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CITE

Unreported Judgment
Appeal Determined (QCA)

McEwan v Commissioner of Taxation[2022] QSC 279Freeburn J
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McEwan v Commissioner of Taxation[2022] QSC 279

SUPREME COURT OF QUEENSLAND

CITATION:	McEwan v The Commissioner of Taxation [2022] QSC 279
PARTIES:	JULIE McEWAN (plaintiff) v THE COMMISSIONER OF TAXATION (first defendant) AND ANTHONY RAINS (second defendant) AND THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (third defendant) AND ROMAN MICAIRAN (fourth defendant) AND KATIE LUKIN (fifth defendant) AND JESSICCA WILLIAMS (sixth defendant) AND ROBERTA DEVEREAUX (seventh defendant) THE STATE OF QUEENSLAND (eleventh defendant)
FILE NO/S:	971 of 2022
DIVISION:	Trial
PROCEEDING:	Application on the papers
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	12 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Freeburn J
ORDERS:	The plaintiff have leave to amend her fourth revised statement of claim (the statement of claim) on or before 24 December 2022 in the following respects: a.to clarify the date, or dates, at which the plaintiff contends the proceedings were instituted without reasonable and probable cause and maliciously; b.to identify the “considerable evidence that exculpated Ms McEwan” referred to in paragraph 23 of the statement of claim and the “exculpatory evidence” or other similar expressions used in paragraphs c.to clarify whether the plaintiff’s case is that there was no evidence that supported the prosecution case, and there was a substantial body of evidence that pointed to her innocence of the charge; d.to identify precisely the facts relied on to prove malice; e.to deal with the problem of the open-endedness created by the use of the word “including” in paragraphs 28(a)(i), 31(a)(i), 35(a)(i), 39(a)(i), 43(a)(i) and 110 of the statement of claim; f.to deal with the problem created by the words “ought reasonably to have known” in paragraph 40(d) of the statement of claim; g.to deal with the problem that the allegations in paragraphs 79, 84, 89, 94, 99 and 104 of the statement of claim appear to raise an issue about Mr Rains (and the other officers) being in a position of a conflict of duty and duty, but the conflict is not identified and relevance is not explained. On or before 24 December 2022 the plaintiff provide particulars (as part of her amended statement of claim directed by order 1 above) that supply the particulars requested by the first to seventh defendants (the Commonwealth defendants) in their requests numbered 1 to 30 inclusive. The Commonwealth defendants have leave to amend their defence on or before 28 January 2023 in the following respects: a.paragraph 23 - so as to deal with the problem of the open-endedness created by the use of the word “including” in paragraph 23(b) and in the chapeau to the particulars to paragraph 23; b.paragraph 24 - so as to clarify whether Commonwealth defendants deny the receipt of the no-case submissions and deny the sending and receipt of the Fogerty no-case submission; c.paragraph 32 - so as to positively plead to the allegations that Mr Rains altered the spreadsheet and that he made the alterations alleged by the plaintiff; d.so as to properly plead to paragraphs 40(c), 44(c), 48(c) and 52(d) of the statement of claim; e.so as to positively plead to paragraph 52(b) of the statement of claim. On or before 28 January 2023 the Commonwealth defendants provide particulars (as part of the amended defence directed by order 3 above) that: a.in respect of paragraph 22 of their defence, identify the part of the Second Mactaggart QPS Statement which refers to how part of the BA Investment was spent; b.in respect of particular (d) in the particulars to paragraph 23 of their defence, identify the “business plan” referred to and provide a copy to the other parties pursuant to UCPR 222. The eleventh defendant (the State) have leave to amend paragraphs 18, 24, 25, 26, 32, 44 of its defence. The proceeding be listed for review on the Supervised Case List for Self-Represented Litigants on 9 February 2023, at 9:00am. Costs be reserved.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PRACTICE AND PROCEDURE – application for further and better particulars – where a number of applications by various parties were made for further and better particulars of each other’s pleadings – Where there are some problems with the pleadings – whether the requests for further and better particulars ought to be accepted or dismissed Uniform Civil Procedure Rules 1999 (Qld) r 149, r 155, r 157 Robertson v Hollings [2009] QCA 303, applied Bayliss v Cassidy (No 2) [1998] QCA 38, applied
COUNSEL:	J McEwan for herself M Wilkinson and O Cook for the first to seventh defendants J Prior (sol) for the eleventh defendants
SOLICITORS:	J McEwan is self-represented Australian Government Solicitor for the first to seventh defendants Crown Law for the eleventh defendant

REASONS

INTRODUCTION

[1]
A broad collection of entities, called Brisbane Angels,^[1] had an interest in providing funds for start-up investment projects, with a particular focus in biotechnology. The Brisbane Angels decided to invest $185,000 in a weight loss project operated by Ms McEwan (and entities associated with her). That project was called the Carbstarver project. Ms McEwan says she reconciled her use of the $185,000 investment by means of an acquittal spreadsheet on 16 August 2017. A year later, however, Ms McEwan was charged with fraud. She was committed for trial in the District Court on 10 December 2019. No case submissions were made on 8 July 2019, 19 March 2020, and 28 August 2020. Eventually, on 12 May 2021, a nolle prosequi was entered.
[2]
Ms McEwan now sues the first to seventh defendants (the Commonwealth defendants) for malicious prosecution and misfeasance in public office. On similar causes of action, she also sues the remaining defendant, the State of Queensland. The State is sued as being vicariously liable for the actions of a Queensland police officer, the Queensland Director of Public Prosecutions (DPP) and Ms McGregor, a legal officer within the DPP.
[3]
This case is being managed on the Supervised Case List for Self-Represented Litigants (SRL).
[4]
There are a number of applications by various parties for further and better particulars of each other’s pleadings. It is necessary to deal with each application for particulars in turn.

General Principles

[5]
In doing so, it is necessary to bear in mind these general principles:
1. each pleading must be brief, and must contain a statement of all of the material facts on which the party relies, but not the evidence by which those material facts are to be proved;^[2]
2. there is an important distinction between material facts (such as the fact of a contract, or a breach etc) and the evidence by which those facts are to be proved. The former comprises the bare elements of the cause of action whilst the latter comprises details which will assist in proof of the elements;
3. the pleading must also state those matters which, if not stated specifically, may take the opposite party by surprise;^[3]
4. if damages are claimed in a pleading, the pleading must state the nature and the amount of the damages claimed;^[4]
5. a party claiming general damages must state particulars of the nature of the loss or damage that was suffered, the exact circumstances in which the loss or damage was suffered and the basis on which the amount claimed has been worked out or estimated;^[5]
6. particulars should be included in a pleading where they are necessary to define the issues for the trial and to prevent surprise at the trial; the purpose of particulars is to add context and depth to the pleaded material facts – particulars are not evidence but are clarification.^[6]
[6]
Pleadings, of course, serve the purposes of procedural fairness. They enable the opposite party to know the case they must meet at trial.
[7]
As Ms McEwan is self-represented it is relevant to note a case referred to by the Commonwealth defendants. In Robertson v Hollings^[7] Keane JA (with whom Fraser JA and Cullinane J agreed) said:

As to grounds 1 and 3 of the amended notice of appeal, litigation is not a learning experience. The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. It is no doubt unfortunate for Mrs Robertson that she does not have the benefit of competent legal advice and representation; but her misfortune in this regard does not license her to proceed unconstrained by the rules according to which adversarial litigation is conducted.

Some Problems with the Pleadings

[8]
Here, Ms McEwan’s principal case is that she is entitled to damages because of the malicious prosecution of the Commonwealth defendants and the State of Queensland. The five elements of that cause of action are as follows:
1. Ms McEwan was prosecuted by the defendants – i.e. the legal process was set in motion against her on a criminal charge;
2. Those criminal proceedings were resolved in her favour;
3. The proceedings were instituted without reasonable and probable cause;
4. The defendants instituted the proceedings maliciously; and
5. Ms McEwan suffered loss and damage as a result.^[8]
[9]
Ms McEwan’s pleading of those elements is not easily discerned from her statement of claim.^[9] Some elements are rather obscure, and some are expressed at a level of generality. For example, in paragraph 23 of her statement of claim Ms McEwan says this:

In the premises, neither the CDPP nor the DPP had any evidence that could reasonably support the QPS Charge but did have considerable evidence that exculpated Ms McEwan of the charge and disclosed lines of defence that was no case to answer on multiple occasions.

[10]
The first part of that paragraph is an allegation that the CDPP and the DPP had no evidence that could reasonably support the QPS charge. The second part of the paragraph pleads that both the CDPP and the DPP possessed “considerable evidence” that exculpated Ms McEwan. That exculpatory evidence needs to be identified. The possession of that exculpatory evidence by the CDPP and DPP is, presumably, a material fact that Ms McEwan relies on to establish the third element identified above, namely that the proceedings were instituted without reasonable and probable cause.
[11]
The paragraphs that precede paragraph 23 give some hints as to what may be the exculpatory evidence that Ms McEwan refers to. In paragraphs 21 and 22, Ms McEwan refers to three categories of evidence: the Apagein Documents, the BA ATO statements and the BA QPS statements. However, only the first of those categories is said to demonstrate that the money was spent in accordance with the acquittal, and therefore not spent fraudulently by Ms McEwan. The second and third categories of statements are not pleaded as being exculpatory. They are merely pleaded as making no allegations as to how the money was spent and are said not to contend that Ms McEwan spent the money for her own personal use. It is possible that Ms McEwan wishes to contend that this evidence is exculpatory. However, it is difficult to see how that can be so. An absence of evidence as to expenditure is just that, an absence of evidence.
[12]
That leads to another of the difficulties with Ms McEwan’s pleading. As explained, the third element of the cause of action is that the proceedings were instituted, or prosecuted, without reasonable or probable cause. That requires focus on a specific date at which the prosecution of the proceeding was without reasonable or probable cause.
[13]
Subject to an issue I will raise in a moment, that focus on a specific date requires a weighing of the evidence known to the defendants at that specific point in time. Subsequent evidence might come to light either establishing innocence or guilt. That will not assist the claim of malicious prosecution. The question is whether there were reasonable grounds at the relevant time when the decision was made to prosecute, or to continue a prosecution, in spite of the absence of reasonable cause.
[14]
Viewed in that way, paragraph 23, and much of the narrative in Ms McEwan’s statement of claim, obscures rather than elucidates the real issues. I say that because paragraph 23 of the statement of claim does not identify any specific date. The context in which paragraph 23 appears, particularly paragraphs 19 to 22, suggest that paragraph 23 is focussed on the period after March 2019.^[10] However, the subsequent paragraphs refer to events that occurred over a two-year period, namely in August 2018, July 2019, March 2020 and August 2020.^[11]
[15]
There is another problem with paragraph 23. When paragraph 23 is read, it seems to put Ms McEwan’s case in a rather black and white way. Paragraph 23 suggests that Ms McEwan’s case is that:
1. the prosecution possessed no evidence that could reasonably support the charge; and
2. the prosecution possessed “considerable evidence” that exculpated Ms McEwan of the charge.
[16]
In other words, the case is that there was no evidence that supported the prosecution case, and there was a substantial body of evidence that pointed to her innocence. It is unclear whether that is Ms McEwan’s intention in the pleading. Some parts of the pleading, and Ms McEwan’s requests for particulars, support that strong case. Other parts of the pleading and the requests support the idea that Ms McEwan’s real case is that on the basis of a weighing exercise, the predominance of the evidence supported her innocence. That lack of clarity is a problem.
[17]
The plea of commencing or continuing the prosecution in the absence of reasonable and probable cause gives rise to some further problems. Ms McEwan is obliged to plead and prove that element. The issue is in contest in that the Commonwealth defendants and the State defend on the basis that they did have reasonable and probable cause. Some older cases suggest that, in a malicious prosecution case, a settled practice is that particulars are not usually ordered where the defendant positively asserts that there was reasonable and probable cause.^[12] That rationale for that practice is that it is for the plaintiff to show a want of reasonable and probable cause. For present purposes though, the need to avoid surprise^[13] means that it is not appropriate to reject Ms McEwan’s requests for particulars merely on the basis of that rule of practice.
[18]
Another problem is the plea of malice – the fourth of the five elements of malicious prosecution. Such a plea is a serious matter requiring Ms McEwan to identify and prove a level of conduct so as to make out the plea.^[14] It is doubtful that this aspect is pleaded in a way that is clear for the parties and for the court.
[19]
Some of these issues arise in the discussions of particulars below. However, clarity is needed. For that purpose, Ms McEwan should have leave to amend to address the aspects identified above.
[20]
There are three broad groups of particulars requested. Ms McEwan has requested particulars from the Commonwealth defendants, the Commonwealth defendants have requested particulars from Ms McEwan, and Ms McEwan has requested particulars from the State. It is necessary to deal with each in turn.

MS MCEWAN’S REQUEST OF THE COMMONWEALTH DEFENDANTS

Request 5(c)^[15]

[21]
Ms McEwan asks for particulars as follows:

“When did the defendants first become aware the Brisbane Angels (BA) obtained information from the plaintiff for the purpose of pre-investment due diligence”.

[22]
That request refers to paragraph 5(c) of the statement of claim which pleads:

“(c) Ms McEwan gave, subject to confidentiality protections, all confidential information regarding the Therapeutic (Confidential Information) to the BA via its agent Mr Monaghan for the purposes of pre-investment due diligence”.

[23]
And so, Ms McEwan’s allegation is that she gave certain information to BA. That allegation is not admitted by the Commonwealth defendants. Curiously though, Ms McEwan seeks particulars of when each of the first to seventh defendants came to be aware of that communication.
[24]
There are numerous problems. The first is that the Commonwealth does not admit the fact of the communication. Thus, the request assumes that the Commonwealth concedes that there was such a communication between Ms McEwan. The Commonwealth does not admit that. The second is that it makes no sense for Ms McEwan to ask for particulars of a non-admission. The third is that what Ms McEwan seeks to do is to have the Commonwealth answer some questions about her own allegation. The evident purpose of the request seems to be to require the Commonwealth defendants to make admissions about when they first became aware of this communication by Ms McEwan to BA.
[25]
That is not a proper request for particulars.
[26]
In any event, it is difficult to see the relevance of Ms McEwan’s request. When the various defendants became aware of the communication hardly seems to matter. Perhaps Ms McEwan will contend that this is relevant to the element that the proceedings were instituted without reasonable and proper cause. That is not clear. Certainly, on a broad reading of the statement of claim it appears that this communication occurred sometime before August 2017 and yet the prosecution of the proceedings against Ms McEwan occurred the following year.
[27]
In any event, the request is not a proper request for particulars of the Commonwealth defence. It is a question designed to secure some evidence rather than particulars – and that evidence may or may not be relevant.

Request 5(e)

[28]
This request asks: “When did the defendants first become aware the Brisbane Angels valued the plaintiff’s confidential information relating to Carbstarver at $8,000,000, and the value under the terms of the Term Sheet was $4,000,000 (pre-money) which was discounted by 50%.” This is a similar request to Request 5(c). It asks for the defendant’s knowledge of the value attributed to confidential information by Brisbane Angels. That can hardly be relevant to the weighing exercise referred to above.
[29]
As with request 5(c), paragraph 5(e) is not admitted. That means that the non-admission is not susceptible to a request for particulars.

Request 5(f)

[30]
This is a request for “further particulars to paragraph 5 (f) (iii) business management plan:
1. when did the defendants first receive the Financial Models spreadsheet prepared by Mr Monaghan dated 10 November, 2016;
2. who provided the Financial Models spreadsheet to each of the defendants.”
[31]
Those requests are directed to a partially admitted allegation. The Commonwealth defendants admit the investor agreements. The point of the questions is therefore difficult to understand. Indeed, it may be that, for some of the defendants, the answer will be that the solicitors for the Commonwealth provided the documents to them in the course of the conduct of this case.
[32]
As with the previous requests, this request seeks evidence.

Request 10

[33]
Ms McEwan asks that the Commonwealth defendants provide further particulars of paragraph 10(a) of her pleading. It is necessary to set aside for the moment the problem that Ms McEwan is seeking particulars of an allegation in her own pleading, and the further problem that the allegation is denied.
[34]
The particular allegation, denied by the Commonwealth defendants, is that Mr Rains, an ATO employee, gave information to the BA parties that Ms McEwan had misappropriated the BA investment of $185,000 by using it to pay for her personal expenses. Ms McEwan asks: “who from the ATO gave information to the Brisbane Angels that the plaintiff had misappropriated the Brisbane Angels investment of $185,000 as particularised in the QP9 facts of the charge?”
[35]
That is plainly a matter of evidence. It may be that Ms McEwan says that this evidence is relevant to the third of the five elements of the cause of action, namely: proceedings were instituted without reasonable and probable cause. However, that is difficult to properly assess because, as explained, it is not clear at what point Ms McEwan says that the prosecution did not have reasonable and proper cause and, in any event, this is said to be a communication by the ATO to the BA.
[36]
Possibly the communication is said to be some evidence of malice but, again, that is unclear.
[37]
In any event, as mentioned, the request is for particulars of an allegation made by Ms McEwan herself. And it is a request for particulars of an allegation by Ms McEwan that is denied by the Commonwealth defendants. This is not a proper request for particulars.
[38]
Ms McEwan also asks:
1. “when did the first and second defendant's identify the plaintiff spent the Brisbane Angels investment of $185,000 on a personal loan and other expenses”; and
2. “how did the first and second defendants identify the plaintiff spent the Brisbane Angels investment of $185,000 on a personal loan and other expenses;”
3. “What documents did the first and second defendants have in their possession to verify the plaintiff spent the Brisbane Angels investment of $185,000 on a personal loan and other expenses.”
[39]
In those three questions, Ms McEwan attempts to attack the veracity of the information held by the Commonwealth defendants. When and how the defendants came to acquire the information is not strictly relevant to the weighing of the evidence exercise referred to above. However, the last of those questions, and a subsequent request by Ms McEwan, raise an issue concerning the particularity in the Commonwealth’s defence.
[40]
As explained, Ms McEwan’s allegation in paragraph 23 of her statement of claim is that the CDPP and the DPP:
1. did not have any evidence that could reasonably support the QPS charge; and
2. did have considerable evidence that exculpated Ms McEwan of the QPS charge and disclosed lines of defence that were plainly open to defeat the charge.
[41]
The defence of the Commonwealth defendants denies paragraph 23 without distinguishing between those two limbs of paragraph 23. Focussing for the moment on the first limb, the denial of the first limb of paragraph 23 leaves the Commonwealth defendants in the position where they have denied a negative allegation. That denial is, to use the language of McPherson JA in Bayliss v Cassidy (No 2)^[16], a negative pregnant with an affirmative allegation. Particulars of such a traverse should be given where the real nature of the traverse is in doubt.^[17]
[42]
Here, by denying that the CDPP and the DPP did not have any evidence that could reasonably support the QPS charge, the Commonwealth defendants are, in reality, positively asserting that there was a body of evidence that reasonably supported the QPS charge. The double negative requires proper particulars.
[43]
As it turns out, the Commonwealth defendants have provided particulars of the evidence that it contends reasonably supports the QPS charge. Those particulars are set out under the heading ‘Particulars’ in paragraph 23. Those particulars are numbered (a) to (w). Those particulars properly identify the evidence that the Commonwealth defendants contend was available to the CDPP and the DPP and which reasonably supported the QPS charge.
[44]
Ms McEwan’s questions appear to delve further, inquiring as to when and how and by what documents the fraud was disclosed. In so far as Ms McEwan enquires further she is really seeking detail that comprises evidence rather than material facts.
[45]
The denial by the Commonwealth defendants of the second limb to paragraph 23 means that those defendants are contesting the allegation that they had ‘considerable evidence’ that exculpated Ms McEwan of the QPS charge. That is an allegation that they are entitled to deny. At trial the allegation may be proved or not proved. It is Ms McEwan who is required to identify what she contends is the ‘considerable evidence’ that exculpated her of the QPS charge and disclosed lines of defence that were plainly open to defeat the charge. Once that is done, the defendants will be required to plead to each aspect.
[46]
It is worth noting that one aspect of the management of this case that may assist the efficient conduct of the trial is the proper identification, in advance of the trial, of the evidence held by the CDPP and the DPP on the date or dates when Ms McEwan contends the institution or continuation of the proceeding was without reasonable and probable cause.

