McEwan v Commissioner of Taxation [No 2]
[2022] QSC 97
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- Unreported Judgment
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- McEwan v Commissioner of Taxation [No 2][2022] QSC 97
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McEwan v Commissioner of Taxation [No 2][2022] QSC 97
McEwan v Commissioner of Taxation [No 2][2022] QSC 97
SUPREME COURT OF QUEENSLAND
CITATION: | McEwan v The Commissioner of Taxation of the Australian Taxation Office and Ors (No 2) [2022] QSC 97 |
PARTIES: | JULIE MCEWAN (plaintiff) v THE COMMISSIONER OF TAXATION OF THE AUSTRALIAN TAXATION OFFICE (first defendant) and ANTHONY RAINS (second defendant) and THE DIRECTOR OF THE COMMONWEALTH DEPARTMENT OF PUBLIC PROSECUTIONS (third defendant) and ROMAN MICAIRAN (fourth defendant) and KATIE LUKIN (fifth defendant) and JESSICA WILLIAMS (sixth defendant) and ROBERTA DEVEREAUX (seventh defendant) and THE DIRECTOR OF PUBLIC PROSECUTIONS (eighth defendant) and EMILY MCGREGOR (ninth defendant) and ADRIAN HOLT (tenth defendant) and THE STATE OF QUEENSLAND (eleventh defendant) and JOHN DUGALD MACTAGGART (twelfth defendant) and ALAN JAMES MONAGHAN (thirteenth defendant) and FREDERICK RICHARD HOULT (fourteenth defendant) |
FILE NO/S: | BS 971 of 2022 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 3 June 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Plaintiff’s written submissions filed 18 May 2022 First to Seventh Defendants’ written submissions filed 20 May 2022 Eighth to Eleventh Defendants’ written submissions filed 20 May 2022 Twelfth to Fourteenth Defendants’ written submissions filed 20 May 2022 Plaintiff’s written submissions in reply filed 24 May 2022 |
JUDGE: | Martin SJA |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the Commonwealth and BAN Defendants were all substantially successful on the applications they brought – where the plaintiff has not advanced an adequate reason for the usual rule not applying – whether the plaintiff should pay the Commonwealth and BAN Defendants’ costs on a standard basis PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the plaintiff was warned that the State Defendants relied upon legislation which provided immunity – where the plaintiff was given an opportunity to discontinue the proceedings against the State Defendants with each party bearing their own costs – where the plaintiff was warned that costs on an indemnity basis would be sought if that offer was not accepted – whether an order for indemnity costs is appropriate PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – OTHER CASES AND MATTERS – where orders were made striking out parts of the plaintiff’s claim – where the plaintiff seeks leave to replead Claims 3 and 5 – whether the plaintiff should be granted leave to replead McEwan v The Commissioner of Taxation of the Australian Taxation Office and Ors [2022] QSC 81 Robertson v Hollings & Ors [2009] QCA 303 |
COUNSEL: | The plaintiff appeared on her own behalf SA McLeod QC and MR Wilkinson for the first to seventh defendants DM Favell for the eighth to eleventh defendants AJ Schriiffer for the twelfth to fourteenth defendants |
SOLICITORS: | The plaintiff acted on her own behalf Australian Government Solicitor for the first to seventh defendants G R Cooper, Crown Solicitor for the eighth to eleventh defendants Cronin Miller Litigation for the twelfth to fourteenth defendants |
- [1]On 11 May 2022 I made a number of orders[1] in this matter and allowed the parties to make written submissions with respect to a number of matters, including costs.
- [2]The orders made can be summarised as follows:
- (a)Claims 1, 2, 7, 8, 9 and 10 were set aside.
- (b)Claims 3, 4 and 5 were struck out.
- (c)Paragraphs 29 to 48, 54 and 55 of the ASOC were struck out.
- (d)Judgment was given for the 8th and 9th defendants.
- (e)The 10th defendant was removed as a party.
- (a)
Leave to replead?
- [3]Ms McEwan seeks leave to replead Claims 3 (malicious prosecution) and 5 (misfeasance and malfeasance).
- [4]She also appears to seek leave to make a claim based on fraud. In her submissions she described it as: “(currently pleaded – claim required was omitted by Plaintiff)”. No other submission is made. No defendants to such a claim are identified. Leave is not granted.
- [5]The Commonwealth Defendants and the BAN Defendants oppose leave being given to replead.
- [6]The amended Statement of Claim relied upon by Ms McEwan was poorly drawn and replete with irrelevant assertions. It is said by the Commonwealth Defendants, not without some justification, that “the plaintiff has not demonstrated that she will comply with the pleading rules to establish a reasonable cause of action.”
- [7]Ms McEwan’s written submissions provide further support for the view that she does not understand the nature of the applications which had been brought against her. Many references to evidence are made, but little is said about the manner in which she might correct the pleadings. Ms McEwan repeats that she is a “self-represented litigant” and “should not feel prejudiced”. Fairness to litigants flows both ways. As Keane JA said in Robertson v Hollings & Ors:[2]
“[11] … 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.”
- [8]In her written submissions, Ms McEwan says, at paragraph 10(j), that she “will seek legal advice about the pleading to correct the issues.”
- [9]I have decided, with some reluctance, to allow Ms McEwan to replead those parts of the ASOC which relate to Claims 3 and 5. But, she may not file such a pleading until 14 days after she has served upon the Commonwealth and BAN Defendants a copy of the proposed new pleading. If those defendants wish to oppose the filing of a new statement of claim then they may make an application within those 14 days.
Consolidation
- [10]The BAN Defendants do not seek an order for consolidation of this matter with the Stockingham proceeding if leave is not granted to the plaintiff to replead the malicious prosecution claim. In light of the order above, I adjourn the application for consolidation to a date to be fixed.
Costs
- [11]The Commonwealth, State and BAN Defendants were all substantially successful on the applications they brought. No adequate reason has been advanced for the usual rule not applying.
- [12]The State Defendants seek an order that the plaintiff pay their costs on an indemnity basis. That is based upon actions taken by those defendants whereby the plaintiff was warned on a number of occasions that the State Defendants relied upon the legislation which provided immunity and upon which they were successful. Ms McEwan was given an opportunity to discontinue the proceeding against the State Defendants with each party bearing their own costs. The plaintiff was warned that costs on an indemnity basis would be sought if that offer was not accepted. An order for indemnity costs is appropriate.
Orders
- [13]I make the following orders:
- (a)the plaintiff has leave to replead, within 21 days, those parts of the Amended Statement of Claim which relate to Claims 3 and 5;
- (b)the plaintiff may not file any amended Statement of Claim until the expiry of 14 days of the service of any amended Statement of Claim upon the Commonwealth and BAN Defendants;
- (c)upon being served with any amended Statement of Claim, the Commonwealth and BAN Defendants are at liberty to file an application seeking an order that the plaintiff not be allowed to file any such amended Statement of Claim;
- (d)the application by the BAN Defendants for the consolidation of these proceedings with the Stockingham proceeding (BS 11902/20) is adjourned to a date to be fixed;
- (e)the plaintiff is to pay the costs of the Commonwealth and BAN Defendants of this application on the standard basis;
- (f)the plaintiff is to pay the costs of the State Defendants of this application on the indemnity basis; and
- (g)all parties have liberty to apply on three days written notice.
- (a)