McEwan v Commissioner of Taxation
[2024] QSC 113
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- Unreported Judgment
- McEwan v Commissioner of Taxation[2024] QSC 113
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McEwan v Commissioner of Taxation[2024] QSC 113
McEwan v Commissioner of Taxation[2024] QSC 113
SUPREME COURT OF QUEENSLAND
CITATION: | McEwan v The Commissioner of Taxation [2024] QSC 113 |
PARTIES: | JULIE McEWAN (plaintiff) v THE COMMISSIONER OF TAXATION & ORS (first defendant) |
FILE NO/S: | BS 971/2022 |
DIVISION: | Trial |
PROCEEDING: | Application (Self-Represented Litigant List review) |
ORIGINATING COURT: | Supreme Court |
DELIVERED ON: | 5 June 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 May 2024 |
JUDGE: | Freeburn J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – where the Commonwealth defendants’ seek leave to bring summary judgment and strike out applications – where the applications are sought at a late stage - whether leave should be granted PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – where the plaintiff was previously granted leave to discontinue proceedings against the second defendant – where the proceedings were discontinued due to a possibility of delay caused by separate, parallel proceedings – where the parallel proceedings have been dismissed – whether leave should be granted for the plaintiff to re-join the second defendant PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – where leave was refused for the plaintiff to rely on prior affidavits – where the plaintiff filed a further affidavit that consolidated prior affidavits – whether the plaintiff can rely on the further affidavit PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – where the plaintiff was granted leave to amend the pleadings to remove the second defendant – where the plaintiff made further amendments – whether the plaintiff’s amended pleading should be allowed PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GROUNDS FOR RESISTING PRODUCTION – PRIVILEGE – CLIENT LEGAL PRIVILEGE – where the defendants’ claim legal privilege over a large amount of documents – where the plaintiff makes various challenges to the claims – where the plaintiff seeks that the documents be inspected – whether the court should exercise a discretion to inspect the documents |
COUNSEL: | The plaintiff was self-represented M McKechnie and K Boomer for the Commonwealth Defendants D Favell for the State Defendants |
SOLICITORS: | The plaintiff was self-represented Australian Government Solicitor for the Commonwealth Defendants Crown Law for the State Defendants |
REASONS
- [1]This proceeding is currently supervised on the Self-Represented Litigants list and has been set down for a 10 day trial commencing on 8 July 2024. At a review of the proceeding on 24 May 2024 six issues were argued.[1] Only five require a decision (the sixth was withdrawn).[2] The issues requiring resolution are these:
- Whether the Commonwealth defendants should have leave to bring an application for summary judgment;
- Whether the second defendant, Mr Rains, should be re-joined as a defendant in the proceeding – the proceeding having been discontinued against him in March;
- Whether Ms McEwan should have leave to amend;
- Whether Ms McEwan should have leave to rely on a further affidavit by way of her evidence-in-chief;
- Whether the defendant’s claims for legal professional privilege are well made.
Summary Judgment & Strike-Out Application
- [2]The case management of this proceeding has been some task. On 22 April 2024 I directed that the Commonwealth defendants file and serve:
- any submissions for leave to bring a summary judgment application; and
- a draft of any submissions that would be made in support of such an application – if leave were given.
- [3]The objective of those orders was to make transparent the basis of the Commonwealth defendants’ proposed application for summary judgment. The context is that the proceedings have been on foot for nearly 2½ years (the claim was filed in January 2022), and on 11 April 2024 the case was set down for trial on 8 July 2024.
- [4]The Commonwealth defendants argue that:
- summary judgment should be given to the first and third defendants (the Commissioner of Taxation and the Commonwealth Director of Public Prosecutions); and
- as against all Commonwealth defendants, Ms McEwan’s pleading should be struck out.
- [5]The Commonwealth defendants’ submissions, filed and served pursuant to the directions made on 22 April 2024, comprises some 17 pages of text and 45 pages in total including annexures. That volume of material illustrates at least a part of the difficulty confronting this application, especially at this late stage in the proceeding.
- [6]And so, the first difficulty confronting the Commonwealth defendants is that they need leave to bring an application for summary judgment application at a late stage in a supervised case. The trial has been set down and there have been, to put it mildly, numerous opportunities to bring such an application before now.