Request 11

[47]
In paragraph 11 of the statement of claim Ms McEwan alleges that in May 2018 the lawyer representing the BA parties, Ashley Hill of GRT Lawyers, arranged for the return of the Apagein Documents and the retaking of those documents by Mr Rains (the second defendant) on behalf of ATO by search warrant. The allegation seems peripheral. It does not appear to be a material fact which addresses any of the elements of the cause of action. It is even doubtful that the allegation, if true, demonstrates the fourth of the elements of the cause of action, namely that the proceedings were instituted maliciously.^[18]
[48]
The Commonwealth defendants deny the allegation. The explanation for the denial is that Mr Hill did not act as alleged, and Mr Rains did not ‘retake’ any documents as alleged. As to the second aspect, Ms McEwan asks for these particulars:
1. Why did the second defendant take the “Apagein Documents” without a warrant from the Brisbane Angels in April 2018?
2. Why did the second defendant “hand back” the documents to the Brisbane Angels on 6 June 2018?
3. Why did the second defendant retake via a warrant the “Apagein and other documents” on 6 June 2018 at the offices of GRT arranged between the second defendant and Ashley Hill, partner GRT.
[49]
As can be seen, those three questions are really challenges to the veracity of the denial by the Commonwealth defendants. A request that comprises a request for details of an explanation for a denial under UCPR 166(4) would not ordinarily be appropriate. The explanation for the denial does not create an issue of fact for determination at the trial and, accordingly, a request for production of documents pleaded as part of such an explanation or a request for particulars of such an explanation would ordinarily be refused. On the other hand, a party may plead an explanation for dual purposes, namely:
1. so as to comply with the requirement for an explanation under UCPR 166(4);
2. but also to rely on what is pleaded in the explanation to advance a positive case and to comply with the obligation under UCPR 149(1)(c) to plead facts which, if not stated specifically, might take another party by surprise.
[50]
If facts pleaded in an explanation are relied on for those dual purposes, then it is perfectly legitimate for an opponent to subject them to ordinary interlocutory scrutiny, including by requests for further particulars.^[19] Here, however, there appears to be no ‘dual purpose’ to the explanation. The explanation does little more than say, in effect, the allegation is denied because those events did not occur as alleged in the statement of claim. It follows that this is not a proper request for particulars.

Request 16

[51]
Paragraph 16 of the statement of claim alleges that, as a result of BA’s fraud complaint, on 22 August 2018 the QPS charged Ms McEwan with one count of fraud. The Commonwealth defendants deny the allegation. However, the explanation for the denial contends that:
1. On 22 August 2018, Ms McEwan was charged by way of complaint and summons filed in the Magistrates Court with an offence which the Commonwealth defendants set out verbatim – but which in substance is a fraud offence;
2. On 10 December 2019, there was a committal in the Magistrates Court at which Ms McEwan was committed to stand trial in the District Court of Queensland;
3. On that occasion the Magistrate made certain statements which the Commonwealth defendants quote, including to the effect that Ms McEwan had a case to answer.
[52]
Ms McEwan asks three questions by way of requests for particulars, namely:
1. Why did the QP9 facts of the charge state the ATO investigation revealed Ms McEwan spent the Brisbane Angels investment of $185,000 on a personal loan and other expenses;
2. As per the QPS charge and particulars, how did the defendants verify the plaintiff spent the entire Brisbane Angels investment on a personal loan and other expenses and nothing on the weight loss project;
3. What investigations did the defendants undertake to verify that the plaintiff spent the entire Brisbane Angels investment of $185,000 on personal items.
[53]
The first problem is that none of those questions are really requests for particulars of the defence of the Commonwealth defendants. They are really attempts at cross-examination based on what Ms McEwan asserts in her statement of claim. The second problem is that that the questions are really directed at evidence rather than material facts. For example, the inquiry asking what investigations were undertaken by the Commonwealth defendants really seeks evidence of what Ms McEwan plainly contends was an inadequate investigation. Proof that the investigation was inadequate may be relevant evidence, but it is not directed to the material fact, namely whether the CDPP and the DPP persisted with the charges in circumstances there was no reasonable evidence supporting the charges or where the evidence was predominantly exculpatory. In other words, the real issue is not the level of the investigation but whether the proceedings were instituted, or pursued, without reasonable and probable cause.
[54]
It follows that these are not proper requests for particulars.

Request 22

[55]
Paragraph 22(c) of the statement of claim has two limbs. First, it is alleged that the BA QPS Statements made no allegations as to how the BA Investment was spent. Second, it is alleged that the BA QPS Statements failed to allege that the BA Investment was spent by Ms McEwan for her own personal use.
[56]
The Commonwealth defendants deny the allegation and, pursuant to UCPR 166(4), provide an explanation for that denial by asserting that the Second Mactaggart QPS Statement did, in fact, refer to how part of the BA Investment was spent.
[57]
In paragraph 23 of their defence, under the heading ‘The transactions on 28 December 2016 and following’ the Commonwealth defendants particularise the relevant transactions. At subparagraph (w) the Commonwealth defendants draw the following conclusions from the transactions:
1. It can be inferred that the plaintiff intended to transfer the funds received by Apagein Biotech to the Trembath Account, as the plaintiff’s transferred $200,000 from Account 1 (which comprised the entire $185,000 of the BAN Funds) to Account 2, and then to the Trembath Account.
2. On 28 December 2016, at least $72,500 of the sum transferred from Account 2 to the Trembath Account had to originate from the BAN Funds.
3. The Term Sheet did not permit Ms McEwan to pay herself consultancy fees and she knew the same.
4. The intermingling of funds from Account 1 to Account 2 and the use of such intermingled funds for expenses in the names of the plaintiff, the plaintiff’s family members, and Mr and Mrs Trembath, permits the reasonable inference that the funds were dishonestly applied for the plaintiff’s own use;
5. More than $30,000 of the BAN Funds were reasonable and probably dishonestly applied by the plaintiff for her own use, contrary to the Terms Sheet.
[58]
Ms McEwan makes three major requests for information. The first asks that the Commonwealth Defendants specify which part of the Second Mactaggart QPS Statement refers to how part of the BA Investment was spent.
[59]
It is true that the Commonwealth defendants plead a denial of Ms McEwan’s allegation that the BA QPS Statements made no allegations as to how the BA Investment was spent. However, the explanation for that denial asserts positively that that the Second Mactaggart QPS Statement did in fact refer to how part of the BA Investment was spent. That is, it seems to me, a dual-purpose explanation in that it is intended to comply with the requirement for an explanation under UCPR 166(4) but also to advance a positive case and to comply with the obligation under UCPR 149(1)(c) to plead facts which, if not stated specifically, might take another party by surprise.
[60]
The Commonwealth defendants ought to identify the part of the Second Mactaggart QPS Statement which refers to how part of the BA Investment was spent. It can hardly be an onerous burden for the Commonwealth defendants.
[61]
The second request is that the Commonwealth defendants particularise how Mr Mactaggart alleges the BA Investment was spent, and how much of the BA Investment remained and was not returned by the plaintiff. None of that arises out of the defence of the Commonwealth defendants. The only relevant detail for present purposes is the detail in the Second Mactaggart QPS Statement. It can hardly be a proper request for Ms McEwan to seek particulars of what the Commonwealth says now about what Mr Mactaggart alleges. The relevant detail is in the Second Mactaggart QPS Statement, which will presumably be part of the evidence at trial.
[62]
The third request is for the Commonwealth defendants to particularise what steps they took to verify the veracity of the Second Mactaggart QPS statement. This request is then broken down into a number of sub-requests. The problem, again, is that Ms McEwan’s request is not for particulars of any allegation made by the Commonwealth defendants in their defence. The Commonwealth defendants do not make any allegation about the veracity of the Second Mactaggart QPS Statement. Thus, what Ms McEwan seeks to do is to, in effect, cross-examine the Commonwealth defendants in advance of the trial. It also seems likely that the sub-requests are directed at requiring the Commonwealth defendants to answer questions about the content of the Second Mactaggart QPS Statement. That is not a proper request for particulars.

Request 23

[63]
Paragraph 23 of the statement of claim, discussed above, alleges that:

[64]
In response, in paragraph 23 of the defence, the Commonwealth defendants plead that “the Defendants deny the allegations and believe them to be untrue because:
1. the available evidence reasonably supported the Charge and provided reasonable and probable cause for the Charge;
2. the abovementioned evidence included the evidence contained in the brief of evidence for the Committal.” [emphasis added]
[65]
Ms McEwan requests particulars of the “available evidence” by way of documents and evidence contained in the prosecution brief of evidence which supported the charge and the QP9 facts of the charge.
[66]
Certainly, the Commonwealth defendants have provided 23 subparagraphs of particulars. However, a problem is that the particulars are open-ended. The chapeau to the particulars commences: “The evidence which provided reasonable and probable cause for the Charge (and which negate an absence of reasonable and probable cause for the Charge) included the following…” [emphasis added]. Paragraph 23(b) of the defence is similarly open-ended.
[67]
In this context, the use of the word “included” suggests that paragraph 23(b), and the particulars to paragraph 23, list only some of the available evidence that the Commonwealth defendants rely on. This use of the word ‘included’ in a pleading is rarely appropriate because it suggests further matters that are not pleaded in a context where one objective of pleading is to precisely identify what is alleged.^[20] The use of the word in this context is especially problematic because the central issue in the proceeding is: what evidence did the CDPP and the DPP have that could reasonably support the QPS Charge?
[68]
Ms McEwan is entitled to proper particulars of paragraph 23(b). She is entitled to know what the Commonwealth defendants contend comprised the brief of evidence. She is also entitled to proper particulars of paragraph 23 in that the Commonwealth defendants ought to identify precisely what comprised the ‘available evidence’. However, it is preferable for the Commonwealth defendants to have leave to amend those paragraphs so as to delete the open-ended character of the pleading.
[69]
Ms McEwan also seeks particulars of some of the 23 individual particulars.
[70]
Particular (b) states:

“Pursuant to the Terms Sheet, the ‘Use of Funds’ was described as:

“The funds shall be used for the conduct of a clinical trial of the product, based upon the minimum terms in Appendix 1. Trials for registration of the product are to be conducted to achieve the status of a ‘Registered’ product or ‘Listed’ product, as defined by the Therapeutic Goods Act, to be determined by the Board. Any additional funds are to be used for the implementation of the agreed strategy for the development and growth of the Company.”

[71]
As to that particular, Ms McEwan requests the following particulars:

As acknowledged by Mr Monaghan $~$156,000 had been spent legitimately, what part of the remaining $18,000 was not spent for the clinical trial in accordance with the Term Sheet and investor agreements.

[72]
This is not a legitimate request for particulars. It is an attempt to cross-examine.
[73]
Particular (d) states:

“In early December 2016, before the BAN Funds were paid, it was agreed with the plaintiff that the business plan would be put aside until after a clinical trial was completed: Monaghan Statement dated 13 April 2018.”

[74]
Ms McEwan makes the following request of that particular:
1. What is the business plan what was “put aside until after a clinical trial was completed”?
2. What evidence was in the possession of the defendants that verified the “business plan” was put aside.
[75]
Request (a) is a proper request in that the ‘business plan’ that the Commonwealth defendants refer to should be properly identified. Presumably it is a written document. The document should be identified, and a copy should be provided to Ms McEwan pursuant to UCPR 222. Request (b), however, seeks evidence rather than any specifics of allegations made by the Commonwealth defendants.
[76]
Particular (e) states:

“Appendix A to the Term Sheet outlined the business plan for the first round of funding, which was to use the funds “to conduct a clinical trial and determine the TGA approval requirements, and enhance IP protection: Monaghan Statement dated 13 April 2018”.

[77]
Ms McEwan requests that following particulars:
1. When referring to the aforementioned 23(e) above “Use of Funds” when referencing against the “acquittal dated 16 August, 2017” emailed to the related to “conduct a clinical trial and determined TGA approval requirements, and enhance IP protection”.
2. Mr Monaghan’s statement dated 13 April, 2018 had accepted ~$156,000 (+10K company balance) was spent in accordance with the approved expenses of conducting a clinical trial, TGA approval requirements and enhancing IP protection.
  1. What part of the ~18,000 was not spent in accordance with the Term Sheet and investor agreements.
[78]
It is difficult to understand request (a). Both requests appear to ask for evidence rather than particulars.
[79]
Particular (g) states:

“At no time was authorisation given for the BAN Funds to be used for anything other than what was stated in the Terms Sheet: Mactaggart Statement signed on 21 March 2019 taken by Officer Holt.”

[80]
As to that allegation of a negative, that is that no authorisation was given, Ms McEwan requests the following particulars:

What part of the $185,000 was not used in accordance with the Term Sheet, shareholder’s agreement and business plan – Financial Models dated 10 November, 2016.

[81]
Again, the request does not arise out of the allegation by the Commonwealth defendants. The allegation is merely that there was no authorisation. Ms McEwan’s request asks a question designed to elicit evidence.
[82]
Particular (k) states:

“The payment of consultancy fees to the plaintiff was not approved at any Apagein Biotech board or investor meetings.”

[83]
Again, that is a negative allegation, namely that there was no approval. Ms McEwan requests that following particulars:
1. What documents were in possession of the defendants to verify the plaintiff was not authorised to be paid for her work and required to work for free.
2. On what basis the defendants held the lawful belief Mr Alan Monaghan was entitled to be paid, however the plaintiff was to work for free.
3. Referring to the Monaghan statement dated 13 April, 2018 acknowledging the plaintiff’s payments of $90,000, the statement made by the defendants is unreasonable.
[84]
The first two requests seem to be legitimate queries in the sense that it could hardly be assumed that Ms McEwan was obliged to work without being paid a reasonable fee for her services. However, the allegation by the Commonwealth defendants is merely that the payment of fees was not approved by any board or investor meetings. Ms McEwan is entitled to challenge the assumption as being false. However, I do not think that the allegation is susceptible to a request for particulars. The third request is really an assertion or comment rather than a proper request for particulars.
[85]
Particular (l) states:

“Until 16 August 2017, the plaintiff never informed BAN or any member of the Brisbane Angels that she was paying herself consultancy fees totalling $90,000.00 and neither BAN nor the Brisbane Angels were aware of that fact.”

[86]
In response to that negative allegation, Ms McEwan requests that following particulars:
1. What documents the defendants held to verify the BAN or the Brisbane Angels were not aware the plaintiff was being paid $90,000 consulting fees;
2. Referring to the Monaghan statement dated 13 April, 2018 acknowledge the plaintiff’s payments of $90,000, the statement made the defendants is unreasonable.
[87]
The first question seeks evidence. It requires the Commonwealth defendants to substantiate their allegation. The second question is really an assertion or a comment rather than a proper request for particulars.
[88]
Particulars (m) to (w) set out the transactions between the Apagein account and the Trembath account from 28 December 2016 onwards.
[89]
Ms McEwan requests the following particulars, with my comments in brackets:
1. The defendants in Particular (b) accepted the Monaghan statement dated 13 April, 2018 therefore what relevance is there for the defendants to list transfers of payments between accounts. (This is not a proper request for particulars of any part of the allegation – it is a challenge to the veracity of the defence.)
2. Explain how the transfer of funds constituted criminal fraud of $185,000. (This is not a proper request for particulars. Ms McEwan cannot seek explanations or legal advice from the other party.)
3. Explain the transfer of funds at law that constitutes criminal fraud as the dishonest application of money when the defendants had accepted the Monaghan statement that at least $156K worth of payments were legitimate company payments; and
  1. Explain on what reasonable basis the defendants charged and prosecuted the plaintiff for $185,000 for defrauding the Brisbane Angels.

(Again, these requests seek explanations, or evidence rather than particulars of any part of the allegations of the Commonwealth defendants).

