her Honour’s discretion miscarried for some reason, any fresh exercise of the discretion by this Court would inevitably have resulted in dismissal of the application for injunctive relief, there being absolutely no utility in it.  Her Honour’s observations concerning balancing an assessment of the strength of the appellant’s prima facie case that at a final hearing she would be entitled to a stay of the committal proceedings against the fact that the balance of convenience strongly favoured refusal were plainly right and favoured dismissal.

I make the following orders:

1. (a)
   The appellant’s appeal in proceeding 5562/2023 is struck out.

2. (b)
   The appellant must pay the first to fifth respondent’s costs of the appeal.