- [7]Even if leave were given to bring the application, for the Commonwealth defendants to succeed, the court must be satisfied that Ms McEwan has no real prospect of succeeding and that there is no need for a trial. If those conditions are satisfied the court has a discretion.[3]
- [8]If given leave to bring the application, the Commonwealth defendants seek summary judgment because they say there is no prospect of Ms McEwan succeeding because “her pleadings and evidence appear to be based on the literal or formal name of these persons (the Commissioner and the CDPP) … and a conflation of these persons with their organisation.”[4] They say those deficiencies are repeated in relation to other elements of Ms McEwan’s malicious prosecution claim.
- [9]The proposed application for summary judgment is not put on the basis that there is no allegation or evidence that the Commissioner and/or the CDPP played an active role in the conduct of the proceedings against Ms McEwan. The point made is merely that there is, in the evidence, a conflation of the personal role of the Commissioner and the CDPP with their organisation.
- [10]At trial, the court will be required to weigh the evidence and assess whether an active role was taken. It is an unattractive proposition to undertake that task six weeks or less before the trial. That is because, if the application for summary judgment were to proceed, then:
- the evidence relating to that issue would need to be tendered;
- the judge hearing the application may need to consider whether that evidence is complete, or whether there ought to be further evidence, or whether cross-examination ought to be permitted on the evidence;
- the parties will be entitled to make submissions concerning whether there is such a “conflation” and the extent of their personal role;
- the judge hearing the application will need to make a determination which considers the law and weighs the evidence on the issue;
- the parties will be entitled to consider and, if appropriate, prosecute any appeal rights.
- [11]The potential for the trial to be de-railed is great. And, given the breadth of the factual inquiry, the likelihood is that the application for summary judgment will become the phoney war before the real war of the trial.
- [12]The objective of the summary judgment procedure is to enable parties to make a direct and prompt application so that there is no need for a trial. Here, after lengthy and hard-fought interlocutory battles,[5] and only a few weeks out from a trial, the Commonwealth defendants seek to bring an application which is unlikely to finally resolve the dispute and will have the likely effect of distracting the parties from trial preparation.
- [13]On the other hand, if leave is refused and the case proceeds to trial, the Commonwealth defendants will be entitled to argue that neither the Commissioner or the CDPP played an active role and cannot be said to have been the ‘prosecutor’ of the subject proceedings. In other words, the Commonwealth defendants do not lose their right to put their argument. The trial is more likely to finally dispose of the real issues in the proceeding.
- [14]For those reasons, leave will be refused to bring the summary judgment application at this late stage.
- [15]The Commonwealth defendants also seek leave to bring an application to strike out Ms McEwan’s statement of claim. The attack is on what the Commonwealth defendants describe as Ms McEwan’s seventh further amended statement of claim (7FASOC). However, even that description of the pleading was the subject of debate. For present purposes I will refer to the pleading as the January statement of claim.
- [16]The attack on that pleading expressed in rather tepid terms, is as follows:
“The 7FASOC does not appear to plead or particularise:
37.1 when each Commonwealth Defendant is alleged to have commenced or maintained the prosecution, or if/when they ceased being a prosecutor on any particular date;
37.2 the material facts that specify what material it is alleged that each Commonwealth Defendant had available at that date;
37.3 no particulars appear to be given by the plaintiff in respect of her assertion there was “considerable evidence that exculpated” her: 7FASOC [23]; this is despite being ordered to do so in Particulars Judgment.[6]
37.4 the plaintiff was required to particularise when she alleged the Commonwealth Director continued the prosecution (Particulars Judgment (“[t]hat is a reasonable request for particulars. It will narrow the focus of the evidence and the trial”). Although an adjustment has been made at 7FASOC [34], this remains unclear because the plaintiff appears to conflate the Commonwealth Director with the CDPP.
37.5 the plaintiff was required to particularise when various individuals “held knowledge” (for example in relation to the Commonwealth Director at Particulars Judgment). This seems to remain deficient because it appears to conflate knowledge held of persons with that of their organisation; and does not particularise “when” such knowledge was held.
37.6 the plaintiff still uses the “ought reasonably to have known” (7FASOC [40](d), Particulars Judgment [190]-[191]).
37.7 the plaintiff fails to plead what constitutes a failure on the part of each defendant to make “basic and fundamental” “inquiries” or “investigations” (7FASOC at 28(c)(iii), 20(c) (iv), 28(c)(v), 31(c)(iii), 31(c)(iv), 31(c)(v), 35(c)(iii), 35(c)(iv), 35(c)(v), 39(a)(ii), 39(a)(iii), 39(a)(iv), 39(a)(v), 43(a)(iii), 43(a)(iv), 43(a)(v), 43(a)(vi), 47(a)(iii), 47(a)(iv), 47(a)(v), 47(a)(vi), 51(c)(iii), 51(c)(iv), 51(c)(v), 51(c)(vi)).