Request 24

[90]
Paragraph 24 of the statement of claim alleges that Ms McEwan and her lawyers made submissions to the QPS, CDPP and DPP detailing the reasons and documents exculpating her of the QPS Charge. Some details of the submissions are given. Those details are labelled ‘Particulars’ but they appear to be allegations of instances where Ms McEwan or her lawyers made relevant submissions. In other words, the ‘Particulars’ appear to be material facts. That appears to be the view of the Commonwealth defendants because they have responded to each ‘particular’.^[21] The Commonwealth defendants:
1. do not admit a conversation which Ms McEwan says occurred between her and Officer Holt;
2. admit the sending of the letters referred to in paragraph 24(b) and (c), namely a no-case submission by Sibley Lawyers to the CDPP dated 8 July 2019 and a no-case submission by Saul Holt SC to the CDPP dated 19 March 2020;
3. otherwise deny paragraph 24 and deny that there was no case to answer or exculpatory evidence.
[91]
There are two rather odd effects of that part of the defence. The first is that all the Commonwealth defendants admit, in respect of the Sibley and Holt no-case submissions, is that those submissions were “sent”. There is no admission that those submissions were received. The receipt of the submissions was plainly part of Ms McEwan’s case because she alleges that she and her lawyers gave detailed advice and submissions to the QPS, CDPP and DPP. Probably the Commonwealth defendants did not intend to deny receipt, but that is the effect. It creates what is likely to be a false issue. The Commonwealth defendants ought to have leave to amend so as to clarify their pleading.
[92]
The second oddity is that the effect of the denial is to deny the sending and receipt of a letter from Jasper Fogerty Lawyers to the CDPP dated 28 August 2020. That is a curious denial. Contrary to UCPR 166(4), that denial is not accompanied by an explanation for the denial. It is surprising that the Commonwealth defendants do not plead positively to that allegation given that it must be easily ascertainable whether the Fogerty no-case submission was sent and received or not. The consequence of this unexplained denial is that there is a deemed admission. However, because the issue is relatively straight-forward, it is appropriate to give the Commonwealth defendants leave to amend paragraph 24. Of course, the Commonwealth defendants may choose to positively plead to paragraph 24 and the Fogerty no-case submission, or they may choose to provide an explanation in accordance with UCPR 166(4), or they may choose to do both. The objective, of course, is to properly identify the issues.
[93]
That problem with the defence is no doubt the reason why Ms McEwan requests that the Commonwealth defendants advise whether they received the Fogerty no-case submission (which she explains was drafted by Rebecca Forgerty). For the reasons explained, Ms McEwan makes a legitimate point which needs to be addressed by the Commonwealth defendants.
[94]
As explained, the Commonwealth defendants, at paragraph 24(c) of their defence, otherwise deny the allegations in paragraph 24 of the statement of claim that there was no case to answer or that documents exculpated the plaintiff and believe the allegation to be untrue for the reasons pleaded in paragraphs 16(b) and 23 of the Commonwealth defendants’ defence. Paragraph 16(b) refers to some remarks of Magistrate Previtera to the effect that she thought there was a case to answer. Paragraph 23, as explained, identifies the various evidence said to support the case.
[95]
Ms McEwan seeks the following particulars:
1. The evidence that caused the defendants to reject the no case submissions.
2. The defendants in paragraph 22 (b) accepted Monaghan’s statement dated 13 April, 2018 a figure of ~$156,000 was legitimate Apagein expenses made by the plaintiff. Therefore, how do the defendants make an allegation that the plaintiff dishonestly applied $185,000 of the Brisbane Angels investment for personal use; that is for a “personal loan and other expenses” (QP9).
[96]
It is true that the Commonwealth defendants’ denial of Ms McEwan’s allegation that there was no case to answer is in reality a positive case that there was a case to answer. However, proper particulars of that case have been provided in paragraph 23 of the defence, and perhaps also paragraph 16(b).
[97]
These two requests are not proper requests for particulars. They really seek evidence or seek to challenge the defence case.

Request 27

[98]
Paragraph 27 of the statement of claim states that “(t)he Commissioner instituted and continued the Prosecution.” Particulars are given. The Commonwealth defendants deny the allegation and say that they believe it to be untrue because:
1. The Commissioner was not personally involved in the prosecution of the plaintiff for the Charge, or at all;
2. The Commissioner did not institute or continue the prosecution of the plaintiff for the Charge, or at all;
3. The Commissioner was not actively instrumental in commencing the prosecution of the Charge, nor did the Commissioner virtually compel the Charge and
4. The Charge was laid by Officer Holt and not by the Commissioner.
[99]
In response to each of paragraphs 27(a) to (c) of the defence Ms McEwan questions “why the First Defendant is listed on the QP9 relating to an ATO investigation revealing the plaintiff spent the entire investment of $185,000 on personal items.” Of course, that is a challenge to the veracity of the allegation in the defence rather than a proper request for particulars.

Request 30

[100]
Paragraph 30 of the statement of claim, in a similar plea to paragraph 27, alleges that Mr Rains instituted and continued the Prosecution. The Commonwealth defendants deny the allegation and believe it to be untrue because:
1. Mr Rains did not institute or continue the prosecution of Ms McEwan for the Charge, or at all;
2. Mr Rains was not actively instrumental in commencing the prosecution of the Charge, nor did he virtually compel the Charge;
3. Mr Rains did not deliberately misconstrue or withhold evidence that exculpated Ms McEwan and thereby deceive the QPS; and
4. The Charge was laid by Officer Holt.
[101]
As to paragraph 30(b) of the defence Ms McEwan requests the following particulars:
1. Why did the Mr Rains obtain all the Apagein Documents from the Brisbane Angels in or about April 2018;
2. Why did Mr Rains execute a warrant on the Brisbane Angels;
3. Why did Mr Rains have direct dealings with Ashley Hill GRT lawyers for the Brisbane Angels;
4. Why did Mr Rains execute a warrant at the offices of GRT lawyers.
[102]
Those are all questions about the veracity of the defence. Ms McEwan seeks to, in effect, cross-examine the Commonwealth defendants in advance of the trial. They are not proper request for particulars of the defence.
[103]
As to paragraph 30(c) of the defence, Ms McEwan requests the following particulars:
1. Why is Commissioner listed on the QP9 relating to an ATO investigation revealing Ms McEwan spent the entire investment of $185,000 on personal items?
2. Mr Rains was the only ATO official who had dealings with the Brisbane Angels before the charge was laid on 22 August, 2018.
3. Who is the ATO official that provided information the Brisbane Angels that relates specifically to the QP9 facts of the charge?
[104]
The first of those requests is a challenge to the veracity of the defence. The second is a statement or a comment rather than a request for particulars. The third request is difficult to understand but seems to be a question about the evidence. None are proper requests for particulars.
[105]
As to paragraph 30(d) of the defence, Ms McEwan requests the following particulars: “Why did Mr Rains email Officer Holt on 1 February, 2019 instructing him to ‘summons the Trembaths’ in relation to the Brisbane Angels fraud complaint.” Again, that is a query about the veracity of the case of the Commonwealth defendants’ case, or it is an attempt to secure evidence.

Request 32

[106]
Paragraph 32 of the statement of claim pleads that Mr Rains instituted and continued the prosecution maliciously. Particular 32(b) of the statement of claim contends that Mr Rains altered a ‘key document’ showing that the BA Investment had been spent in accordance with the Acquittal by removing details exculpatory to the QPS Charge and then included it in the brief of evidence. The Commonwealth defendants deny all of the allegations in paragraph 32 of the statement of claim and the allegation of altering the document in particular. They say they believe the allegation to be untrue because Mr Rains did not act as particularised in paragraph 32(b).
[107]
There is therefore a contest. Ms McEwan alleges that Mr Rains altered a “key document”, and the Commonwealth defendants deny that allegation. At this point there is a problem. Ms McEwan has not specifically identified the ‘key document’ she says was altered. Nor does she specifically identify the alteration she says Mr Rains made to that document. In fact, as will be seen when I come to the Commonwealth defendants’ request for particulars of the statement of claim, the Commonwealth defendants request those particulars.
[108]
In any event, Ms McEwan’s request for particulars appears to identify the document she says was altered. Ms McEwan seeks the following particulars:
1. Why did Mr Rains materially change Ms McEwan’s company acquittal spreadsheet by changing the layout? This document was placed into the brief of evidence as exhibit VENIK00267.
2. Why did Mr Rains materially change the original acquittal spreadsheet renaming the acquittal to VENIK00267 by:
  1. Deleting notes “*Jve consulting as agreed by in the business plan”.
  2. deleting “*all costs were agreed by the board”.
[109]
No doubt Ms McEwan can and will supply particulars identifying that the ‘key document’ is Ms McEwan’s company acquittal spreadsheet (which subsequently became exhibit VENIK00267) and she will identify the alterations to that document as those set out in paragraph (b) above. On that basis, it seems to me that the Commonwealth defendants ought to positively plead to the allegations that Mr Rains altered the spreadsheet and that he made the alterations alleged above.
[110]
Thus, the actual requests for particulars made by Ms McEwan are not proper requests for particulars. Those requests commence with the word ‘why’ which, in this context, makes it plain that Ms McEwan is seeking an explanation for the alterations, that is she is seeking evidence. However, it seems to me that the Commonwealth defendants ought to supply particulars as to whether Mr Rains did in fact alter the spreadsheet, and, if he did, whether he altered the spreadsheet in the manner alleged by Ms McEwan above.

Request 34

[111]
Paragraph 34 of the statement of claim alleges that the Commonwealth Director of Public Prosecution (the ‘Director’) continued the Prosecution by acting as the prosecutor of the QPS Charge at various stages. The Commonwealth defendants deny the allegations and say that they believe them to be untrue because the Director was not personally actively instrumental in commencing or continuing the prosecution of the Charge.
[112]
Ms McEwan requests the following particulars:
1. Explain why and how the Commonwealth Director of Public Prosecution claims she was not personally actively instrumental in commencing and continuing the prosecution of the charge when:
  1. The Commonwealth Director of Public Prosecution is the Director;
  2. Obtained three no case submissions as set out in paragraph 24 of the Third Revised statement of claim;
  3. Authorised Roberta Devereaux to reject the three no case submissions as referred to in paragraph 24 of the Revised statement of claim.
  4. Was emailed many times over six months by Ms McEwan personally drawing her attention the material facts of the charge.
  5. Received from Ms McEwan many emails of requests to provide exculpatory evidence relating to the QP9 facts of the charge.
  6. Received from the plaintiff many emails of explanation of how the $185,000 had been acquitted in accordance with the Brisbane Angels investor agreements.
  7. Authorised Ms Roberta Devereaux to change the victim from the Brisbane Angels to the Plaintiff’s company “Apagein”.
[113]
None of those requests are proper requests for particulars. They seek to interrogate the Commonwealth defendants.

Request 36

[114]
Paragraph 36 of the statement of claim alleges that the Director continued the Prosecution maliciously. The Commonwealth defendants deny the allegations. They also plead that, to the extent that the Director is found to have acted, or omitted to act, in connection with the prosecution of Ms McEwan (which is denied), then:
1. any such act or omission was done in good faith by the Director in the performance or exercise, or purported performance or exercise, of a function, duty, or power under or in relation to the Director of Public Prosecutions Act 1983 (Cth) (the DPP Act); and
2. in the premises, pursuant to s 32A of the DPP Act, no civil action, suit, or proceeding lies against the Director.
[115]
Ms McEwan requests the following particulars:
1. Explain why the Director is protected by immunity pursuant to s 32A of the DPP Act when:
  1. The Director prosecuted Ms McEwan in the absence of reasonable cause;
  2. The Director had in her possession three no case submissions exculpating the fraud charge;
  3. The Director had in her possession the Brisbane Angels investor agreements “Apageain Documents” which included the Shareholder agreement, Term Sheet, Financial Models 10 Nov 2016, acquittal dated 16 August, 2017 listing the payees, bank statement and Monaghan statement dated 13 April 2018, documents that defeated the fraud charge of $185,000.
  4. Explain why the Director withheld disclosure from Ms McEwan and the court specifically relating to the charge and QP9 charge particulars, even though personal requests were made by Ms McEwan directly to the Director to disclose.
  5. Explain why such conduct as described in the forementioned paragraphs and subparagraphs constitutes “good faith and without negligence”.
[116]
Again, those are requests that have the character of being challenges to the veracity of the defence. These are challenges Ms McEwan can make at trial. They are not proper requests for particulars of the defence.

Request 40

[117]
Paragraph 40 of the statement of claim pleads that the fourth defendant, Mr Micairan, continued the prosecution maliciously. One of the allegations Ms McEwan makes, in paragraph 40(c), is that Mr Micairan failed to disclose exculpatory evidence that was in the possession of the CDPP, despite repeated requests by Ms McEwan and her lawyers to do so. The Commonwealth defendants deny all of the allegations in paragraph 40 and believe the allegations to be untrue for four reasons, one of which is that Mr Micarian “did not fail to disclose exculpatory evidence”. It can be seen immediately that there are two problems. One is the fact that Ms McEwan has not identified the “exculpatory evidence” referred to. The second is the Commonwealth’s use of a double negative causes uncertainty and a lack of particularity.
[118]
The Commonwealth defendants have sought particulars of the expression “exculpatory evidence” in paragraph 40. That is discussed below. Suffice it to say that the Commonwealth defendants are entitled to those particulars. Assuming those particulars are provided, the Commonwealth defendants will be obliged to plead properly to paragraph 40(c). Asserting that Mr Micairan did not fail to disclose exculpatory evidence obscures the real defence. The Commonwealth defendants may be saying that Mr Micairan did not have the exculpatory evidence, or that he had it but was not obliged to disclose it, or that he in fact disclosed it.
[119]
It is not appropriate to require the Commonwealth defendants to amend so as to properly plead to paragraph 40(c) of the statement of claim until Ms McEwan supplies the particulars of the “exculpatory evidence”. However, once she does they should have leave to amend so as to properly plead to paragraph 40(c).
[120]
Incidentally, I have not overlooked the fact that paragraph 40(c) is part of what is described as the ‘Particulars’ to paragraph 40. Despite that labelling, it seems to me that in reality these ‘Particulars’ are material facts which form part of Ms McEwan’s case on malice.
[121]
Ms McEwan request for particulars of paragraph 40(c) is as follows: “explain why [Mr Micairan] withheld disclosure from Ms McEwan and the court specifically disclosure relating to the charge and QP9 charge particulars, even though personal requests were made to [Mr Micarian] to disclose.” That request has a number of problems. It is difficult to understand. What was withheld is not properly identified. The expression “disclosure relating to the charge and QP9 charge particulars” is too vague to facilitate the precise identification of the documents or other information said to be withheld. The duty to disclose is not identified and it is not clear to whom the documents or information should have been disclosed. The request calls for an explanation rather than particulars.
[122]
It follows that this is not a proper request.

Request 41

[123]
Paragraph 41 of the statement of claim alleges that Mr Micairan, by continuing the prosecution, despite knowing the lack of incriminating facts and presence of exculpatory facts, did not act bona fide for the purposes of any Act and without negligence. The Commonwealth defendants deny paragraph 41 and, amongst other things, say:
1. that the prosecution by Mr Micairan of Ms McEwan, and any act or omission by Mr Micairan in connection with the prosecution of Ms McEwan, was done in good faith by Mr Micairan in the performance or exercise, or purported performance of exercise, of a function, duty, or power under or in relation to the DPP Act; and
2. in the premises, pursuant to s 32A of the DPP Act, no civil action, suit, or proceeding lies against Mr Micairan.
[124]
In response, Ms McEwan requests that the Commonwealth defendants explain why Mr Micairan is protected by immunity pursuant to s 32A of the DPP Act when:
1. Mr Micairan prosecuted Ms McEwan in the absence of reasonable cause;
2. Mr Micairan had in his possession three no-case submissions exculpating the fraud charge;
3. Mr Micairan had in his possession the Brisbane Angels investor agreements “Apagein Documents” which included the Shareholder agreement, Term Sheet, Term Sheet, Financial Models 10 Nov 2016, acquittal dated 16 August, 2017 listing the payees, bank statement and Monaghan statement dated 13 April 2018, documents that defeated the fraud charge of $185,000.
4. [the Commonwealth defendants should] explain why Mr Micairan withheld disclosure from Ms McEwan and the court specifically relating to the charge and QP9 charge particulars, even though personal requests were made by Ms McEwan directly to Mr Micairan to disclose; and
5. Explain why such conduct as described in the forementioned paragraphs and subparagraphs constitutes “good faith and without negligence”.
[125]
Those are not proper requests for particulars. They seek to have the Commonwealth defendants explain their stance in this litigation rather than seeking particulars of the defence.

Request 44

[126]
Paragraph 44 of the statement of claim pleads that the fifth defendant, Ms Lukin, continued the prosecution maliciously. As with paragraphs 29, 32, 36 and 40, some ‘Particulars’ are listed but they appear to be material facts relied on as a basis for the plea of malice. The allegations are denied. The Commonwealth defendants plead that Ms Lukin did not fail to disclose “exculpatory evidence”. This plea has the same problem as is identified in request 40 above. The same orders are appropriate.
[127]
Ms McEwan requests the following particulars:
1. Explain why Ms Lukin withheld disclosure from Ms McEwan and the court for more than three years specifically disclosure relating to the charge and QP9 charge particulars, even though personal requests were made to Ms Lukin to disclose;
2. Explain why Ms Lukin withheld the “Financial Models” spreadsheet from the defendant and the court and was excluded from the brief of evidence and at Committal (I suspect this should be “from the plaintiff”);
3. Explain why Ms Lukin withheld the original “acquittal” spreadsheet dated 16 August, 2017 from the defendant [sic, plaintiff] and the court and was excluded from the brief of evidence and at Committal:
  1. Why was the original “acquittal” renamed Copy of VENIK00267 held in the possession of Ms Lukin however not disclosed until November, 2019 and only after many requests to do so.
  2. Why was the original “acquittal” renamed Copy of VENIK00267 held in the possession of Ms Lukin however not included in the prosecution brief provided to the DPP and Ms McGregor for Committal.
[128]
These requests seek to have the Commonwealth defendants explain their stance in this litigation rather than seeking particulars of the defence. They are not proper requests for particulars.

