McEwan v Rains[2023] QSC 183

SUPREME COURT OF QUEENSLAND

REASONS

1. [1]
   This proceeding is managed on the self-represented litigants list.  There are two applications before the court.  The first is an application by the plaintiff, Ms McEwan, for leave to issue a subpoena.  The second is an application by the respondents to list an interlocutory application for hearing.

Subpoena

2. [2]
   Ms McEwan seeks to issue a subpoena addressed to “the Commonwealth Attorney-General, the Honour Mark Dreyfus KC MP”.
3. [3]
   Pursuant to rule 415 of the Uniform Civil Procedure Rules 1999 the Registrar can, at the request of a party, issue a subpoena requiring production of documents, or requiring a witness to attend court for the purpose of giving evidence, or requiring both production of documents and the attendance of the witness.  The proposed subpoena is not one of those three types of subpoenas which may be issued by the court.
4. [4]
   The proposed subpoena is a hybrid labelled “Subpoena to Produce Evidence”. It seems to be in an adapted version of Form 43 of the rules, requiring both documents and attendance for the purposes of giving evidence.
5. [5]
   The first problem is that the proposed subpoena does not require the Commonwealth Attorney-General to attend court and/or to produce to the court the documents at a designated time on a particular day at a particular place.  The nature of a subpoena – even a subpoena of documents only – is a command by the court to attend court on a particular occasion, usually a trial or a hearing.  A failure to comply with that command can be contempt of court.  Thus, the requirement in rule 415(4) of a specific time, date and place is important. The court retains a supervision over the process of witnesses appearing before the court.
6. [6]
   The proposed subpoena seeks production of certain information on or before a specific date, namely 25 August 2023.  It does not require production or attendance at court on a specific date.  And the proposed subpoena requires production of that information at Ms McEwan’s address for service at a suburb in Brisbane.  There is no proper basis for a subpoena to be issued requiring the Commonwealth Attorney-General to attend Ms McEwan’s address at suburb in Brisbane.
7. [7]
   That raises the second problem.  The proposed subpoena, in so far as it requires production of documents, must require production of the documents to the court, not to the party who requests the issue of the subpoena.^[1]
8. [8]
   The third problem with the proposed subpoena is that the subpoena does not seek the production of specific documents or specific categories of documents.  The documents required by the subpoena are introduced in this way:

“The evidence sought under this subpoena is relevant to the criminal prosecutions of the applicant [i.e. Ms McEwan] and the costs incurred by government agencies are in the public interest”.

9. [9]
   Then, the categories of documents sought are as follows:

3. 1.
   Disclose the total costs of all internal and external legal fees and other expenses associated with the four prosecutions of Julie van Eps, includes any other associated proceedings.  Expenses not limited to Barristers fees, the costs/billables incurred by the Australian Taxation Office (ATO), legal fees Australian Government Solicitor (AGS), the fees and costs incurred by the Commonwealth Director Public Prosecutions (CDPP), costs incurred by the Australian Federal Police (AFP) including executing warrants.  The four prosecutions –

   1.1 QPS State Charge matter number MAG186804/18(0)

1.2 ATO prosecution matter number MAG00066842/19(3)

   1.3 CDPP matter MAG119711/22(3) (bail)

   1.4 CDPP matter MAG17234/22(6) (bail)

3. 2.
   Provide the total costs incurred by the ATO on all prosecutions of Ms van Eps since 1 March 2018 to 3 August 2023.

3. 3.
   Provide the total costs incurred by the CDPP on all prosecutions of Ms van Eps since 1 April 2018 to 3 August 2023.

3. 4.
   Provide the total costs incurred by the AFP when executing warrants in relation to Ms van Eps since 1 March 2018 to 3 August 2023.

10. [10]
    It can be seen that those categories are not specific categories of documents.  Instead, those are categories of information which Ms McEwan seeks.  For example, Ms McEwan seeks “the total costs incurred by the ATO on all prosecutions of Ms van Eps …”
11. [11]
    Broad disclosure is not the purpose of the subpoena process.  Information gathering is not the purpose of the subpoena process.  The documents the subject of the subpoena must be identified with sufficient precision to enable the witness the subject of the subpoena to identify the documents sought and bring them to court.^[2]  A subpoena is not to be used to fish for information or as a de facto discovery process.^[3]
12. [12]
    The fourth problem is that the information being sought by the subpoena is not relevant.  Whether or not the information about the Commonwealth expenditure on costs is of public interest, the information is not relevant to any issue raised by Ms McEwan’s pleadings or the respondents’ pleadings.
13. [13]
    It follows that Ms McEwan will not be permitted to issue the proposed subpoena.  Incidentally, I have not considered other possible problems such as whether Ms McEwan proposes to tender conduct money to the Commonwealth Attorney-General.

Nine Subpoenas

14. [14]
    Ms McEwan’s written submissions refer to the issue that was before the Court of Appeal and decided in McEwan v Rains [2023] QCA 134 (30 June 2023).  That issue involved the validity of nine subpoenas.  As Bond JA explained at paragraph [50] the nine subpoenas the subject of the appeal no longer have any utility because they all required attendance and/or production of documents in September 2022.  It will be necessary for Ms McEwan to issue fresh subpoenas.
15. [15]
    No further subpoenas have been issued.  And Ms McEwan needs the leave of the court to file any further subpoenas.  That is the effect of an order made by Kelly J on 26 September 2022.  Of course, if Ms McEwan were to seek leave to issue fresh subpoenas substantially in the form of the nine subpoenas, she has the advantage of the Court of Appeals’ decision in her favour.
16. [16]
    No application for leave has been made.  No proposed subpoenas have been submitted.  It is therefore unnecessary to deal with the issue of the nine subpoenas.