37.8 no material facts are pleaded to support the allegation that the prosecution was actuated by malice and no material facts are pleaded to specify the basis on which it is alleged each of the Commonwealth Defendants held no honest belief at the relevant dates (7FASOC at 28(e), 32(g), 36(e), 40(c), 44(d), 48(c), 52(d)).
37.9 in the context of the previous paragraph, no material facts are pleaded to support or explain the allegation that “undue pressure” was placed on “Ms McEwan and her defence” with respect to different proceedings (7FASOC at 29(e), 36(e), 40(c), 44(d), 48(c), 52(d)).
37.10 the plaintiff has not outlined the exact circumstances in which the loss or damage was suffered, how each defendant caused that loss or damage, and the basis on which the amount claimed has been worked out or estimated (7FASOC [115]-[116]). As noted above at [17] and [20], damage is an element.
37.11 the plaintiff conflates knowledge that she pleads was held by the ATO/CDPP with employees thereof (7FASOC at 21-24 (“The ATO, Mr Rains, CDPP, and the DPP had in their possession” various documents), cf27(c), 29(a), 31(c), 35(b)(a)(i), 39(b)(a)(i), 40(e), 41, 43(b)(a)(i), 45, 47(b)(a)(i), 48(a), 49, 51(b)(a)(i), 52(a), 52(a), 53)).”
- [17]The Commonwealth defendants say that Ms McEwan has had ‘numerous opportunities’ to plead and particularise her case and they point to the decision of Martin SJA in June 2022[7] when his Honour permitted Ms McEwan to replead with “some reluctance”. The difficulty for the Commonwealth defendants is that they have had ‘numerous opportunities’ to make their proposed application. Assuming the proceeding proceeds to trial in July, the proceeding will have spanned 30 months and the Commonwealth defendants propose to mount another attack on Ms McEwan’s pleading in month 28.
- [18]Again, the problem is the lateness of the application and the potential for delay and disruption to the proceeding. If leave to bring the application is given, then the parties will argue the merits of the 11 separate alleged problems with the pleading listed above. If the complaints are made out, then Ms McEwan is likely to seek to provide the missing particulars, or she may seek leave to replead, or she may appeal. All of that is to occur between now and the commencement of the trial. Presumably it is to occur whilst the parties are devoting time and energy to trial preparation. There is at least a reasonable prospect that they will be distracted from that task.
- [19]There is no adequate explanation for the delay in seeking leave.
- [20]I am conscious that there may well be inadequacies in Ms McEwan’s pleading. I identified one of those inadequacies in a judgment delivered on 12 December 2022 (in relation to particulars).[8] However, the parties have now filed and served their evidence-in-chief.[9] They are, presumably, preparing for trial based on the pleadings, and the evidence-in-chief. The Commonwealth defendants do not contend that the problems with Ms McEwan’s pleading means that they are unable to prepare for trial. And, even if Ms McEwan’s pleadings are inadequate that is likely to be a problem for her at trial.
- [21]In those circumstances, I refuse the application for leave to bring the strike-out application.
Re-Joinder of Mr Rains
- [22]On 5 March 2024 I gave Ms McEwan leave to discontinue these proceedings against the second defendant, Mr Rains. The reasons for granting that leave to discontinue are set out in McEwan v The Commissioner of Taxation [2024] QSC 26.
- [23]Ms McEwan decided to discontinue against Mr Rains because she was bringing parallel criminal proceedings by way of a private prosecution and, as a result of that parallel proceeding, Mr Rains was seeking a stay of this proceeding. To avoid the prospect of a stay Ms McEwan decided to discontinue these proceedings against Mr Rains.
- [24]In granting Ms McEwan leave to discontinue against Mr Rains it was ordered that, subject to leave of the court, Ms McEwan not be permitted to commence any further proceedings against Mr Rains based on the same allegations and causes of action.
- [25]The parallel proceedings against Mr Rains have now been dismissed for want of prosecution. Ms McEwan has given an undertaking to the court that she will not appeal that decision.
- [26]And so, Ms McEwan now seeks to reinstate Mr Rains as second defendant.
- [27]The Commonwealth defendants say that what Ms McEwan is actually doing is seeking to withdraw her discontinuance against Mr Rains. Whether Ms McEwan’s application is characterised in that way, or as an application to amend so as to add a “new” party, does not matter. In either case the issue is one for the exercise of a case management discretion.