Request 45

[129]
Paragraph 45 of the statement of claim alleges that “Ms Lukin, by continuing the Prosecution despite knowing the lack of incriminating facts and presence of exculpatory facts did not act bona fide for the purposes of any Act and without negligence.” The Commonwealth defendants deny that allegation and, amongst other things, say that:
1. The prosecution by Ms Lukin of Ms McEwan, and any act or omission by Ms Lukin in connection with the prosecution of Ms McEwan, was done in good faith by Ms Lukin in the performance or exercise, or purported performance or exercise, of a function, duty, or power under or in relation to the DPP Act; and
2. In the premises, pursuant to s 32A of the DPP Act, no civil action, suit, or proceeding lies against Ms Lukin.
[130]
Again, Ms McEwan requests the following particulars:
1. Explain why Ms Lukin is protected by immunity pursuant to s 32A of the DPP Act when:
  1. Ms Lukin prosecuted Ms McEwan in the absence of reasonable cause;
  2. Ms Lukin had in her possession three no case submissions exculpating the fraud charge;
  3. Ms Lukin had in her possession the Brisbane Angels investor agreements “Apagein Documents: which included the Shareholder agreement, Term Sheet, Financial Models 10 Nov 2016, acquittal dated 16 August, 2017 listing the payees, bank statement and Monaghan statement dated 13 April 2018, documents that defeated the fraud charge of $185,000.
  4. Explain why Ms Lukin withheld disclosure from Ms McEwan and the court specifically relating to the charge and QP9 charge particulars, even though personal requests were made by Ms McEwan directly to Ms Lukin to disclose; and
  5. Explain why such conduct as described in the forementioned paragraphs and subparagraphs constitutes “good faith and without negligence”.
[131]
Again, the seeking of such an explanation is not a proper request for particulars.

Request 48

[132]
Paragraph 48 of the statement of claim alleges that “Ms Williams [the sixth defendant] continued the Prosecution maliciously.” The Commonwealth defendants, amongst other things, plead that Ms Williams did not fail to disclose “exculpatory evidence”. That has the dual problems identified above in relation to requests 40 and 44. The same orders should be made.
[133]
Ms McEwan requests the following particulars:
1. Explain why Ms Williams withheld disclosure from Ms McEwan and the court for more than three years specifically disclosure relating to the charge and QP9 charge particulars, even though personal requests were made to Ms Williams to disclose;
2. Explain why Ms Williams withheld the “Financial Models” spreadsheets form the defendant [sic, the plaintiff] and the court and was excluded from the brief of evidence and at Committal;
3. Explain why Ms Williams withheld the original “acquittal” spreadsheet dated 16 August, 2017 from the defendant [sic, the plaintiff] and the court and was excluded from the brief of evidence and at Committal:
  1. Why was the original “acquittal” renamed Copy of VENIK00267 held in the possession of Ms Williams however not disclosed until November, 2019 and only after many requests to do so.
  2. Why was the original “acquittal” renamed Copy of VENIK00267 held in the possession of Ms Williams however not included in the prosecution brief provided to the DPP and Ms McGregor for Committal.
[134]
Again, these requested explanations are not proper requests for particulars for the reasons explained above.

Request 49

[135]
Paragraph 49 of the statement of claim alleges that “Ms Williams, by continuing the Prosecution despite knowing the lack of incriminating facts and presence of exculpatory facts did not act bona fide for the purposes of any Act and without negligence.” The Commonwealth defendants, amongst other things, say that the prosecution by Ms Williams of Ms McEwan, and any act or omission by Mr Williams in connection with the prosecution of Ms McEwan, was done in good faith by Ms Williams in the performance or exercise, or purported performance of exercise, of a function, duty, or power under or in relation to the DPP Act and, in the premises, pursuant to s 32A of the DPP Act, no civil action, suit, or proceeding lies against Ms Williams.
[136]
Ms McEwan requests the following particulars:
1. Explain why Ms Williams is protected by immunity pursuant to s 32A of the DPP Act when:
  1. Ms Williams prosecuted Ms McEwan in the absence of reasonable cause;
  2. Ms Willaims had in her possession three no-case submissions exculpating the fraud charge;
  3. Ms Williams had in her possession the Brisbane Angels investor agreements “Apagein Documents: which included the Shareholder agreement, Term Sheet, Financial Models 10 Nov 2016, acquittal dated 16 August, 2017 listing the payees, bank statement and Monaghan statement dated 13 April 2018, documents that defeated the fraud charge of $185,000.
  4. Explain why Ms Williams withheld disclosure from Ms McEwan and the court specifically relating to the charge and QP9 charge particulars, even though personal requests were made by Ms McEwan directly to Ms Williams to disclose; and
  5. Explain why such conduct as described in the forementioned paragraphs and subparagraphs constitutes “good faith and without negligence”.
[137]
Again, these questions seek to have the Commonwealth defendants explain their stance in this litigation, or to supply evidence, rather than seeking particulars of the defence. Those requested explanations are not proper requests for particulars.

Request 52(b)

[138]
Paragraph 52 of the statement of claim alleges that the seventh defendant, Ms Devereaux, continued the prosecution maliciously. Particular (a) alleges that Ms Williams was aware, from information that was obtained and given by Ms McEwan personally and by her lawyers, that there was a complete absence of any information pointing to her guilt. The Commonwealth defendants, amongst other things, deny the allegation and say that they believe it to be untrue because:
1. there was reasonable and probable cause for the Charge for the reasons pleaded in paragraph 23 of the defence;
2. Ms Devereaux did not have the alleged knowledge particularised in Particular (a) of paragraph 52.
[139]
That part of the defence is adequate because the allegation made by Ms McEwan is that Ms Devereaux had a specific state of mind. The Commonwealth defendants are entitled to deny that Ms Devereaux had that state of mind. However, Ms McEwan requests particulars of the denial of that knowledge. She asks that the Commonwealth defendants explain why Ms Devereaux did not particularised the $43,000 as advised by Magistrate Previtera immediately after Committal and before filing the indictment.
[140]
It is difficult to understand that request. Presumably Ms McEwan contends that the Commonwealth defendants ought to have acted in a particular way after Magistrate Previtera’s remarks at the committal. But that is a matter for argument rather than a proper subject for a request for particulars.
[141]
Ms McEwan also asks that the Commonwealth defendants explain why Ms Devereaux changed the victim after the committal from the Brisbane Angels to the plaintiff’s company, Alpagein. It is hard to see why an alteration in the identity of the entity the subject of the alleged fraud is a material fact. The identity of plaintiffs and defendants are frequently changed so that the correct party is on the record. In any event, the explanation Ms McEwan calls for is not a proper request for particulars.
[142]
Ms McEwan’s request refers back to paragraph 52(b) of the statement of claim. The allegation there is that “instead of complying with the orders of the Court to particularise the $43,000, Ms Devereaux fundamentally changed the nature of the QPS Charge by changing –
1. The ‘victim’ from the BA to Apagein Biotech;
2. The description of the ‘property’ the subject of the charge from $43,000 at Committal to “of a value from than $30,000, namely $185,000”:
3. The alleged dishonest application from “to pay a personal loan and other personal expenses” to “partly to her own use and party to the use of JUSTIN TREMBATH”

Despite being aware that the case against Justin Trembath had been dismissed at committal.”

[143]
That allegation is denied because paragraph 52 as a whole is denied. However, the defence does not engage with the specifics of that paragraph. The trial judge will not know whether the Commonwealth defendants agree that Ms Devereaux made those changes, or whether somebody else made those changes, and whether the changes were made for legitimate case management reasons. The Commonwealth defendants should have leave to amend so that it can positively plead to paragraph 52(b).
[144]
As with previous paragraphs, I note that the ‘Particulars’ to paragraph 52 are really material facts said to form the basis of the malice plea.
[145]
Paragraph 52 also suffers from the same dual problems as paragraphs 40, 44 and 48. Ms McEwan has not identified the “exculpatory evidence”. And, the Commonwealth defendants plead the double negative that Ms Devereaux did not fail to disclose “exculpatory evidence”. Similar orders are appropriate here.
[146]
Ms McEwan seeks these particulars:
1. explain why Ms Devereaux withheld disclosure from Ms McEwan and the court for more than three years specifically disclosure relating to the charge and QP9 charge particulars, even though personal requests were made to Ms Devereaux to disclose;
2. explain why Ms Devereaux withheld the “Financial Models” spreadsheets from the defendant [sic, plaintiff] and the court and was excluded from the brief of evidence and at Committal;
3. explain why Ms Devereaux withheld the original “acquittal” spreadsheet dated 16 August, 2017 from the defendant [sic, plaintiff] and the court and was excluded from the brief of evidence and at Committal:
  1. why was the original “acquittal” renamed Copy of VENIK00267 held in the possession of Ms Devereaux however not disclosed until November, 2019 and only after many requests to do so.
  2. why was the original “acquittal” renamed Copy of VENIK00267 held in the possession of Ms Lukin however not included in the prosecution brief provided to the DPP and Ms McGregor for Committal.
[147]
Again, for the same reasons, these are requests for explanations rather than proper requests for particulars.

Request 53

[148]
Paragraph 53 of the statement of claim alleges that “Ms Devereaux, by continuing the Prosecution despite knowing the lack of incriminating facts and presence of exculpatory facts did not act bona fide for the purposes of any Act and without negligence.” The Commonwealth defendants, amongst other things, plead that:
1. the prosecution by Ms Devereaux of Ms McEwan, and any act or omission by Ms Devereaux in connection with the prosecution of Ms McEwan, was done in good faith by Ms Devereaux in the performance or exercise, or purported performance or exercise, of a function, duty, or power under or in relation to the DPP Act; and
2. in the premises, pursuant to s 32A of the DPP Act, no civil action, suit, or proceeding lies against Ms Devereaux.
[149]
Ms McEwan requests the following particulars:
1. explain why Ms Devereaux is protected by immunity pursuant to s 32A of the DPP Act when:
  1. Ms Devereaux prosecuted Ms McEwan in the absence of reasonable cause;
  2. Ms Devereaux had in her possession three no-case submissions exculpating the fraud charge;
  3. Ms Devereaux had in her possession the Brisbane Angels investor agreements “Apagein Documents: which included the Shareholder agreement, Term Sheet, Financial Models 10 Nov 2016, acquittal dated 16 August, 2017 listing the payees, bank statement and Monaghan statement dated 13 April 2018, documents that defeated the fraud charge of $185,000.
  4. explain why Ms Devereaux withheld disclosure from Ms McEwan and the court specifically relating to the charge and QP9 charge particulars, even though personal requests were made by Ms McEwan directly to Ms Devereaux to disclose; and
  5. explain why such conduct as described in the forementioned paragraphs and subparagraphs constitutes “good faith and without negligence”.
[150]
For the same reasons outlined in Request 41, those are not proper requests for particulars.
[151]
It is now necessary to turn to the Commonwealth defendants’ request for particulars of Ms McEwan’s statement of claim.

THE COMMONWEALTH DEFENDANTS’ REQUEST FOR PARTICULARS

Request 1

[152]
Paragraph 10(a) of the statement of claim pleads that Mr Rains provided information to the BA Parties that Ms McEwan had misappropriated the BA Investment by using it to pay for her personal expenses. The Commonwealth defendants request particulars of:
1. the “information”, including, if applicable, any documents, given by Mr Rains to the “BA Parties”; and
2. to which one of the “BA Parties” was the information allegedly given by Mr Rains, namely, Mr McTaggart, Mr Hoult, or Mr Monaghan.
[153]
The plea that Mr Rains provided information to the BA Parties alleges a communication by Mr Rains to the BA Parties of certain information, presumably that Ms McEwan had misappropriated the BA Investment by using it to pay for her personal expenses. That communication ought to be more precisely identified as being a communication by a document (for example an email or letter) or by one or more oral conversations. In the case of a document, the document should be identified, and a copy supplied pursuant to UCPR 222. In the case of a conversation, the date and participants in each relevant conversation should be identified as well as the material words spoken by each, or at least the substance and effect of their statements. For present purposes, I shall identify those particulars as the ‘usual particulars’.
[154]
Those usual particulars should include the individual ‘BA Party’ to whom Mr Rains is alleged to have given the information.
[155]
It may be that Ms McEwan cannot supply all of the details because they involve communications between others. Nevertheless, she is obliged to supply the best particulars she can.

Request 2

[156]
Paragraph 23 of Ms McEwan’s statement of claim, as discussed previously, pleads this:

“In the premises, neither the CDPP nor the DPP had any evidence that could reasonably support the QPS Charge but did have considerable evidence that exculpated Ms McEwan of the charge and disclosed lines of defence that were plainly open to defeat the charge.”

[157]
The Commonwealth defendants request particulars of the “considerable evidence that exculpated” Ms McEwan and that was allegedly in the possession of the CDPP and the DPP. The allegation is plainly a material fact. Indeed, it is a material fact within a central plank of Ms McEwan’s pleaded case. Ms McEwan is obliged to precisely identify that exculpatory evidence. Presumably she can do so by means of a list of documentary evidence. But if the evidence involves oral testimony, Ms McEwan is obliged to identify that evidence in the same way that she is obliged to identify oral conversations in supplying the usual particulars (referred to above).

Request 3

[158]
Paragraph 27(b)(iii) of the statement of claim pleads that the ATO, through Mr Rains, provided information, advice and evidence to QPS. Ms McEwan contends that he did so “with such evidence virtually compelling the QPS to prosecute by deliberately misconstruing and withholding certain evidence that exculpated Ms McEwan, thereby deceiving the QPS to institute the Prosecution”. The Commonwealth defendant request particulars of:
1. the “information, advice and evidence” which was allegedly deliberately misconstrued by Mr Rains; and
2. the “evidence” which was allegedly withheld, and which exculpated Ms McEwan and which allegedly deceived the QPS.
[159]
Those are legitimate requests for particulars. Ms McEwan is obliged to give those particulars.

Request 4

[160]
Paragraph 28 of the statement of claim pleads that the Commissioner instituted and continued the prosecution without reasonable and probable cause. That plea is supported by the following particulars:

“At all material times throughout the course of the Prosecution the Commissioner –

held knowledge and evidence of exculpatory facts including, but not limited to, the Apagein Documents;
had in his possession the Barrister’s Advice, the Sibley No-Case Submission, the Holt QC No-Case Submission and the Jasper Fogerty No-Case Submission;
failed to make inquiries as to the recipients of payments that would have demonstrated that the BA Investment had been spent in accordance with the Acquittal.”

[161]
The Commonwealth defendants request that the following particulars be provided:
1. the exculpatory facts about which the Commissioner allegedly “held knowledge”; and
2. the facts, matters, and circumstances relied upon to allege that the Commissioner held the relevant knowledge.
[162]
The Commonwealth defendants are entitled to those particulars. The ‘exculpatory facts’ need to be identified. And, having specifically pleaded the knowledge of the Commissioner in accordance with UCPR 150(1)(k), Ms McEwan is obliged to plead or provide particulars of any fact from which that knowledge is to be inferred, as required by UCPR 150(2).
[163]
Ms McEwan’s use of the phrase “including, but not limited to” is inappropriate. The objective of pleadings is to define and confine the issues. That open-ended phrase achieves the opposite. It reduces the pleading to an assertion that the Commissioner held knowledge and evidence of a number of exculpatory facts, one of which is the Apagein Documents but the others of which are to remain unidentified. Ms McEwan should have leave to amend so that she can delete that aspect.

Request 5

[164]
Paragraph 29 of the statement of claim pleads that the Commissioner instituted and continued to prosecute the proceedings maliciously. This is supported by two ‘particulars’:
1. “The Commissioner was aware from the information that was obtained and given by Ms McEwan personally and by her lawyers that there was an absence of information pointing to her guilt.
2. The Prosecution was actuated by the illegitimate motive of putting undue pressure on Ms McEwan and her defence of allegations and charges brought by the ATO in respect of the R&D tax offset claimed by Venika Biotech.”
[165]
The Commonwealth defendants request that Ms McEwan provide particulars of the information that the Commissioner obtained, and which was given by Ms McEwan (either personally or by her solicitors) which allegedly indicated that “there was a complete absence of any information pointing to [the plaintiff's] guilt”.
[166]
That is a proper request for particulars. A list which properly identifies the information given by Ms McEwan or her lawyers, and obtained by the Commissioner, should be sufficient. That list should supply the usual particulars of the information, that is, proper identification of any documents comprising that information and detail of the relevant conversations where the information was given orally. Of course, it is assumed that the information obtained by Ms McEwan, or her lawyers, was the same as the information obtained by the Commissioner. If not, that should be clarified.

Request 6

[167]
Paragraph 30 of the statement of claim states that Mr Rains instituted and continued the prosecution. The ‘particular’ to this allegation states that:

“Mr Rains, as the investigator and the only ATO officer who communicated with members of the BA, including Mr Mactaggart, Mr Hoult and Mr Monaghan, was actively instrumental to setting the Prosecution in motion by virtue of providing information, advice and evidence to the

BA Parties that Ms McEwan had spent the BA Investment on personal items and expenses;
QPS prior to the Prosecution, with such evidence virtually compelling the QPS to prosecute by deliberately misconstruing and withholding certain evidence that exculpated Ms McEwan, thereby deceiving the QPS to institute the Prosecution;
CDPP and the DPP throughout the course of the Prosecution, including documents that had been altered to omit details exculpating Ms McEwan of the QPS Charge.

[168]
It can be seen that some serious allegations are made, including the deliberate withholding of exculpatory evidence, deception of the QPS and alteration of documents so as to omit exculpatory evidence. Serious allegations require proper detail.
[169]
The Commonwealth defendants seek particulars of:
1. the “information, advice and evidence” provided by Mr Rains to the “BA Parties” which is referred to in paragraph 30(a);
2. the “information, advice and evidence” which was allegedly deliberately misconstrued by Mr Rains;
3. the “evidence” which was allegedly withheld, and which exculpated the plaintiff, and which allegedly deceived the QPS; and
4. the documents that Mr Rains is alleged to have “altered to omit details exculpating” the plaintiff.
[170]
The Commonwealth defendants are entitled to those particulars so that they have proper notice of the case against them.

Request 7

[171]
Paragraph 31 of the statement of claim pleads that Mr Rains instituted and continued the prosecution without reasonable and probable cause. This is supported by two particulars:
1. “At all material times throughout the Prosecution Mr Rains –
  1. Held knowledge and evidence of exculpatory facts including, but not limited to, the Apagein Documents; and
  2. Failed to make enquiries as to the recipients of payments that would have demonstrated that the BA Investment had been spent in accordance with the Acquittal”
[172]
Again, the Commonwealth Defendants request particulars of the exculpatory facts about which Mr Rains “held knowledge”. They are entitled to those particulars.
[173]
As explained, the use of the words “including, but not limited to” in the first particular is inappropriate. As explained above, it is rarely satisfactory for a pleading to be open-ended in that way. Ms McEwan should have leave to amend so that she can delete that aspect.