Interlocutory Application

17. [17]
    The respondents seek to prosecute an interlocutory application to have this proceeding set aside or stayed.
18. [18]
    In the broader proceeding, commenced by originating application, Ms McEwan seeks a permanent stay of 30 charges comprising:

3. “(a)
   one count of attempting to dishonestly obtain a financial advantage contrary to s 134.2(1) and 11.1 of the Criminal Code 1995 (Cth);

2.  11 counts of influencing a Commonwealth public official contrary to s 135.1(7) of the Criminal Code 1995 (Cth); and

3.  18 counts of forgery and uttering contrary to s 488 of the Criminal Code 1899 (Qld).”

19. [19]
    Alternatively, Ms McEwan seeks orders setting the criminal proceedings aside.  As Bond JA explained in the Court of Appeal, Ms McEwan contends that:

“… the prosecution of the ATO Charges was oppressive, involved prosecutorial misconduct, invoked the Court’s procedures for an illegitimate purpose, and brought the administration of justice into disrepute.”^[4]

20. [20]
    The proceedings have been on foot since August 2022 – for one year.  However, the respondents now wish to bring an interlocutory application to dismiss the proceedings.  The respondents say that these proceedings are an impermissible collateral attack on the criminal proceedings and are therefore an abuse of process.
21. [21]
    The proceeding has been case managed on the Self-Represented Litigants List since 26 September 2022.  There is therefore a case management decision to be made as to whether the respondents ought to be permitted to bring their proposed interlocutory application in advance of the hearing of Ms McEwan’s substantive application.  The alternative, of course, is for the substantive hearing to be set for a hearing and, in that event, the respondents could then bring their application at the outset of the substantive hearing.
22. [22]
    The interests of justice require that the parties be afforded procedural fairness in relation to any reasonable application they wish to make.  The case management directions need to facilitate those principles, but it is also necessary to bear in mind the resources of the court and the demands of other litigants.
23. [23]
    In weighing the pros and cons of having the interlocutory application proceed in the Applications List now, I asked the parties to make written submissions, including an assessment as to the court time likely to be involved in the interlocutory application and the time estimate for the substantive hearing.  In summary, the respondents estimate that the interlocutory application can be heard within one day and the substantive hearing will occupy between six and eight days.  Ms McEwan has not estimated the time likely to be involved in the interlocutory application,^[5] but she estimates the substantive hearing will take only two to two and a half days.
24. [24]
    It is hard to assess the reasonableness of time estimates.  Suffice it to say that the interlocutory application looks to be able to be heard and determined within one day.  On balance, though, I think Ms McEwan’s estimate of the time required for the substantive hearing is likely to be an underestimate.  Ms McEwan proposes to subpoena nine witnesses – all of whom are either part of the prosecution team or witnesses for the Crown.
25. [25]
    It is an unusual step for Ms McEwan to seek to prove her case based on the evidence of “opposing” witnesses.  If they are to be her witnesses, she will need to lead evidence-in-chief from them or she will need to seek leave to cross-examine those witnesses.  None of that process looks likely to involve, as Ms McEwan estimates, only 15 minutes for seven of the witnesses and only 30 minutes for two of the witnesses.
26. [26]
    It seems to me that the court ought to approach Ms McEwan’s time estimate with some hesitation.  Ms McEwan has a rather expansive view about what is relevant.  An illustration is that Ms McEwan’s written submissions sought to make relevant the conduct of the ACT DPP referred to in the “Sofronoff Report”.^[6]  And her desire to subpoena the Commonwealth Attorney-General rather illustrates that some slabs of time are likely to be required in order for the parties to argue issues of relevance.
27. [27]
    In that context it is difficult to accept that nine potentially hostile witnesses will attend court, and give their evidence-in-chief, and be cross-examined – all within 2 hours 45 minutes of court time.
28. [28]
    It is necessary for the court to be realistic.  The issues which Ms McEwan wishes to ventilate are serious issues.  They will take time to argue and time for the court to consider and decide. Ms McEwan has also indicated in several reviews of this matter that she will be instructing counsel to act for her during the trial. Her counsel may have a different view on the time required for evidence-in-chief and cross-examination.
29. [29]
    Ms McEwan argues that, if the interlocutory application proceeds, she will be forced to run a substantial part of her case to defend the interlocutory application.  She says that is an unnecessary waste of time and money.  I am unable to see why Ms McEwan will need to run her substantive case, or part of it, in defending the interlocutory application.  Even if there is some duplication, it is unlikely to constitute significant prejudice.  And, of course, if the interlocutory application succeeds, that may avoid the necessity for the substantive hearing.
30. [30]
    Ms McEwan argues that the interlocutory application has been delayed, and it could have been brought earlier.  There is some force in that submission.  However, a significant part of the delay occurred whilst both parties waited for the Court of Appeal’s decision on the subpoenas.  Neither party can be criticised for that.  And, it seems plain now that Ms McEwan proposes to prove her case by calling Crown prosecution witnesses.  That has alerted the respondents to the problem that Ms McEwan seeks evidence from the same witnesses as will give evidence in the criminal prosecution.
31. [31]
    Ms McEwan argues that the respondents’ interlocutory application will need to overcome “a high bar”.  If that is correct, Ms McEwan will succeed in resisting the interlocutory application and she will be free to proceed with her substantive application.
32. [32]
    Ms McEwan complains about the changes in the barristers for the respondents.  I am unable to see how that is relevant or how it causes her prejudice.
33. [33]
    On balance, as a matter of case management, the best course is to permit the respondents to bring the interlocutory application and to have it heard in the civil list for one day.
34. [34]
    Once that interlocutory application is heard and determined, the proceeding can be reviewed.