- [28]The Commonwealth defendants also quote from the following passage in the reasons of 5 March 2024:
“[25] In all the circumstances, it is hard to see any justification for Ms McEwan discontinuing against Mr Rains now, only to bring similar proceedings against him at some time in the future. However, for the reasons explained above, the condition should be subject to the leave of the court. That will enable a court to assess whether it is proper, in the circumstances, for Ms McEwan to be permitted to continue to fight this war on another front. No doubt the court hearing such an application will take into account the result of this proceeding, the precise formulation and merits of the proposed claim, and Ms McEwan’s reasons wishing to re- activate her litigation against Mr Rains.” [emphasis added]
- [29]That passage is directed to the vice of Ms McEwan bringing “similar proceedings” against Mr Rains in the future. The passage was not directed to the possibility that Mr Rains might be re-joined to the existing proceedings that he has been a party to since January 2022.
- [30]Ms McEwan is obliged to persuade the court that she should be permitted to “undo” her election and re-agitate her claims against Mr Rains. The decision on 5 March 2024 is not a bar to re-joining Mr Rains, and it is true that Ms McEwan made a tactical election to discontinue against Mr Rains.
- [31]In my opinion, however, there are good reasons for permitting the re-joinder.
- [32]First, the litigation has proceeded against the defendants, including Mr Rains, since January 2022. Mr Rains has been represented by the Australian Government Solicitor since then. A defence has been filed on Mr Rains’ behalf. Mr Rains had separate representation from Ashurst Australia in respect of the parallel proceedings. It is safe to assume that Mr Rains’ legal interests have been adequately protected and that all relevant affidavits or witness statements have been prepared. There is little or no prospect that information has been lost, memories have faded, or that Mr Rains is not otherwise in a position to properly defend himself.
- [33]Second, the “interval” in which Mr Rains was not a party to this proceeding, that is from 5 March 2024 until now, is relatively short. No information or instruction are likely to have been lost or forgotten or disposed of.
- [34]Third, and this is related, the Commonwealth defendants do not contend that either they or Mr Rains is prejudiced by the “re-joinder” or that Mr Rains cannot be ready for the trial.
- [35]The Commonwealth defendants do assert a particular type of prejudice[10] but that prejudice is alleged to be Mr Rains’ exposure to the “never ending trench warfare”. That is predicated on the prospect of further similar litigation.
- [36]Fourth, if Mr Rains is not re-joined to the proceeding, whatever the result in this litigation, Ms McEwan would be able to seek the court’s leave to litigate against Mr Rains on the basis that her claims against him have not been adjudicated. The preferable course is to have all parties bound by the result in this litigation, rather than leaving open the prospect of multiple court proceedings.
- [37]For those reasons, I will permit Mr Rains to be re-joined as second defendant.
Amendments to the Statement of Claim
- [38]Ms McEwan’s statement of claim has been through a number of revisions. The more recent amendments are controversial.
- [39]For present purposes, the relevant version of the statement of claim is the fifth revised statement of claim filed on 12 January 2024. That was the version that included the claims against Mr Rains, and it was the version that was current when the defendants filed and served their affidavits by way of evidence-in-chief.
- [40]At a review on 22 April 2024, I gave Ms McEwan leave to amend her statement of claim so as to delete the claims against Mr Rains. At the review this relatively simple step became murky:
“HIS HONOUR: Costs reserved. So, I’ll go through the orders. I think there are nine of them. The first is that the trial be set down for 8 July 2024. The second is Ms McEwan file and serve her amended statement of claim deleting the claims against Mr Rains, and I think you’re going to do that within a week, Ms McEwan?
PLAINTIFF: Seven days
HIS HONOUR: That’s the 29th of ---
PLAINTIFF: Sorry, can I just clarify that? Just for my benefit. Mr Rains is removed as a defendant, but I still make claims against him. He’s just not liable. That’s what the understanding is. There’s no liability, but I’m making allegations against him, because he was the informant to the Brisbane Angels. So, he has to be in that whole story. He is – he was - under the delegation of the Tax Office.
HIS HONOUR: Ms McEwan, I had thought that what you were deleting is your claims against Mr Rains, and that in so far as the narrative referred to in your pleading talks about Mr Rains being part of it, you would retain any of that, but the claims against Mr Rains are to be deleted.
PLAINTIFF: That was never my understanding, your Honour. So, making a claim under a cause of action for him; I’m saying he’s not personally liable as a defendant. He was working under the delegation of the Tax Office. That is my understanding by an agreement to remove him as a party, and that’s what I’ve also maintained. He worked for the Commissioner of Taxation.