Request 8

[174]
Paragraph 32 of the statement of claim pleads that Mr Rains instituted and continued the prosecution maliciously. The associated ‘particulars’ are as follows:
1. Mr Rains was aware from the information that was obtained pursuant to the Venika Biotech Investigation and from the BA Parties that there was no reasonable or credible evidence pointing to her guilt.
2. Mr Rains altered a key document showing that the BA Investment had been spent in accordance with the Acquittal by removing details exculpatory to the QPS Charge and then included it in the brief of evidence;
3. Mr Rains’ actions were actuated by the illegitimate motive of putting undue pressure on Ms McEwan and her defence of allegations and charges brought by the ATO in respect of the R&D tax offset claimed by Venika Biotech.”
[175]
The Commonwealth defendants ask that Ms McEwan provide particulars of:
1. the information of which Mr Rains was allegedly aware and which “was obtained pursuant to the Venika Biotech Investigation and from the BA Parties” that “there was no reasonable or credible evidence pointing to her guilt”;
2. the “key document” which Mr Rains allegedly altered, including particulars of the alteration(s) alleged to have been made by Mr Rains; and
3. the exculpatory details which were allegedly removed by Mr Rains from the “key document”.
[176]
Again, the Commonwealth defendants are entitled to those particulars.

Request 9

[177]
Paragraph 34 of the statement of claim pleads that the “Director continued the Prosecution by acting as the prosecutor of the QPS Charge at various stages”. The Commonwealth defendants seek particulars of the “various stages, identifying the relevant time periods, during which the third defendant allegedly continued the Prosecution by acting as prosecutor. That is a reasonable request for particulars. It will narrow the focus of the evidence and the trial.

Request 10

[178]
Paragraph 35 of the statement of claim pleads that the Director acted without reasonable and probable cause. The ‘particulars’ again talk of ‘exculpatory facts’.
[179]
The Commonwealth defendants seek further and better particulars of:
1. the exculpatory facts about which the third defendant "held knowledge"; and
2. the facts, matters, and circumstances relied upon to allege that the third defendant held the relevant knowledge.
[180]
Ms McEwan ought to provide those particulars. The first request seeks essential detail of what Ms McEwan says are the exculpatory facts. The second request seeks particulars required by UCPR 150(2). There is also the problem of the use of the words “including, but not limited to”. Ms McEwan ought to have leave to amend so as to remove the open-ended character of the pleading.

Request 11

[181]
Paragraph 36 of the statement of claim states that the Director continued the Prosecution maliciously. The ‘particulars’ of that allegation are as follows:
1. The Director was aware from the information obtained and given by Ms McEwan personally and by her lawyers that there was an absence of information pointing to her guilt.
2. The Director was aware of and authorised the fundamental changing of the QPS Charge on indictment as pleaded in paragraph 51 herein.
3. The Prosecution was actuated by the illegitimate motive of putting undue pressure on Ms McEwan and her defence of allegations and charges brought by the ATO and prosecuted by the CDPP in respect of the R&D tax offset claimed by Venika Biotech.
[182]
The Commonwealth defendant request particulars of:
1. The information that the third defendant allegedly obtained, and which was given by the plaintiff (either personally or by her solicitors) which allegedly indicated that “there was a complete absence of any information pointing to [the plaintiff's] guilt”; and
2. the facts, matters, and circumstances relied upon to allege that the third defendant "was aware of and authorised the fundamental changing of the QPS Charge".
[183]
Those are proper requests for the reasons stated previously.

Request 12

[184]
Paragraph 39 of the statement of claim pleads that Mr Micairan acted without reasonable and probable cause. Particular (a)(i) states that when Mr Micairan had carriage of the prosecution, he “was availed of evidence of facts exculpating Ms McEwan of the QPS Charge including, but not limited to, the Apagein Documents”. The Commonwealth defendants request particulars of the exculpatory facts about which Mr Micairan is alleged to have been “availed”. They are entitled to those requests.
[185]
There is also the problem of the open-ended character of paragraph 39. Ms McEwan ought to have leave to correct that.

Request 13

[186]
Paragraph 40 of the statement of claim pleads that Mr Micairan continued the Prosecution maliciously. The ‘particulars’ of that allegation are as follows:
1. Mr Micairan was aware from information that was obtained and given by Ms McEwan personally and by her lawyers that there was an absence of information pointing to her guilt.
2. The Prosecution was actuated by the illegitimate motive of putting undue pressure on Ms McEwan and her defence of allegations and charges brought by the ATO and prosecuted by the CDPP in respect of the R&D tax offset claimed by Venika Biotech.
3. Ms Micairan failed to disclose exculpatory evidence that were in the possession or control of the CDPP, despite repeated requests by Ms McEwan and her lawyers to do so.
4. On 4 December 2020, at a mention before His Honour Chief Judge Devereaux, Mr Micairan made a statement to the Court that Ms McEwan had spent the BA Investment on personal items, including beds, school fees and “other sundry materials…[that have] nothing to do…with clinical trials”, despite knowing, or ought reasonably have known, that such statement was false and there was no proper basis for making such statement.
[187]
The Commonwealth defendants request particulars of:
1. the information about which Mr Micairan was aware, and which was given by the plaintiff (either personally or by her solicitors), which allegedly indicated that “there was a complete absence of any information pointing to [the plaintiff's] guilt”;
2. the “exculpatory evidence” which Mr Micairan failed to disclose and which was in the possession or control of the CDPP; and
3. the facts, matters, and circumstances relied upon to allege that Mr Micairan knew, or ought reasonably to have known, that the alleged statement in paragraph 40(d) was false or that there was no proper basis for making it.
[188]
Those are proper requests for particulars.
[189]
There are two further problems. The allegation is that Mr Micairan made a statement to the court to the effect that Ms McEwan was guilty of the offence whilst he had actual knowledge of facts that were to the contrary. That is an allegation that, if true, would be a fact that supported the plea of malice. However, there is an alternative case to the effect that the statement was made in circumstances where Mr Micairan “ought reasonably to have known” of the facts to the contrary. Those words, “ought reasonably to have known”, give rise to two problems in this context.
[190]
The first problem is that these words make an allegation that, whilst Mr Micairan may not have had actual knowledge of the facts to the contrary, facts and circumstances existed from which Mr Micairan ought to have acquired, either by observation or by inference, the knowledge of the facts to the contrary. In other words, it is alleged that Mr Micairan was careless or negligent in failing to notice the facts and circumstances that were to the contrary. It is a mystery as to just how that allegation of careless or negligent conduct can possibly comprise a particular of malice.
[191]
The second problem is that it is implicit in those words, “ought reasonably to have known”, that there were facts or circumstances from which Mr Micairan ought to have acquired the knowledge that the statement was false. As a matter of particulars those facts and circumstances ought to be identified.^[22] Or, if Ms McEwan’s real case does not depend on the allegation of carelessness that allegation should be deleted. A concern is that if the allegation continues in its present form the issues will not be clear for the parties and the court.
[192]
Ms McEwan should have leave to remedy these problems.

Request 14

[193]
Paragraph 41 of the statement of claim pleads that Mr Micarian, by continuing the prosecution despite knowing the lack of incriminating facts and the presence of exculpatory facts, did not act bona fide for the purposes of any Act and without negligence. That is not a plead directed to any of the five elements of the cause of action for malicious prosecution. Instead, the objective appears to be for Ms McEwan to negate an anticipated statutory defence under s 32A of the DPP Act. Equivalent pleas are also made in paragraphs 33, 37, 45, 49 and 53 of the statement of claim. It is inappropriate for a statement of claim to anticipate the defence and to state what the plaintiff wishes to say in answer to it.^[23]
[194]
Nevertheless, perhaps appreciating that the issue will be articulated in any event, the Commonwealth defendants do not take this objection – to this paragraph or to its equivalents. Instead, the Commonwealth defendants seek particulars of the “exculpatory facts” referred to. They are entitled to those particulars.

Request 15

[195]
Paragraph 43 of the statement of claim pleads that Ms Lukin acted without reasonable and probable cause. Particular (a)(i) contends that Ms Lukin “was availed of evidence of facts exculpating Ms McEwan of the QPS Charge including, but not limited to, the Apagein Documents”. The Commonwealth defendants request and are entitled to particulars of the exculpatory facts about which Ms Lukin “was availed”. Leave should be given to resolve the open-ended problem.

Request 16

[196]
Paragraph 44 of the statement of claim asserts that Ms Lukin continued to prosecute Ms McEwan maliciously. This is supported by particulars (a) to (c). The Commonwealth defendants seek further particulars for (a) and (c), being:
1. the information about which Ms Lukin was aware, and which was given by the plaintiff (either personally or by her solicitors), which allegedly indicated that “there was a complete absence of any information pointing to [the plaintiff's] guilt”; and
2. the “exculpatory evidence” which Ms Lukin failed to disclose, and which was in the possession or control of the CDPP.
[197]
These are proper requests for particulars. Ms McEwan should provide those particulars.

Request 17

[198]
Paragraph 45 of the statement of claim pleads that Ms Lukin acted negligently and was not bona fide as she knew of the absence of incriminating facts and the presence of exculpatory facts. The Commonwealth defendants request and are entitled to particulars of the “exculpatory facts” referred to.

Request 18

[199]
Paragraph 47 of the statement of claim pleads that Ms Williams acted without reasonable and probable cause. Particular (a)(i) alleges that Ms Williams “was availed of evidence of facts exculpating Ms McEwan of the QPS Charge including, but not limited to, the Apagein Documents.” The Commonwealth defendants request and are entitled to particulars of the exculpatory facts about which Ms Williams “was availed”.

Request 19

[200]
Paragraph 48 of the statement of claim alleges that Ms Williams maliciously continued to prosecute Ms McEwan. For the reasons previously stated, the Commonwealth defendants seek and are entitled to the following further and better particulars:
1. the information about which Ms Williams was aware and which was given by the plaintiff (either personally or by her solicitors) which allegedly indicated that “there was a complete absence of any information pointing to [the plaintiff's] guilt”; and
2. the “exculpatory evidence" which Ms Williams failed to disclose, and which was in the possession or control of the CDPP.

Request 20

[201]
Paragraph 49 of the statement of claim pleads that Ms Williams acted negligently and not bona fide as she knew the absence of incriminating facts and the presence of exculpatory facts. The Commonwealth defendants request and are entitled to particulars of the “exculpatory facts” referred to.

Request 21

[202]
Paragraph 51 of the statement of claim alleges that Ms Devereaux acted without reasonable and probable cause. Particular (a)(i) states that Ms Devereaux “was availed of evidence of facts exculpating Ms McEwan of the QPS Charge including, but not limited to, the Apagein Documents”. The Commonwealth Defendants request and are entitled to particulars of the exculpatory facts about which Ms Devereaux “was availed”.

Request 22

[203]
Paragraph 52 of the statement of claim alleges that Ms Devereaux continued the prosecution maliciously. The Commonwealth defendants request and are entitled to particulars of the information about which Ms Devereaux was aware and which was given by the plaintiff (either personally or by her solicitors) which allegedly indicated that “there was a complete absence of any information pointing to [the plaintiff's] guilt”.

Request 23

[204]
Paragraph 53 of the statement of claim alleges that Ms Devereaux acted negligently and not bona fide as she knew the absence of incriminating facts and the presence of exculpatory facts. The Commonwealth defendants request and are entitled to the particulars of the “exculpatory facts” referred to.

Request 24

[205]
Paragraph 74 of the statement of claim pleads that the “actions of the Commissioner caused loss and harm to Ms McEwan with reckless indifference of the likely injury, as pleaded in the relief”. The Commonwealth defendants request particulars of the “loss and harm” caused by the actions of the Commissioner. UCPR 150(1)(b) and 155 require that the statement of claim identify the nature and amount of the damages claimed. Further, it is important to bear in mind that a plaintiff will generally be required to state the material facts relied on to establish the causal link between the impugned conduct and the loss alleged to have been suffered.^[24]
[206]
Ms McEwan is obliged to supply the best particulars she can of the damage. I note that Ms McEwan has identified some heads of damage in paragraph 121 of the statement of claim. However, it is unclear whether that is as far as Ms McEwan can or wishes to take the issue. Particulars should be ordered so that the damages claimed can be identified.

Request 25

[207]
Paragraph 79 of the statement of claim alleges that Mr Rains’ acts caused loss and harm to Ms McEwan with reckless indifference to the likely injury. The Commonwealth defendants request particulars of the “loss and harm” caused by the actions of Mr Rains. For the reasons outlined above those particulars should be ordered.
[208]
Incidentally, the acts of Mr Rains are pleaded in paragraphs 75 to 78, namely:
1. Undertaking the invalid or unauthorised act of prosecuting Ms McEwan without reasonable and probable cause;
2. Acting maliciously;
3. Simultaneously holding positions as an employee at the ATO, an investigator for the ATO, a public officer and an APS employee under the PS Act; and
4. acting as an investigator for the ATO, acting in the Venika Biotech Investigation and the QPS/ATO Agreement.
[209]
The first two categories of actions have their foundation in the malicious prosecution cause of action pleaded earlier in the statement of claim. However, the latter two categories of conduct seemingly add an implied allegation that Mr Rains was at fault or was in a position of conflict of duty and duty by acting in those various roles. I am unable to see what the conflict is, if that is what is alleged, or the basis on which Ms McEwan has such a claim. The allegations here have the appearance of creating a false issue. Ms McEwan should have leave to amend so as to delete those paragraphs or alternative to articulate a proper claim.

Request 26

[210]
Paragraph 84 of the statement of claim alleges that the Director’s actions caused loss and harm to Ms McEwan with reckless indifference to the likely injury. The same orders are appropriate here.^[25]

Request 27

[211]
Paragraph 89 of the statement of claim alleges that the actions of Mr Micairan caused “loss and harm” to Ms McEwan with reckless indifference to the likely injury. Again, the Commonwealth defendants request particulars of the “loss and harm” caused by the actions of Mr Micairan. The same orders are appropriate.^[26]

Request 28

[212]
Paragraph 94 of the statement of claim alleges that Ms Lukin’s actions caused loss and harm to Ms McEwan with reckless indifference to the likely injury. The Commonwealth defendants request particulars of the “loss and harm” caused by the actions of Ms Lukin. The same orders are appropriate.^[27]

Request 29

[213]
Paragraph 99 of the statement of claim alleges that Ms Williams’ actions caused loss and harm to Ms McEwan with reckless indifference to the likely injury. The Commonwealth defendants request particulars of the “loss and harm” caused by the actions of Ms Williams. The same orders are appropriate.^[28]

Request 30

[214]
Paragraph 104 of the statement of claim alleges that Ms Devereaux’s actions caused loss and harm to Ms McEwan with reckless indifference to the likely injury. The Commonwealth defendants request particulars of the “loss and harm”. Again, the same orders are appropriate.^[29]
[215]
It remains to consider the disputes about particulars as between Ms McEwan and the eleventh defendant, the State of Queensland.

MS MCEWAN’S REQUEST FOR PARTICULARS OF THE STATE

Introduction

[216]
On 18 August 2022, Ms McEwan sent Crown Law (on behalf of the State) a letter pursuant to UCPR 444. The letter raises 46 complaints about the State’s defence. Crown Law responded with a letter pursuant to UCPR 445. It is necessary to deal with each. I will use the same numbering.

Request 1

[217]
In paragraph 1(a) of the statement of claim Ms McEwan alleges that she was a business owner and sole director of “certain companies” that were established for the purposes of developing and marketing a safe, non-evasive therapeutic product using a compound that naturally triggers and maintains the human metabolic state of ketosis.^[30] Various particulars are given and, for example, it is alleged that Ms McEwan developed the therapeutic product and was the owner of the intellectual property in the therapeutic product.
[218]
In paragraph 1 of its defence the State pleads a non-admission in the usual terms that the allegation is not admitted because, despite having made inquiries, the State remains uncertain as to the truth or falsity of the allegation. That paragraph also positively pleads that Ms McEwan was a director of Stockingham Pty Ltd, one of the companies that Ms McEwan refers to, between 20 July 2017 and 1 April 2020.
[219]
It is difficult to see why the non-admission is unreasonable. The assertions of fact extend beyond mere directorship and formal matters. They are largely matters within the knowledge of Ms McEwan rather than the State. Even a comprehensive investigation may not have established the ownership of intellectual property, or Ms McEwan’s purposes in establishing the business. And, paragraph 1(a) makes the factual allegation that Ms McEwan’s business was using a compound that naturally triggers and maintains the human metabolic state of ketosis. Those are substantive matters that the State is entitled to not admit.
[220]
It is also difficult to know what order Ms McEwan seeks from the court. It is unlikely that the court could or should order the State to make an admission. What the parties do and do not admit is a matter for them. If the non-admission proves to have been unreasonable then the trial judge can order the State to pay the costs irrespective of the result of the trial. Under UCPR 166(5), if the explanation for the non-admission did not comply with UCPR 166(4), then the consequence would be that the State could be taken to have admitted the allegation. However, this explanation appears to be sufficient having regard to the fact that the matters alleged are largely outside the State’s knowledge.
[221]
Ms McEwan complains that this is an unreasonable and embarrassing non-admission. She says that Officer Holt investigated the plaintiff and her companies. Ms McEwan says:

(c) In the case of the denials not sufficiently particularised or explained. The offending paragraphs of the defence should be deleted which is embarrassing and non-compliant with the UCPR in ways that could not be remedied by the provision of further particulars.

[222]
That complaint has its difficulties. The first sentence in paragraph (c) is not a complete sentence but seems to allege an inadequate explanation for the denial, presumably on the basis that the explanation does not comply with UCPR 166(4). However, a breach of that rule has its own specified consequence. Under UCPR 166(5), if a party’s denial or non-admission of an allegation does not comply with UCPR 166(4), the party is taken to have admitted the allegation. Oddly, rather than seeking that consequence, Ms McEwan seeks an order deleting the paragraph.^[31] It is difficult to see why the court would make such an order.
[223]
The second sentence in paragraph (c) does not precisely identify what the complaint is but, given the first sentence, the thrust of paragraph (c) seems to be that the explanation is inadequate and non-compliant with UCPR 166(4).
[224]
In any event, paragraph 1(a) of the defence is a non-admission, not a denial. That would seem to mean that the objection in paragraph (c) does not apply because the first sentence addresses inadequate explanations of denials. Even extending objection in the paragraph to non-admissions, it is difficult to see why the State’s explanation of its non-admission is inadequate and does not comply with UCPR 166(4). As explained above, the assertions of fact in paragraph 1 of the statement of claim extend beyond mere directorship and formal matters. They are largely matters within the knowledge of Ms McEwan rather than the State. No evidence suggests that the non-admissions are unreasonable.