HIS HONOUR: But he’s not a party. You cannot bring a claim against him.
PLAINTIFF: I’m not bringing a claim against him. I think we’re ---
HIS HONOUR: We’re across purposes.
PLAINTIFF: We’re across purposes.
HIS HONOUR: Anyway, why don’t you do your pleading; but at the moment, the order will be the – you are deleting the claims against Mr Rains.
PLAINTIFF: Thank you.”[11]
- [41]Ms McEwan filed and served her sixth revised statement of claim on 8 May 2024. Unfortunately, Ms McEwan took the opportunity to make further changes to her statement of claim – beyond simply deleting the claims against Mr Rains.
- [42]The changes Ms McEwan has made are an eclectic mix.[12] The principal changes[13] seem to be these:
- The Commissioner is now said to be “responsible for the actions of Mr Rains, Mr Challans and Ms Smith as ATO officers employed to assist the Commissioner under delegation”;
- Mr Rains is said to have “acted under delegation”;
- Two new persons are referred to – Mr Brett Challens and Ms Jacqueline Smith; they are said to be ATO employees who “acted under delegation from the Commissioner”;
- A new paragraph 8 has been inserted as follows:
On or about 25 January 2018, Mr Rains was engaged by Mr Challens in respect of the Venika Biotech Investigation and was handed documents obtained by Mr Challens during the course of a compulsory interview of the plaintiff conducted pursuant to section 353-10 of Schedule 1 of the TAA [Taxation Administration Act 1953].
- A new paragraph 13a is inserted as follows:
The QPS/ATO Agreement was signed by Ms Smith on behalf of the Commissioner and in the absence of any input from the BA Parties or evidence of the BA’s Fraud Complaint.
- A new paragraph 14A is inserted as follows:
On or about 18 July 2018, Mr Rains sent an email to the QPS informing that he had contacted Mr Hoult and notified him that the Plaintiff had misappropriated the BA Investment and requested the QPS to encourage the BA Parties to make a complaint.
- In paragraph 19 the following sub-paragraphs have been added:
On or about:
(aa) 31 July 2018, Officer Holt requested Mr MacTaggart, Mr Hoult and Mr Monaghan provided statements to the QPS;
(ab) 7 August 2018, Mr MacTaggart, Mr Hoult and Mr Monaghan provided statements to Officer Hoult and the QPS.
- Ms McEwan added only one word to paragraph 27 – but it is a word of some legal significance:
The Commissioner instituted and continued the Prosecution maliciously. (added word underlined).[14]
- The following underlined words were added to the particulars in paragraph 27(a):
The investigation and Prosecution was instituted by virtue of the QPS/ATO Agreement, instrumental to which was the actions of Mr Rains and Ms Smith as pleaded herein.
- In paragraphs 30, 31, 32 and 74 Ms McEwan has pleaded certain actions of Mr Rains. In each case she has altered, in effect, “Mr Rains …” to “Mr Rains, on behalf of the Commissioner …”
- In paragraph 30.1 the following underlined words have been added:
Mr Rains –
- provided the BA Parties with personal financial documents of and related to Ms McEwan and documents from Ms McEwan’s accountant that had been obtained under warrant and under Division 353 of Schedule 1 of the TAA for which he was not authorised to do because the material is protected information (as defined under the TAA).
- In paragraphs 76 and 77 Ms McEwan has added words to the effect that Mr Rains was acting under delegation of the Commissioner.
- Ms McEwan has changed the exemplary damages claim from a claim for $1m to a claim for $900,000 ($100,000 for each of the defendants) and a special damages claim of $70,000 for her costs of defending the QPS Charge.
- [43]There are other changes, but the list above are the changes that may matter.
- [44]Ms McEwan did not have leave to re-write her pleading, or to make substantive changes. She was given leave to amend the pleading so as to delete the claims against Mr Rains.
- [45]Ms McEwan raises a number of arguments in support of her amended pleading.
- [46]First, Ms McEwan says that she has in fact removed Mr Rains as a defendant (although he now needs to be added back in). That is true. But, as the list above shows, Ms McEwan has gone much further.
- [47]Second, Ms McEwan says that Mr Rains was “under the Commissioner’s delegation”. I do not understand that, and I do not understand how it is relevant to Ms McEwan’s claims or why the allegation is being made at this late stage. A law or regulation may give a statutory office holder power to delegate some or all of that office holder’s responsibilities. Much depends on the law or regulation, and the specific powers that are delegated. Here, the pleading does not identify any of the details of the delegation. And, it is difficult to see how it is relevant. As I understand it, Mr Rains was an ATO officer and, presumably, nobody contends that he was acting other than in the course of his employment.