Two General Points

[225]
It is necessary to pause here and say something about the paragraph (c) quoted above. As I have explained, the paragraph has its difficulties. Unfortunately, though, paragraph (c) is repeated ad nauseum throughout significant parts of of Ms McEwan’s rule 444 letter.^[32] Presumably that is the result of overly enthusiastic use of the ‘cut and paste’ function. The result is that paragraph (c), with its lack of clarity, has been slavishly applied to all the requests.
[226]
In each case, it is assumed that the point of the paragraph (c) objection is to object that the explanation for the denial or non-admission is inadequate and non-compliant with UCPR 166(4). In none of the requests discussed below is the explanation inadequate. In each of the requests discussed below the substance of the paragraph (c) objection (an inadequate explanation) is part of the substantive complaint and then that complaint is then followed, pointlessly, by the paragraph (c) objection in its identical form. In each case the paragraph (c) objection adds nothing of substance.
[227]
A similar use of the ‘cut and paste’ function occurs later in Ms McEwan’s UCPR 444 letter. From request 23 onwards there is a consistent objection in these terms:

Particulars are required to substantiate the pleading. In the case of the denials not sufficiently particularised or explained. The paragraph needs to be deleted.

[228]
The objection hardly deserves to be repeated verbatim 22 times.^[33] The second sentence is incomplete. The third sentence is not a request for particulars but rather a submission by Ms McEwan to the State.^[34] The first sentence is inconsistent with the object of particulars. Particulars are not intended to substantiate the pleading. Particulars are part of the pleading and may be required as part of each party’s obligation to give to their opponent a fair outline of the case that will be run at trial.^[35] Particulars are not intended to substantiate the pleading. The evidence at trial will substantiate, or fail to substantiate, the pleading.
[229]
Thus, the objection in these terms is not a proper objection.
[230]
It is also worth noting that Ms McEwan appears to have objected to every single non-admission in the State’s defence.^[36] In each case she contends that the State has unreasonably non-admitted her allegation. As will be explained, there is no proper basis upon which the court can, at this stage of the proceeding, make a determination that a non-admission is unreasonable. The court does not have any evidence before it. It is not known what evidence Ms McEwan or the State will adduce to prove their case or to disprove the opposite party’s case. And so, there is no factual basis upon which the court could find that a particular non-admission is unreasonable.
[231]
In the absence of evidence, it is also difficult for the court to conclude that the explanation for a non-admission is inadequate. The party may have in their ‘brief’ a gap in the evidence or conflicting evidence. The court is not in a position to assess the adequacy of the explanation.

Request 2

[232]
Paragraph 1(i) of the statement of claim pleads that the State is the responsible entity for the actions of the DPP, Ms McGregor and Officer Holt. The defence provides a positive response:

As to paragraph 1(i) of the SOC, the State:
1. admits that it is responsible (ie. liable) for the actions of Officer Holt provided such actions are of the type described in 10.5 of the Police Service Administration Act 1990 (PSA Act);
2. otherwise, denies the allegations and believes them to be untrue because:
  1. pursuant to ss. 5(1) and 5(3) of the Director of Public Prosecutions Act 1984 (DPP Act), the Director of Public Prosecutions is appointed by Governor in Council under that Act and not under the Public Service Act 2008;
  2. pursuant to s. 13 of the Public Service Act 2008, that Act does not apply to the Director of Public Prosecutions;
  3. pursuant to s 25 of the DPP Act, the State is not responsible (ie. liable) for the actions of the Director of Public Prosecutions or Ms McGregor provided such actions are of the type described in that section.

[233]
At the outset it is not clear what paragraph Ms McEwan complains about. The reference in the chapeau to paragraph 2 of the UCPR 444 letter is to paragraph 1(i) [in bold] (iii). Paragraph 1(i) of the statement of claim has no subparagraphs although the defence, in responding to paragraph 1(i) has some subparagraphs – see above. Thus, Crown Law’s UCPR 445 letter says that they assume the complaint is about paragraph 2(b)(iii) – see above. It is not clear. For present purposes it is assumed that the complaint is about paragraph 2 of the defence, which responds to paragraph 1(i) of the statement of claim.
[234]
Ms McEwan’s request for particulars of that plea is more of a series of objections. First, Ms McEwan complains that this is a non-admission. That is inaccurate; it is a partial admission and a partial denial. Second, Ms McEwan complains that the non-admission is unreasonable. It is not a non-admission, and there is no evidence suggesting the plea is unreasonable. Third, Ms McEwan complains that there are no particulars of how the DPP acted with good faith and without negligence. That does not make sense. Paragraph 1(i) of the statement of claim does not raise those issues and so it would make no sense for the State to raise those issues in its defence. Fourth, Ms McEwan makes the paragraph (c) complaint (see above), but the denial is adequately explained by the references to the relevant provisions of the Acts.
[235]
It is also difficult to see what order Ms McEwan seeks. Presumably she does not seek to challenge the admissions. In so far as she challenges the denials, it is hard to see what order she seeks.

Request 3

[236]
Paragraph 2 of the statement of claim alleges that the Brisbane Angels was the name adopted by a broad collection of entities which had an interest in providing funding for start-up investment projects with a particular focus in the biotechnology area. The State does not admit that paragraph.
[237]
Ms McEwan says that the non-admission is unreasonable. There is no evidence that is so. Paragraph 2 is a conglomerate of allegations dealing with entities (not precisely identified) which had an ‘interest’ and a ‘particular focus’. Those were all matters peculiarly within the knowledge of Ms McEwan. There is no basis for saying that the State, even taking into account some investigations, has unreasonably not admitted the allegation.

Request 4

[238]
The allegation in paragraph 3 of the statement of claim is that Brisbane Angels Nominees Pty Ltd was a duly incorporated company and the corporate entity through which the Brisbane Angels would cause investments to be made. In response, paragraph 6 of the State’s defence admits that Brisbane Angels Nominees Pty Ltd was incorporated but otherwise does not admit the allegation. Ms McEwan complains that the non-admission is unreasonable as the prosecution ultimately relied on the evidence of the Brisbane Angels.
[239]
The second part of the allegation in paragraph 3 of the statement of claim is relatively wide. The allegation is that Brisbane Angels Nominees Pty Ltd was the corporate entity through which the Brisbane Angels would cause investments to be made. The term ‘investments’ is not confined to this particular investment. It is doubtful that any investigation of the particular fraud alleged in this case would have established the course of conduct alleged. In any event, it has not been shown that the non-admission is an unreasonable one.

Request 5

[240]
Paragraphs 4 and 5 of the statement of claim make detailed allegations about Ms McEwan’s dealings with Brisbane Angels and their agreement to invest in Apagein Biotech. Paragraph 6 of the statement of claim alleges that Brisbane Angels knew how the investment had been spent and that it had been spent in accordance with an acquittal. That paragraph also alleges that the Brisbane Angels held all the confidential information. In paragraph 7 of its defence the State does not admit all of those allegations.
[241]
Ms McEwan says that it is unreasonable and embarrassing for the State to not admit those allegations. I am unable to see why that is so. The dealings and the agreement and the knowledge are all matters outside the State’s knowledge.

Request 6

[242]
Paragraphs 7(a) and (b) of the statement of claim allege that:
1. on 30 August 2017 the Brisbane Angels sent a letter to Ms McEwan demanding return of the investment;
2. in or about April 2018 the Brisbane Angels obtained legal advice from a barrister to the effect that they were not entitled to return of the investment.
[243]
In paragraph 8 of its defence, the State does not admit those allegations. Ms McEwan says that this is an unreasonable and embarrassing non-admission because documents in the possession of the State demonstrate that they were aware of a dispute between the Brisbane Angels and Ms McEwan and that they were aware that Brisbane Angels engaged GRT Lawyers and Mr James Green for a barrister’s advice regarding prospects, and that the advice was that the claim for return of their investment had no prospects.
[244]
Now, it is possible that the State has some or all of those documents. One might have expected that if the State had, for example, the letter of 30 August 2017 or the barrister’s advice then the State would admit at least the existence of those documents. However, I am not in a position to know whether the State has those documents or why the State has decided to plead a non-admission. The State’s rule 445 letter merely says that the facts pleaded are not within the State’s knowledge.
[245]
No doubt the State will review its defence in the light of disclosure. That said, there may be reasons why the State has not pleaded positively to paragraphs 7(a) and (b) of the statement of claim. However, if it is demonstrated at trial that this is an unreasonable non-admission then there may be cost consequences. In the meantime, I note that it will not be too difficult for Ms McEwan to prove these paragraphs. Presumably that can be done by tendering the letter and the barrister’s advice.

Request 7

[246]
Paragraph 7(c) of the statement of claim alleges that in about 10 August 2018 Mr Hoult on behalf of Brisbane Angels, with the assistance of Mr MacTaggart and Mr Monaghan, made a false complaint to the QPS that Ms McEwan had defrauded the Brisbane Angels in that she had dishonestly applied the investment to her own use.
[247]
Paragraph 9 of the defence denies those allegations. The explanation for the denial is that the State believes that allegations to be untrue because:
1. on or about 31 July 2018, Officer Holt had received an inquiry from Richard Hoult about Brisbane Angels making a complaint with respect to monies that had been invested with Apagein Biotech;
2. it was only later, on or about 10 August 2018, that Mr MacTaggart (on behalf of Brisbane Angels) made a formal complaint with respect to monies that Brisbane Angels had invested with Apagein Biotech;
3. Mr MacTaggart’s complaint was to the effect that:
  1. Brisbane Angels had provided $185,000 to Apagein Biotech on the condition it be used for the conduct of a clinical trial of a particular weight loss product (Carbstarver);
  2. The monies had not been used as per the condition.
[248]
That explanation is likely to be an explanation that is for the dual purposes discussed above. The explanation appears to serve two purposes, namely, so as to comply with the requirement for an explanation under UCPR 166(4) but also to rely on what is pleaded in the explanation to advance a positive case. That second aspect is designed to comply with the obligation under UCPR 149(1)(c) to plead facts which, if not stated specifically, might take another party by surprise.
[249]
A comparison of paragraph 7(c) of the statement of claim and paragraph 9 of the defence demonstrates that there is some common ground. The State agrees that a formal complaint was made on 10 August 2018. The State says that the Brisbane Angels complaint was made by Mr MacTaggart rather than Mr Hoult. The substance of the complaint seems to be common. Of course, Ms McEwan’s allegation is that this was a false complaint by Brisbane Angels. As might be expected, the State denies that aspect.
[250]
Ms McEwan says that the explanation is inconsistent with Officer Holt’s QPS statement of March 2019. That statement has not been adduced in evidence on this application and so I am not in a position to know whether that assertion is accurate. Even if it were accurate, it is an error to assume that witness statements are correct. Officer Holt’s witness statement may be inaccurate.
[251]
Ms McEwan also complains that it is embarrassing for the State to plead an allegation of fraud, namely that the monies were not used in accordance with their conditions, without particularising how the funds had been acquitted and how the funds were not spent in accordance with the condition. There are a number of problems here. The first is that the State is not making an allegation of fraud in this proceeding. Even in the prosecution, which is the subject of Ms McEwan’s claim in this proceeding, the factual basis for the claim of fraud was provided by the Brisbane Angels’ representatives. They were the complainants. Those allegations were relied on by the QPS in bringing the prosecution.
[252]
Second, it is difficult to see why the State is obliged to provide particulars as to how the funds had been acquitted, or as to how the funds were not spent in accordance with the condition. The case here has a retrospective viewpoint in that Ms McEwan’s case will depend on whether, at the relevant time (see discussion above) the proceedings were instituted without reasonable and probable cause and maliciously. It makes no sense for Ms McEwan to be pressing the State to say, as at today’s viewpoint, how the funds had been acquitted, or how the funds were spent.
[253]
Third, in any event, the allegation in the statement of claim that the State is responding to, paragraph 7(c), does not speak of acquittal or how the funds were spent. The allegation is of a false complaint – which the State has responded to.

Request 8

[254]
This request says that it deals with paragraph 9 of the defence. But there must be some mistake. The likelihood is that the intention is to complain about the non-admission of paragraph 9 of the statement of claim. That is an allegation that in or about April 2018 and under the auspice of the Venika Biotech Investigation, Mr Rains contacted the Brisbane Angel parties and spoke to and exchanged correspondence with each of them. That allegation is not admitted.
[255]
There is no basis upon which the court can conclude that this non-admission is unreasonable. It may be that at trial the conversations and correspondence will be proved. At present, though, the court is not in a position to make any such determination.

Request 9

[256]
Paragraph 10(a) of the statement of claim^[37] alleges that, through the course of the contact between Brisbane Angels and Mr Rains, Mr Rains gave information to the Brisbane Angels that Ms McEwan had misappropriated the investment by using it to pay for her personal expenses. That allegation is not admitted by the State.
[257]
Ms McEwan points out that the QP9 ‘facts of the charge’ records that an ATO investigation identified that money paid to Ms McEwan by Brisbane Angels was used inappropriately. Mr Rains was an ATO employee/investigator. Those are pieces of evidence that, at the trial, may assist Ms McEwan in proving that the ATO was prosecuting her alleging fraud. However, there is a disconnect between that evidence and the allegation in paragraph 10(a) of the statement of claim. The pleaded allegation is that Mr Rains gave information to the Brisbane Angels that Ms McEwan had misappropriated the investment. In other words, the thrust of the allegation is that it was Mr Rains who communicated the fact of the misappropriation to the Brisbane Angels. It is difficult to know whether that was the intention. On the other hand, the QP9 speaks of the results of an ATO investigation rather than a communication from Mr Rains to the Brisbane Angels. Thus, it is doubtful that Ms McEwan’s challenge to the State’s non-admission is assisted by her reference to the QP9.
[258]
It follows that what Ms McEwan seeks to do is to argue or make submissions about the veracity of what she alleges at paragraph 10(a) of the statement of claim. She contends that the QP9 is support for that paragraph and therefore the State’s non-admission of that paragraph is unreasonable. However, I am not satisfied that the QP9 evidence assists, or that this is a proper request for particulars. It is directed to the evidence.

Request 10

[259]
Paragraph 10(b) of the statement of claim alleges that ‘the defendants’ (presumably the defendants in this case) were in possession of the barrister’s advice, and the acquittal information, and knew that the case could not even be proved on the civil standard of the balance of probabilities. The State’s defence admits that Mr Monaghan and Mr MacTaggart provided statements to the ATO in April 2018, but otherwise does not admit the allegations. Ms McEwan challenges the non-admission.
[260]
Ms McEwan’s first complaint is that she was charged with defrauding the entire Brisbane Angels investment of $185,000. However, according to Ms McEwan, the charge and particulars are not consistent with the evidence in possession of the prosecution. Again, the court is not presently in a position to determine that. The evidence that was in the possession of the prosecution has not been adduced before me. The assessment of what evidence was held by the prosecutor is a matter for the trial.
[261]
Ms McEwan states that Mr Monaghan, a prosecution witness, accepted that $166,000 of the payments were made or authorised by Mr Monaghan and that Mr MacTaggart’s statement made no allegation of misappropriation by Ms McEwan. The court is unable to determine whether that is accurate or not. That will be a matter for the trial. And, the court will need to weigh that evidence, and the other evidence in the possession of the prosecution to determine whether the proceedings were instituted without reasonable and probable cause, and maliciously.
[262]
Ms McEwan points out that there was other evidence (e.g. acquittal evidence, barrister’s advice) which makes the State’s non-admission unreasonable. It is impossible to reach that conclusion at this stage of the proceedings. There is a contest about whether the weight of the evidence favoured guilt or innocence. That will be resolved at a trial.

Request 11

[263]
Paragraph 10(c) of the statement of claim alleges that the defendants (i.e. the defendants here) knew there was a zero chance of obtaining ‘beyond reasonable doubt’ against Ms McEwan. That allegation is not admitted.
[264]
Ms McEwan says that the non-admission is embarrassing because:
1. Officer Holt worked in concert with Mr Rains and both obtained the investor agreements;
2. Those men obtained the acquittal information;
3. Mr Rains obtained the barrister’s advice and Mr MacTaggart said he released privilege over (unidentified) documents and emails.
[265]
I am unable to see why the State’s non-admission of paragraph 10(c) is unreasonable. The allegation is focussed on the knowledge of the various officers and officeholders at an unstated time. It is not surprising that in 2022 the State would not admit the state of mind of various people as at 2018.
[266]
There is no evidence that allows the court to determine that the non-admission is unreasonable or fails to comply with UCPR 166(4).

Request 12

[267]
Paragraph 11 of the statement of claim pleads that in about May 2018, the lawyer representing Brisbane Angels, Ashley Hill of GRT Lawyers, arranged for the return of the Apagein Documents and the retaking of them by Mr Rains on behalf of the ATO. Paragraph 12 of the statement of claim alleges that the search warrant was executed at the offices of GRT Lawyers on 6 June 2018 and attended by Mr Rains, Brisbane Angels representatives and Mr Hill whereby the Apagein Documents were retaken by Mr Rains on behalf of the ATO. The State does not admit those allegations.
[268]
Ms McEwan complains that it is embarrassing for the State to plead that they are uncertain about these allegations, given that Officer Holt “worked in concert” with Mr Rains who dealt with Mr Hill and email exchanges demonstrate the State was aware of the facts alleged.
[269]
However, the court does not have any details of the extent to which Officer Holt and Mr Rains worked in concert, or the dealings with Mr Hill, or the email exchanges. Those are matters that the court is unable to make findings about at this stage. They are matters for trial. There is no basis for the court to find that the non-admissions of paragraph 11 and 12 of the statement of claim were unreasonable.