- [48]Third, Ms McEwan refers to Queensland v JL Holdings Pty Ltd.[15] Ms McEwan quoted from the judgment of the primary judge, Kiefel J, to the effect that the amendment sought touched on a core issue. However, her Honour refused leave to amend because it would jeopardise the trial dates. The judgment of Kiefel J was upheld by the Full Court of the Federal Court but was set aside by the High Court.
- [49]In any event, that was in 1997. In 2009, in Aon Risk Services Australia Ltd v Australian National University[16] the High Court considered that Queensland v JL Holdings should not be regarded as an authoritative. In that case, the High Court (which coincidentally included Kiefel J) held that a party did not have an entitlement to amend a pleading subject only to an order for costs. They held that all matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs and their effect on the parties, the court and other litigants – that is the concerns of case management – would assume importance on an application for leave to amend. Relevant matters would also include the nature and importance of the amendment to the party applying, the stage the litigation had reached when the amendment was sought, and the explanation for any delay in applying for amendment.
- [50]It is difficult to discern how Ms McEwan seeks to deploy those principles. She has not explained the delay. It is not clear how the amendments will affect the progress of the case to trial. The defendants have not yet had an opportunity to explain whether they will need to amend or add to their evidence. Ms McEwan says the amendments are necessary and touch on what have always been regarded as core issues. I reject that broad statement. It is true that some of the amendments sought appear to be relatively minor. Some are deletions and so are unlikely to cause problems for the defendants. Some of the amendments seek to add what appears to be evidence rather than material facts.
- [51]Of more concern are what appear to be substantive amendments. For example, the introduction of the conduct of Mr Challens and Ms Smith may well require the defendants to review their disclosure and their evidence. And the references to the delegation are lacking in clarity and particulars.
- [52]All of this is in the context where I have not heard argument on why the amendments are necessary and whether they are likely to cause prejudice to the defendants.
- [53]For those reasons, I will order that the claim and statement of claim filed and served on 8 May 2024 be struck out. The case will proceed on the basis of the January 2024 pleading – which includes the claim against Mr Rains.
- [54]If Ms McEwan considers that any amendments to that pleading are needed, she will be required to apply for leave to amend. That application should properly identify the proposed amendments.
- [55]Ms McEwan has proffered a more recent and further version of her statement of claim. It has not been filed and is described as the seventh revised statement of claim. It is dated 24 May 2024 – the date of the last review. Suffice it to say that, again, if amendments are sought Ms McEwan will need to make an application which will need to address the discretionary factors considered in Aon Risk Services (discussed above). In particular, it will be necessary to consider the nature and importance of each proposed amendment.
- [56]It is relevant to note that the January 2024 version of the statement of claim is a lengthy and challenging document. However, the defendants have based their evidence and their preparation for trial on that pleading. The defendants ought not to be prejudiced by having to not simply deal with a challenging pleading but also having to cope with a continually moving target.
New Affidavit
- [57]On 29 November 2023, pursuant to directions as to evidence-in-chief, Ms McEwan filed and served her affidavit that she proposes to rely on at trial. That affidavit was then responded to by the defendants in their evidence-in-chief.
- [58]At the review on 20 March 2024 Ms McEwan said she wished to rely on further affidavits. Directions were made requiring Ms McEwan to identify the further affidavits she proposed to rely on and requiring the defendants to state whether they objected. Ms McEwan then supplied a list of 25 affidavits and some submissions intended to form part of her evidence-in-chief. The defendants objected.
- [59]On 1 May 2024 I refused Ms McEwan leave to rely on the further 25 affidavits and the submissions.[17] The reasons delivered that day explain the problems with the proposed further affidavits – including that the further material was not shown to be relevant.
- [60]On 14 May 2024 Ms McEwan filed a further affidavit. It is an intimidating and lengthy affidavit. The text of the affidavit comprises 584 paragraphs over some 81 pages. The exhibits to the affidavit are rather jumbled, and are not properly paginated, and comprise hundreds of pages. Paragraph 1 of Ms McEwan’s affidavit says that “this affidavit is a consolidation of my evidence in chief filed 27 November 2023 and the twenty-five affidavits relied on that are filed in this proceeding”. Ms McEwan says: “The exhibits were not annexed to the 27 November 2023 affidavit because I did not understand that process.”.
- [61]It can be accepted that the civil litigation process is not easily understood. But the objective of the new affidavit appears to be to put before the trial judge every possible document that may have any connection to the issues. It includes emails, FOI requests, transcripts of proceedings, statements, and affidavits of witnesses.
- [62]Properly assessing the relevance and import of the documents would be a significant undertaking. And, if this affidavit were intended merely to supply the documents not annexed to the 27 November affidavit, it is hard to understand why Ms McEwan does not simply propose an indexed and paginated bundle of those documents that were omitted – such a process would hardly require an affidavit stretching over 584 pages.
- [63]Previous directions of the court were designed to try to isolate in a bundle those documents comprising the ‘brief of evidence’ at relevant points. Ms McEwan pleads that she was charged on 22 August 2018 and that a nolle prosequi was entered on 12 May 2021. She says that ‘no case’ submissions were made (and rejected) on 8 July 2019, 19 March 2020 and 28 August 2020. It can hardly be said to be difficult to identify what was in the briefs of evidence at those times.
- [64]I refuse Ms McEwan’s leave to rely on this further affidavit. It imposes too great a burden on the trial judge and the defendants.
- [65]The preferable course is for the parties to meet with the Resolutions Registrar to consider and plan how the trial and, in particular, the documents will be dealt with efficiently and properly. If that process is unsuccessful then the issue of how the evidence is presented at trial can be the subject of further directions (by the trial judge or by me).
Legal Professional Privilege
- [66]At the review on 20 March 2024 Ms McEwan claimed that the defendants had not properly claimed legal professional privilege over documents that were otherwise disclosable. For that reason, the court made orders for Ms McEwan to identify those documents in respect of which she challenged the claim of privilege and for her to file submissions as to why the claims or privilege were not legitimate.
- [67]Ms McEwan then provided two documents – “Reply to Claims of Privilege (to the Commonwealth Defendants)” and “Reply to Claim of Privilege (to the States Defendants”.[18]
- [68]At the review on 22 April 2024 I ordered the defendants to file joint submissions on the privilege. They have done so. The joint submissions were filed on 7 May 2024.
- [69]The joint submissions explain, in some detail, the principles relating to legal professional privilege and the defendants’ answers to Ms McEwan’s challenge to the claim of privilege. It is worth noting the reference, in the joint submissions, to Director of Public Prosecutions (NSW) v Stanizzo.[19] That case bears a similarity to this case. There, the plaintiff, Mr Stanizzo, sued the defendant (the State of NSW) for malicious prosecution. By a subpoena Mr Stanizzo sought documents from the Director of Public Prosecutions. The director claimed legal professional privilege over 77 documents which were listed and described.
- [70]The New South Wales Court of Appeal upheld the claim of privilege.
- [71]A case referred to in Stanizzo is Hamilton v New South Wales.[20] There, Beech-Jones J dealt with communications recording meetings and telephone conversations between solicitors of the Office of the DPP or Crown Prosecutors and police officers. His Honour found that the nature of the relationship, the role of the parties in discharging their statutory functions, the topic of the relevant communications, being the strength and the weaknesses of the prosecution case and possible lines of inquiry, and the purpose and context of the communications implied an obligation of confidentiality and accordingly were subject to legal professional privilege.
- [72]Ms McEwan makes a number of points. First, she says that some 2,500 documents within Tranche 2 of disclosure and 700 documents within Tranche 3 are comprehended by the Commonwealth defendants claim of privilege. The sheer number of documents is not decisive. In a fraud case it is not surprising that there would be many communications back and forth between the DPP, and the police and ATO officers. Even the three ‘no case’ submissions were likely to prompt legal advice and confidential communications. Consequently, the sheer number of documents do not cause concern that the privilege has not been legitimately claimed or a concern that there is some error of principle behind the claim.
- [73]Second, Ms McEwan submits that there is no visibility for the claim of privilege. Presumably this is a criticism of the description of either the document or the claim of litigation privilege. I am unable to see a problem with either.
- [74]Third, Ms McEwan says that the document needs to be clearly marked as legal advice and the defendants must identify the basis on which that advice is given and to whom. That is not the law. Legal professional privilege protects confidential communications brought into existence for the dominant purpose of obtaining or giving legal advice (legal advice privilege) or for the dominant purpose of the conduct of, or use in, existing or anticipated litigation (litigation privilege). For legal advice privilege, it is the communications between the lawyer and the client that are privileged – not just the ultimate advice of the lawyer. And, whether the communication is labelled as legal advice is of little or no significance.