Request 13

[270]
Paragraph 13 of the statement of claim pleads that in or about July 2018, before the Brisbane Angels fraud complaint was made, Mr Rains contacted Officer Holt and organised a joint agency agreement between the QPS and the ATO for the investigation of Ms McEwan in respect of the Venika Biotech investigation and the Brisbane Angels fraud complaint.
[271]
In response, the State’s defence:
1. admits that on or about 5 July 2018 the QPS and the ATO entered into a joint agency agreement for the primary purpose of jointly investigating an alleged tax fraud by the plaintiff and/or companies associated with her;
2. admits that, shortly after that joint agreement was entered into, Officer Holt and Mr Rains spoke for the purposes of advancing the investigation referred to in the joint agreement;
3. says that Officer Holt and Mr Rains spoke and met on many occasions with respect to matters involving the plaintiff and/or her associates;
4. otherwise does not admit the allegations as, despite having made reasonable inquiries, it remains uncertain as to the truth or falsity of them.
[272]
It will be noticed that the State’s plea is not a blanket non-admission. Two facts have been admitted and a further fact has been pleaded. The non-admission applies to the balance.
[273]
Again, Ms McEwan complains that it is embarrassing for the State to plead that they are uncertain about the facts of the ATO’s Venika investigation when Officer Holt “worked in concert” with Mr Rains for the purposes of the joint agreement. Again, it is impossible for the court to conclude that the non-admission is unreasonable.

Request 14

[274]
Paragraph 14 of the statement of claim pleads that, pursuant to the joint agreement Mr Rains gave Officer Holt an email from ATO auditor Liana Cheshire that alleged an amount of funds belonging to the Brisbane Angels had been used for reasons it was not invested for. Again, the State pleads positively by admitting a specific email, and admitting that the content of the email analysed how the invested funds had been used. The balance of the allegations are not admitted.
[275]
Ms McEwan challenges that non-admission because she says that the State had in its possession six categories of documents, and Ms Cheshire had acknowledged that $51,000 had been legitimately acquitted, and there was no positive statement from the ATO or QPS as to the acquittal of the funds. Again, it is impossible to assess the veracity of that challenge. At trial, Ms McEwan may be proved right or wrong. There is at present no basis upon which the court can conclude, at least at this point, that the non-admission is unreasonable.

Request 15

[276]
Paragraph 15 of the statement of claim pleads that, pursuant to the joint agreement Mr Rains sent Officer Holt an email on 1 February 2019 detailing a conversation that Mr Rains had with Justin Trembath. The email is quoted. Oddly, the State does not admit the allegations and does so on the basis that “despite having made reasonable inquiries, it remains uncertain as to the truth or falsity of them.” The State has here used its standard explanation for the non-admission. Again, perhaps, the culprit is the ‘cut and paste’ function.
[277]
Here, Ms McEwan’s complaint has substance. The email is an email from the ATO to the QPS. The State or the ATO must have that document, unless it has been lost within the government computer systems. Still, Ms McEwan has a copy of the email and so one or other of the State or Commonwealth departments have retained the document.
[278]
The situation is that there are limited possibilities. One possibility is that the State accepts that the email did pass between Mr Rains and Officer Holt in which case the State should be able to positively respond to paragraph 15. Another possibility is that the State has determined that the email is not genuine or is not in those terms. In that event, again, the State can give a proper explanation for its non-admission or denial.
[279]
In the circumstances, particularly where the allegation merely identifies a document and its terms, and where the State has chosen to use a rote explanation, the explanation is inadequate and does not comply with UCPR 166(4). The State ought to have leave to amend paragraph 18 of its defence.

Request 16

[280]
Paragraph 16 of the statement of claim alleges that, as a result of the Brisbane Angels fraud complaint, on 22 August 2018 the QPS charged Ms McEwan with one count of fraud pursuant to s 408C(1)(a)(ii), 408C(2)(c) and 408(2)(d) of the Criminal Code Act 1899 (Qld) (the ‘Criminal Code’). The State has denied the allegation, but the effect of the denial is quite limited:
[281]
As to paragraph 16 of the SOC, the State denies the allegations but the ‘dual purpose’^[38] explanation is that:
1. on 22 August 2018 Officer Holt charged the plaintiff with one count of fraud pursuant to s 408C(1)(a)(ii), 408C(2)(c) and 408C(2)(d) of the Criminal Code;
2. the charge was made only after Officer Holt had investigated Mr MacTaggart’s complaint and formed a view that there was prima facie evidence to support the charge.
[282]
There is very little difference between Ms McEwan’s allegation in paragraph 16 of the statement of claim and paragraph (a) above. The only substantive differences are, first, that Ms McEwan says that the charge was brought by QPS and the State says that the charge was brought by Officer Holt. Second, Ms McEwan says that the charges were brought as a result of the Brisbane Angels fraud complaint and the State says that the charges were brought after an investigation and after Officer Holt reached a view on the prima facie evidence. There appears to be little difference between the parties on this point.
[283]
Ms McEwan’s first complaint is that Officer Holt needs to provide particulars of what documents he relied on that established a prima facie case of fraud for $185,000. However, the allegation made here, and the allegation the State is responding to, is that the charge was brought. The State has responded. At the trial, and perhaps beforehand if evidence-in-chief is by witness statement, the parties will depose to the evidence in the possession of the prosecution at the relevant time. That will be a contested issue. However, there is no basis for requiring the State to provide further particulars of the factual basis for his view that there was a prima facie case.
[284]
Ms McEwan’s second complaint is similar - Officer Holt should identify the documents he relied on. As stated above, that will need to be in the evidence, but nothing in the State’s response to paragraph 16 requires further particulars.
[285]
Ms McEwan’s third complaint is that Officer Holt has never provided any particulars to support the charge. That is not a proper request for particulars. In any event, as stated, the State will need to provide the evidence if it proposes to run a positive case. In fact, as mentioned above, one possible interlocutory direction is to try to have the parties identify the documents that were within the prosecution brief as at 22 August 2018 (assuming that is the date Ms McEwan relies on).
[286]
Ms McEwan’s fourth complaint is that the denial is not sufficiently particularised or explained. I disagree. The State has positively pleaded to paragraph 16 of the statement of claim. In fact, as explained, there is little of significance that remains in dispute.

Request 17

[287]
Paragraph 17 of the statement of claim pleads that the QPS charge sought restitution/compensation for $185,000, being the entire amount of the Brisbane Angels investment. The State denies that allegation. The State’s explanation for the denial is that no restitution/compensation was sought.
[288]
Ms McEwan says that this is further embarrassment for the State. She says that the QP9 clearly states that the Brisbane Angels sought restitution/compensation of $185,000. There is, it can be seen, a contest. However, the State is within its rights to deny the allegation. Indeed, it seems unlikely that an entry in a QP9 reflects that the charge sought restitution/compensation.

Request 18

[289]
Paragraph 21 of the statement of claim pleads that the CDPP and the DPP both had in their possession at the relevant time the Apagein Documents, the BA ATO documents, and the BA QPS statements, all of which formed part of the brief of evidence. In paragraph 25 of its defence the State does not admit the allegation. The explanation is the usual explanation: “despite having made reasonable inquiries, it remains uncertain as to the truth or falsity of them.”
[290]
Here, there is some legitimacy to Ms McEwan’s complaint. How can it be that the State is unable to say what was in its own brief of evidence? It may be that there is some reason why the State is unable to say. But the refuge in the formulaic explanation, in circumstances where it could be expected that the State has the relevant knowledge, means that the UCPR 166(4) requirements of a ‘direct explanation’ have not been met. The State should have leave to amend paragraph 25 of its defence.

Request 19

[291]
Paragraph 22 of the statement of claim pleads that:
1. The Apagein Documents demonstrated that the investment had been spent in accordance with the acquittal;
2. BA ATO statements made no allegations as to how the investment was spent and did not show that the investment was spent by Ms McEwan for her own personal use;
3. BA QPS statements made no allegations as to how the investment was spent, not that it was spent by Ms McEwan for her own personal use.
[292]
Those allegations are not admitted in paragraph 24 of the defence. It is possible that the State’s non-admission here is based on its non-admission of paragraph 21 of the statement of claim. Ms McEwan’s allegations about those three categories of documents is likely to be able to be resolved by looking at the documents. To take the first category as an example, an inspection of the Apagein Documents should be able to resolve whether the State agrees that those documents demonstrated that the investment had been spent in accordance with the acquittal.
[293]
Again, the complaint is justified and the State should have leave to amend so that it positively pleads to paragraph 22 of the statement of claim.

Request 20

[294]
Paragraph 23 of the statement of claim, discussed in detail above, is an allegation that neither the CDPP nor the DPP had any evidence that could reasonably support the QPS Charge but did have considerable evidence that exculpated Ms McEwan of the charge and disclosed lines of defence that was no case to answer on multiple occasions. In paragraph 26 of its defence the State denies the allegations. The explanation for that denial is that the DPP had evidence that supported the charge. Particulars are supplied by the State:
1. The Terms Sheet stated that the investment shall be used for the conduct of a criminal trial;
2. The statement of Mr Monaghan dated 13 April 2018 which stated that the plaintiff was aware of the purpose for which the BA funds were to be used, having been present for all negotiations with the Brisbane Angels;
3. The statement of Ms Liane Cheshire dated 19 February 2019 which contained an analysis of the Brisbane Angels funds showing that the funds had not been used in accordance with the Terms Sheet.
[295]
It can be seen immediately that the explanation, including the particulars, has a focus on the allegation that there was no evidence to support the charge. The explanation does not address the second limb to paragraph 23, namely that the CDPP and the DPP had considerable evidence that exculpated Ms McEwan of the charge. However, as pointed out above, there is a problem with paragraph 23 of the statement of claim. Ms McEwan has not identified the exculpatory evidence that she says was in the possession of the CDPP and DPP. That makes it difficult for the State to respond.
[296]
In that respect, it seems to me that the State has failed to provide a direct explanation for its denial of the second limb to paragraph 23 and so leave should be given for the State to amend its defence in that respect. That amendment can await Ms McEwan’s supply of particulars of paragraph 23.
[297]
Ms McEwan’s first complaint about paragraph 26 of the defence is that the DPP must provide particulars of how Ms McEwan did not acquit the funds in accordance with the Terms Sheet. Of course, nothing in paragraph 23 of the statement of claim requires that the DPP or the State provide particulars of how the funds were not acquitted. That is not the point of paragraph 23. Paragraph 23 is an assertion that there was no evidence to support the charge and ‘considerable evidence’ which exculpated Ms McEwan of the charge. The paragraph deals with the weight of evidence which supported guilt or innocence. It does not make direct allegations about the acquittal.
[298]
Ms McEwan’s second complaint is that Mr Monaghan’s statement acknowledges $166,000 in legitimate expenditure. Ms McEwan claims that the Monaghan statement is inconsistent with the allegation of fraud (at least to the extent of $166,000). However, even if she is right about that inconsistency, that is simply a submission about the evidence. The court is not, at present at least, in a position to make rulings about the weight of the evidence.
[299]
There is another problem here which has been discussed at the outset of these reasons. Ms McEwan’s case, in paragraph 23, is not simply that the weight of the evidence favoured her innocence. Her case is that the CDPP and the DPP did not have any evidence that could reasonably support the QPS Charge, and in fact possessed considerable evidence that exculpated Ms McEwan of the charge.
[300]
That is a serious concern. Ms McEwan’s pleading puts that rather stark case, but her written arguments appear to argue a less absolute case that the weight of evidence favoured innocence. The pleaded case is a black and white case. The written arguments portray a less stark case. Suffice it to say that Ms McEwan’s case ought to be clear. She should properly consider whether her present statement of claim properly records what she intends to argue.
[301]
Ms McEwan’s third complaint is similar. She says that Ms Cheshire’s statement acknowledges $51,000 in legitimate expenses. She says that is inconsistent with the State’s case. For the same reasons, that complaint is not valid for the purposes of the present applications. The weight of the evidence may or may not be relevant depending on how Ms McEwan proposes to frame her case (see the discussion above).
[302]
Ms McEwan’s fourth complaint is that there is no evidence as to how the funds were actually acquitted and that they were acquitted dishonestly, and that they were acquitted contrary to the Terms Sheet. Again, the odd feature is that Ms McEwan argues that there is “no evidence”. It is uncertain whether she means that or whether she really wishes to say that the evidence predominately favoured her innocence. In any event the issue she raises does not raise any point of pleading or particulars. It is an argument for trial.

Request 21

[303]
In paragraph 24 of the statement of claim Ms McEwan pleads that she and her lawyers gave detailed advice and submissions to the QPS, CDPP and DPP detailing the reasons and documents that exculpated her and demonstrated that there was no case to answer. In paragraph 27 of the State’s defence, the State admits that Ms McEwan’s lawyers made submissions on her behalf as to why the charge should not be pursued. Otherwise, the State does not admit the allegations. The State also pleads the details of two separate conversations between her and Officer Holt. The State pleads that, despite the submissions of Ms McEwan’s lawyers, the charge was properly brought and properly prosecuted.
[304]
Ms McEwan’s first complaint is that:

It is embarrassing for the State to acknowledge the no-case submissions, that set out clearly how the BA’s acquittal was spent in accordance with the Term Sheet and investor agreements, however the State provides absolutely no particulars as to why the no case submissions were rejected and the prosecution continued.

[305]
That is an argument for trial. The State has detailed the three pieces of evidence that it says supported the charge in paragraph 26 of the defence (in response to paragraph 23 of the statement of claim). The determination as to whether that evidence was sufficient to prosecute or continue the prosecution is a matter for trial. I am not in a position to make any findings about that. It is similar for the argument that the DPP ought not to have rejected the no-case submissions.
[306]
Ms McEwan’s second complaint is that Officer Holt provides no particulars as to why he believed the dispute was not a civil one, or why Ms McEwan’s conduct constituted fraud. The debate as to whether the dispute was a civil dispute or not arises from the two conversations pleaded by the State. That is a matter of evidence. And the State has explained the three pieces of evidence that it says supported the charge of fraud.
[307]
Ms McEwan’s third complaint is that the State must provide particulars as to why the Brisbane Angels payments were not in accordance with the Term Sheet and the investor agreements. That is a demand that Ms McEwan makes that does not arise out of paragraph 27 of the defence. It is also concerning that Ms McEwan expresses this complaint on the basis that it is for the State to now justify that the payments were contrary to the Term Sheet and investor agreements. This case, of course, involves a determination of the evidence in the possession of the DPP at the time the prosecution was initiated or continued.

Request 22

[308]
Paragraph 26 of the statement of claim alleges that the prosecution was a malicious prosecution against Ms McEwan. Not surprisingly, the State denies the allegation. The State’s explanations for that denial are:
1. there was reasonable and probable cause to support the bringing of the charge against Ms McEwan;^[39]
2. the charge was not brought for a wrongful or improper purpose;
3. The charge was not, at least during the DPP prosecution period, prosecuted for a wrongful or improper purpose.
[309]
First, Ms McEwan says that the State must provide particulars. However, the allegation of malicious prosecution is Ms McEwan’s allegation. They have put that aspect in issue, and they have explained the reasons for that denial. They are not required to provide further particulars of that denial.
[310]
Second, Ms McEwan says the pleadings are contradictory to the prosecution brief of evidence. I am not in a position to determine that on an interlocutory basis. This is an argument for the trial.
[311]
Third, Ms McEwan complains that “[c]ontradictory to the exculpatory evidence and prosecution witness statements in the possession of the DPP and Ms McGregor – as set out in aforementioned paragraphs.” Again, the alleged inconsistencies are a matter for trial. I am unable to make any factual findings on an interlocutory basis.

Request 23

[312]
Paragraph 54(a) of the statement of claim pleads that Officer Holt was an officer pursuant to the Police Service Administration Act 1990 (Qld) and a public officer. That is admitted by the State. Paragraph 54(b) of the statement of claim pleads that the State of Queensland was liable for the conduct of Officer Holt pursuant to s 10.5 of the same Act. That allegation is denied by the State. The State’s explanation for that denial is that the State’s liability under s 10.5 is limited to conduct that occurs in an official capacity.
[313]
Ms McEwan complains that particulars are required to substantiate the pleading and that an explanation should be provided as to why Officer Holt’s conduct “constitutes official capacity”. It seems likely that, although it is poorly expressed, there is a legitimate complaint here. Section 10.5 provides that an officer does not incur personal liability provided that, at the relevant time, the person is engaged in an official capacity. In that event, liability attaches instead to the State.
[314]
The problem is that is a possible false issue. Indeed, Crown Law concede in their UCPR 445 letter that the allegation ought to be admitted because there is no contention that at any relevant time Officer Holt acted outside his official capacity. The State should have leave to amend.

Request 24

[315]
Paragraph 55 of the statement of claim pleads that Officer Holt instituted and continued the prosecution. The State admits that Officer Holt instituted the prosecution but denies that he continued the prosecution. The State’s explanation is that the decision to continue was made by a person other than Officer Holt.
[316]
Ms McEwan’s complaint here is that particulars are required to substantiate the pleading. The pleading will be substantiated, or not substantiated, by the evidence at trial. The issue of fact to be decided at the trial is whether Officer Holt’s role involved the continuation of the prosecution. No particulars are required

Request 25

[317]
Paragraph 56 of the statement of claim pleads that Officer Holt instituted and continued the prosecution without reasonable and probable cause. That allegation is denied. The State’s explanation for its denial is as follows:
1. Officer Holt only instituted the prosecution once he was satisfied there was prima facie evidence of an offence having been committed;
2. when the charge was brought, there was in fact prima facie evidence of an offence having been committed;
3. Officer Holt did not continue the prosecution after the CDPP and DPP took carriage of it.
[318]
Ms McEwan complains that there are no particulars of the prima facie evidence. That is not true. Paragraph 26 of the defence identifies the three pieces of evidence relied on in support of the charge. She says that particulars are required to substantiate the pleading. As explained, the pleading is an allegation. That allegation will be substantiated, or not substantiated at the trial.

Request 26

[319]
Paragraph 57 of the statement of claim pleads that Officer Holt instituted and continued the prosecution maliciously. The allegation is denied. The State’s explanation for the denial is that Officer Holt did not institute the prosecution for a wrongful or improper purpose and Officer Holt did not continue the prosecution after the CDPP and DPP took carriage of it.
[320]
Again, Ms McEwan seeks particulars to substantiate the pleading. Substantiation is a matter of evidence at trial.

Request 27

[321]
Paragraph 58 of the statement of claim pleads that Officer Holt’s actions were not done bona fide for the purposes of the Police Service Administration Act 1990 (Qld) or any other Act or without negligence. That anticipatory plea is denied. Again, incorrectly in my view, Ms McEwan seeks substantiation.

Request 28

[322]
Paragraph 59(a) of the statement of claim pleads that the State was the employer of the Director of Public Prosecutions and liable for acts done by or on behalf of the Director. The defence admits that the State was the employer of the Director but denies the allegation that the State is liable for his acts by reason of s 25 of the Director of Public Prosecutions Act 1984 (Qld).
[323]
Again, Ms McEwan seeks particulars to substantiate the pleading. The issue is a question of statutory interpretation. No particulars are called for.

Request 29

[324]
Paragraph 61 of the statement of claim pleads that the Queensland Director (i.e. the DPP) acted without reasonable and probable cause. Particulars are given. The State’s defence:
1. denies the allegation and explains that denial on the basis that there was, throughout the prosecution period, reasonable and probable cause to support the charge;
2. says that on 10 December 2019 Magistrate Previtera was satisfied that the evidence was sufficient to commit Ms McEwan to trial.
[325]
Ms McEwan’s first complaint is that the State^[40] provides no particulars as to what evidence supported the ‘reasonable and probable cause’. That is not accurate. The State rely on the three pieces of evidence set out in paragraph 26 of its defence (in response to paragraph 23 of the statement of claim.
[326]
Ms McEwan’s second complaint is that the State does not provide particulars as to why the Magistrate committed the plaintiff, and what the evidence was that she relied on by way of documents and oral submissions by Ms McGregor. That is not a proper objection. The trial of this proceeding will not involve an examination of what was before Magistrate Previtera on 10 December 2019 and whether she was justified in committing Ms McEwan for trial. Whether the Magistrate was correct is not a relevant issue in this proceeding. As it is presently pleaded Ms McEwan’s case is that the CDPP and the DPP did not have any evidence that could reasonably support the QPS charge, but they did have considerable evidence that exculpated Ms McEwan.^[41] That is the case Ms McEwan presently pleads.^[42] The Magistrate’s decision to commit Ms McEwan, and her basis for doing so, are matters that are not relevant to Ms McEwan’s pleaded case. It follows that the State is not obliged to provide particulars of the committal or the basis of the committal.
[327]
It is worth noting that this litigation is not a broad inquiry into the circumstances that led to Ms McEwan being charged. The case will be confined to the issues raised by the pleadings.
[328]
Ms McEwan’s third complaint is the standard ‘no substantiation’ objection. No particulars are required of this paragraph of the defence.

Request 30

[329]
Paragraph 62 of the statement of claim pleads that the Queensland Director continued the prosecution maliciously. The State denies the allegation. The explanation for the denial is that the prosecution was not pursued maliciously and was pursued in circumstances where there was prima facie evidence of an offence.
[330]
Ms McEwan complains that the State provides no particulars of why the prosecution was not malicious. The State is not obliged to do so. It is for Ms McEwan to prove malice. The State’s explanation that the prosecution was not pursued maliciously is sufficient in the circumstances. The plea of malice is a plea of a state of mind and so the reasons for the defendant’s belief that the allegation is untrue will often require little exposition beyond a statement that there was no malice.
[331]
Ms McEwan also makes the standard ‘no substantiation’ objection. No particulars are required.

Request 31

[332]
Paragraph 63 of the statement of claim pleads that the DPP, by continuing the prosecution despite his knowledge of the lack of incriminating facts and presence of exculpatory facts did not act bona fide for the purposes of any Act, including the DPP Act, and without negligence. The State denies the allegation.
[333]
Ms McEwan’s complaints are that the DPP provides no support as to how the prosecution by the DPP was done in good faith and without negligence, and that particulars are required. In my view, no particulars are required of the State’s denial. And the explanation for the denial is sufficient.

Request 32

[334]
Paragraph 64(d) of the statement of claim pleads that the State was the employer of Ms McGregor and is liable for acts done for or on behalf of Ms McGregor acting in that role. The State admits that it was Ms McGregor’s employer but deny liability by reason of the statutory effect of s 25 of the Director of Public Prosecutions Act 1984 (Qld).
[335]
Ms McEwan’s first complaint is that the State “provides no particulars as to how her conduct constitutes good faith and without negligence, conduct that is consistent within the provisions of s 25 of the DPP Act.” That complaint appears to assume that the DPP Act contains an excuse provision conditioned on good faith and an absence of negligence. That is not the case. Section 25 of the DPP Act is in these terms:

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.

[336]
Thus, the section does not require good faith and an absence of negligence. The request appears to proceed on a false basis.
[337]
There is, however, a problem with the State’s plea, although not a major problem. If the State relies on s 25 of the DPP Act as a basis for saying that the State cannot be liable for the actions or omissions of Ms McGregor, then it is necessary for the State to:
1. identify the relevant acts or omissions of Ms McGregor; and
2. identify how those acts or omissions were “for the purpose of giving effect to this Act or discharging, exercising or performing any function, power, authority or duty under this Act”.
[338]
The State should have leave to amend so as to deal with the problem that the immunity in s 25 is relied on, but no facts are pleaded to bring the conduct within the immunity.
[339]
Ms McEwan also makes the standard ‘no substantiation’ objection. No particulars are required.

Request 33

[340]
Paragraph 66 of the statement of claim pleads that Ms McGregor acted without reasonable and probable cause. The State denies the allegation and gives the same explanation as for Request 29 regarding the DPP. Ms McEwan’s complaints are the same and the answers to those complaints are also the same.

Request 34

[341]
This request is the same as request 30 above. Request 30 was in respect of the DPP. This request relates to Ms McGregor. For the same reasons no particulars are required.

Request 35

[342]
This request is the equivalent of request 32. The same reasoning applies here.

Request 36

[343]
Paragraph 69 of the statement of claim pleads that:

Further or in the alternative to the malicious prosecution carried out by the defendants as pleaded herein, the defendants demonstrated by their action’s [sic] misfeasance in public office.

[344]
The allegation is denied. Ms McEwan’s complaint is the standard ‘no substantiation’ objection. The plea is a general one, as is the response, with the detail provided elsewhere in the parties’ respective pleadings. No particulars are required.

Request 37

[345]
Paragraph 105 of the statement of claim pleads that Officer Holt undertook an invalid or unauthorised act, namely laying the charge and the prosecution of Ms McEwan without reasonable and probable cause and paragraph 56^[43] is repeated and relied on. The State denies the allegation and provides an explanation that Officer Holt did not undertake an invalid or unauthorised act and brought the charge in circumstances where there was reasonable and proper cause.
[346]
Ms McEwan makes the standard ‘no substantiation’ objection. No particulars are required.

Request 38

[347]
Paragraph 106 of the statement of claim alleges that Officer Holt acted maliciously and relies on paragraphs 57 and 58.^[44] The State denies the allegation and the explanation is that Officer Holt did not act maliciously and did not bring the charge for an unlawful or improper purpose.
[348]
As with some of the previous requests, the allegation by Ms McEwan is of malice, a state of mind. A party who alleges malice must plead, properly particularise and prove the allegation. Ms McEwan has those obligations. It is Ms McEwan who must substantiate the pleading of malice. The State is entitled to deny the allegation. It has no obligation to substantiate or provide particulars of its denial. And, given the allegation made it is appropriate for the State to explain its denial by saying, in effect, ‘we deny any malice’. Here, of course, the State has gone a little further.
[349]
Again, Ms McEwan makes the standard ‘no substantiation’ objection. No particulars are required.

Request 39

[350]
Paragraph 109 of the statement of claim pleads that the actions of Officer Holt caused loss and harm to Ms McEwan with reckless indifference to the likely injury. Paragraph 55 of the defence:
1. denies that Officer Holt acted with reckless indifference because he acted appropriately and only brought the charge once he was satisfied there was prima facie evidence of an offence;
2. otherwise, the State does not admit the allegations.
[351]
The standard ‘no substantiation’ objection is raised but there is no reason to order particulars of paragraph 55 of the defence.

Request 40

[352]
Paragraph 110 of the statement of claim pleads that the DPP undertook an invalid or unauthorised act, namely the prosecution of Ms McEwan without reasonable and probable cause and in dereliction of the Director’s Guidelines including but not limited to the lack of sufficient evidence.^[45] The defence denies the allegations on the basis that there was reasonable and probable cause. The defence also raise the fact that Magistrate Previtera was satisfied the evidence was sufficient to warrant committal.
[353]
The standard ‘no substantiation’ objection is raised. There is no basis to order particulars.
[354]
However, Ms McEwan’s use of the open-ended phrase “including but not limited to” is inappropriate for the reasons explained above. Ms McEwan should have leave to amend so as to confine the pleading.

Request 41

[355]
Paragraph 111 of the statement of claim pleads that the DPP acted maliciously. This is the equivalent of request 38 (in respect of Officer Holt). For the same reason no particulars should be ordered.

Request 42

[356]
Paragraph 114 of the statement of claim pleads that the actions of the DPP caused loss and harm to Ms McEwan with reckless indifference to the likely injury. The allegation is denied in paragraph 60 of the defence.^[46] This request is the equivalent of request 39 and should be refused for the same reasons.

Request 43

[357]
Paragraph 115 of the statement of claim is a carbon copy of paragraph 110 of the statement of claim – except that it deals with the conduct of Ms McGregor rather than the DPP. The defence is similar except that it refers to Ms McGregor’s conduct in appropriately pursuing the charge up to the committal.
[358]
The request, another standard ‘no substantiation’ objection should be refused for the same reasons.

Request 44

[359]
Paragraph 116 of the statement of claim is a carbon copy of paragraph 111 of the statement of claim (i.e. malice is alleged) – except that it deals with the conduct of Ms McGregor rather than the DPP. The defence is similar. For the same reasons there is no basis for ordering particulars.

Request 45

[360]
Paragraph 119 of the statement of claim is similar to paragraph 114 (Request 42). The defence is the same and, for the same reasons, the request should be refused.

CONCLUSIONS

[361]
It follows that the pleadings and particulars need some attention. The best way to achieve that is to give the parties leave to amend their pleadings in the respects identified above and to direct that certain particulars be supplied. For the particulars ordered, it will assist the clarity of the case for those particulars to be supplied as part of an amended pleading. And, of course, it makes sense that Ms McEwan amend before the defendants respond.
[362]
Orders and directions will be made as stated above.

Footnotes

[1] The entity Brisbane Angels is abbreviated in the statement of claim to ‘BA’. That abbreviation is sometimes used in these reasons.

[2] Uniform Civil Procedure Rules 1999 (UCPR), r 149(1)(a)(b).

[3] UCPR r 149(1)(c).

[4] UCPR r 155(1).

[5] UCPR r 155(2).

[6] UCPR r 157.

[7] [2009] QCA 303 at [11].

[8] These elements are derived from the discussion in Section 69 of Bullen Leake & Jacob’s Precedents of Pleadings (13th ed) at 642.

[9] For convenience I shall refer to the present version of Ms McEwan’s pleading, the fourth revised statement of claim, as the statement of claim.

[10] That is when the BA QPS statements were prepared.

[11] See the particulars to paragraph 24 of the statement of claim.

[12] See, for example Ryan v Woodbridge [1890] 16 VLR 572. The cases were usefully discussed and distinguished as only applying to malicious prosecution cases in Dwyer v The National Trustees Executors & Agency Co of Australasia Ltd [1939] VLR 96.

[13] From the point of view of case management, it is important that all three parties, including the self-represented plaintiff, clearly understand the case to be mounted by the other parties.

[14] See for example the discussion of the plea of malice in the defamation context in McDonald v State of South Australia [2017] SASCFC 146 at [151].

[15] Ms McEwan’s request for particulars is not numbered. For convenience I have used as headings Ms McEwan’s reference to the relevant paragraph of the statement of claim.

[16] [1998] QCA 38 reported at [2000] 1 Qd R 464.

[17] Johnston v Sewell [1962] QWN 36.

[18] The events are said to involve the issuing of a search warrant prior to the bringing of the charges. Those events occurred in April and June 2018. The charge seems to have been brought on 22 August 2018 but the BA QPS statements (which are alleged to be exculpatory) were taken in March 2019. Suffice it to say that how the search warrant events demonstrate malice is not clear.

[19] Tri-Star Petroleum Company v Australia Pacific LNG Pty Limited [2017] QSC 136 at [25].

[20] Ms McEwan’s statement of claim suffers from a similar problem which is addressed below.

[21] A party is not normally required to plead to particulars.

[22] Fox v H Wood (Harrow) Ltd [1963] 2 QB 601 at 604; followed and applied by Fitzgerald J in Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 47 ALR 114.

[23] See Jacob & Goldrein, Pleadings: Principles and Practice, Sweet & Maxwell at 107

[24] Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No. 7) [2019] QSC 241 at [17].

[25] The conflict allegation appears to be: “Simultaneously being the principal officer of the CDPP, a public officer and an APS employee under the PS Act.”

[26] The conflict allegation appears to be: “Simultaneously holding positions as an employee at the CDPP, a prosecutor working on behalf of the Director, a public officer, and an APS employee under the PS Act”.

[27] The conflict allegation appears to be: “Simultaneously holding positions as an employee at the CDPP, a prosecutor working on behalf of the Director, a public officer, and an APS employee under the PS Act”.

[28] The conflict allegation appears to be: “Simultaneously holding positions as an employee at the CDPP, a prosecutor working on behalf of the Director, a public officer, and an APS employee under the PS Act.”

[29] The conflict allegation appears to be: “Simultaneously holding positions as a deputy director and employee at the CDPP, a prosecutor working on behalf of the Director, a public officer, and an APS employee under the PS Act.”

[30] No evidence was given of ketosis but a dictionary definition is a metabolic state characterized by raised levels of ketone bodies in the body tissues, which is typically pathological in conditions such as diabetes, or may be the consequence of a diet that is very low in carbohydrates.

[31] The deletion of the paragraph would then have the consequence that the allegation is taken to be admitted: UCPR 166(1). But that assumes that the State would not obtain leave to re-plead. Such an application would seem to have reasonable prospects this far out from trial and in the absence of prejudice.

[32] The paragraph (c) formula is used in Requests 1 to 15 and occasionally thereafter. Abbreviations of paragraph (c) are also used.

[33] There are also a few occasions where the objection is slightly modified.

[34] One possibility is that it is a request for the court to strike out the relevant paragraph, but no proper notice has been given of such an application. There have no submissions by either party as to strike-out.

[35] See Jacob & Goldrein, Pleadings: Principles and Practice, at 165.

[36] Some denials are also the subject of objections.

[37] This request is labelled as: ‘9 Paragraph 10(a) of the defence.’ However, from the context it must be referring to paragraph 10(a) of the statement of claim.

[38] See discussion above.

[39] Presumably this is on the basis of the three pieces of evidence in paragraph 26 of the defence (discussed above).

[40] In this request Ms McEwan refers to the DPP but it is assumed that the intention is to refer to the State.

[41] See paragraph 23 of the statement of claim.

[42] This is the ‘black and white’ case discussed above.

[43] The actual reference is to paragraph 55 but the likelihood, as the State’s defence points out, is that the intended cross-reference is to paragraph 56.

[44] The actual cross-reference is to paragraphs 56 and 57 but it is assumed the intended reference is to 57 and 58.

[45] Note that the use of the phrase “the lack of sufficient evidence” suggests that Ms McEwan’s case is not the stark case pleaded in paragraph 23 of the statement of claim.

[46] The terms of the defence are similar to paragraph 55 of the defence

Editorial Notes

Published Case Name:
McEwan v The Commissioner of Taxation
Shortened Case Name:
McEwan v Commissioner of Taxation
MNC:
[2022] QSC 279
Court:
QSC
Judge(s):
Freeburn J
Date:
12 Dec 2022

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	[2022] QSC 81	11 May 2022	-
Primary Judgment	[2022] QSC 97	03 Jun 2022	-
Primary Judgment	[2022] QSC 279	12 Dec 2022	-
Notice of Appeal Filed	File Number: CA6631/22	07 Jun 2022	-
QCA Interlocutory Judgment	[2022] QCA 142	05 Aug 2022	-
Appeal Determined (QCA)	[2022] QCA 231	22 Nov 2022	-

Appeal Status

Appeal Determined (QCA)

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Bayliss v Cassidy	[2000] 1 Qd R 464; [1998] QCA 38	3 citations Jump To Cite 1 - [1998] QCA 38 Cite 2 - [1998] QCA 38 Cite 3 - [2000] 1 Qd R 464
Dwyer v National Trustees Executors and Agency Co. of Australasia Ltd.	View on:VR[1939] VLR 96	1 citation Jump To Cite 1 - [1939] VLR 96
Fox v H Wood (Harrow) Ltd	View on:ICLRUK(1963) 2 QB 601	1 citation Jump To Cite 1 - (1963) 2 QB 601
Johnston v Sewell	[1962] QWN 36	1 citation Jump To Cite 1 - [1962] QWN 36
Lyons v Kern Konstructions (Townsville) Pty Ltd	(1983) 47 ALR 114	1 citation Jump To Cite 1 - (1983) 47 ALR 114
McDonald v State of South Australia	View on:JADE[2017] SASCFC 146	1 citation Jump To Cite 1 - [2017] SASCFC 146
Robertson v Hollings	[2009] QCA 303	2 citations Jump To Cite 1 - [2009] QCA 303 Cite 2 - [2009] QCA 303
Ryan v Woodbridge	View on:VR[1890] 16 VLR 572	1 citation Jump To Cite 1 - [1890] 16 VLR 572
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 7)	[2019] QSC 241	1 citation Jump To Cite 1 - [2019] QSC 241
Tri-Star Petroleum Company v Australia Pacific LNG Pty Limited	[2017] QSC 136	1 citation Jump To Cite 1 - [2017] QSC 136

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
McEwan v Commissioner of Taxation	[2024] QSC 113	2 citations
McEwan v Commissioner of Taxation	[2024] QSC 252	2 citations
McEwan v Commissioner of Taxation	[2025] QCA 48	2 citations

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McEwan v Commissioner of Taxation[2022] QSC 279