- [75]Fourth, Ms McEwan makes this submission:
All documents that relate to this proceeding were bought into existence during the course of a criminal prosecution “litigation” therefore, relying on this reason is disingenuous, and being done for an improper purpose to not disclose relevant disclosure. Every document that relates to the Brisbane Angels investment and subsequent criminal prosecution [litigation] is relevant and disclosable under the rules.
- [76]The defendants’ principal privilege claim is that the document are confidential communications brought into existence for the dominant purpose of the conduct of, or use in, existing or anticipated litigation (litigation privilege). The fact that the litigation was a criminal prosecution does not preclude the privilege.[21]
- [77]No improper purpose has been shown.
- [78]And the disclosure rules do not overrule claims of privilege.
- [79]Fifth, Ms McEwan submits that only litigation privilege, not legal advice privilege can attach to communications with third parties, such as experts. There is no such limit on the privilege.
- [80]Sixth, Ms McEwan refers to waiver, statutory exclusions, improper or illegal conduct, and fraud. Merely listing the legal categories does not assist. None are established by the evidence.
- [81]Seventh, Ms McEwan submits that, given that she is self-represented, and the Commonwealth and State defendants are “sophisticated litigants”, it is appropriate that the court oversee the disclosure process and independently review all of the documents to ensure that the privilege is properly claimed.
- [82]Ms McEwan also claims that she should have access, in a private room, to view the documents.
- [83]No principle justifies the court treating self-represented and sophisticated litigants any differently in this context. As Ms McEwan herself points out, legal professional privilege is both a rule of substantive law and an important common law immunity.[22]
- [84]The circumstances in which a court will exercise the power to inspect the documents over which privilege is claimed were explained by Lockhart J in Trade Practices Commissioner v Sterling.[23] There His Honour said:
It is not open to doubt that the court has power, in a proper case, to inspect documents where a claim of privilege is made to resist an application for inspection of documents by the opposite party. See Grant v Downs, and Westminster Airways Limited v Kuwait Oil Co. Limited. However, it is as well to bear in mind what was said by Jenkins L.J. in Westminster Airways Limited v Kuwait Oil Co. Limited: “But there is nothing in the rule, or in the authorities, to constrain the court to hold that, in every case where a claim to privilege is made and disputed, the party seeking production is entitled to come to the court and (as it were) demand as of right that the court should go behind the oath of the opposite party and itself inspect the documents. The question whether the court should insect the documents is one which is a matter for the discretion of the court, and primarily for the judge of first instance. Each case must depend on its own circumstances; but if, looking at the affidavit, the court finds that the claim to privilege is formally correct, and that the documents in respect of which it is made are sufficiently identified and are such that, prima facie, the claim to privilege would appear to be properly made in respect of them, then, in my judgment, the court should, generally speaking, accept the affidavit as sufficiently justifying the claim without going further and inspecting the documents.
- [85]I decline to exercise the discretion to inspect the documents. There is no reason for doubting the claims. Ms McEwan points out that an email (attached to her submissions) has been obtained and is obviously not privileged. I disagree. The email involves a discussion between Ms McGregor, a legal officer within the DPP and an investigating police officer. The very first paragraph commences: “Is there any way we can positively prove…”. The only reason the document is no longer privileged is that because the document has been disclosed in the course of the prosecutor’s duty of disclosure in separate proceedings.
- [86]For those reasons Ms McEwan’s challenge to the claim of privilege is not made out and I decline to exercise the discretion to inspect.
Footnotes
[1] In argument there was reference to five arguments but one of those issues was, in reality, two issues (see issues (b) and (c) below).
[2] That was an issue concerning an alleged conflict of interest.
[3] See Uniform Civil Procedure Rules 1999 rule 293(2); see also Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2012] QSC 211 at [54]; Haggarty v Wood (No 2) [2015] QSC 244 at [78]-[82].
[4] Commonwealth Defendants’ Submissions at [31].
[5] See, for example, McEwan v The Commissioner of Taxation of the Australian Taxation Office and Ors [2022] QSC 81 and McEwan v The Commissioner of Taxation and Ors (No 2) [2022] QSC 97.
[6] The reference to the Particulars Judgment is a reference to McEwan v Commissioner of Taxation [2022] QSC 279.
[7] [2022] QSC 81.
[8] [2022] QSC 279 at [12].
[9] This is subject to an argument that Ms McEwan wishes to put into evidence a further affidavit. That issue is discussed below.
[10] See paragraph 10(b) of the submissions of the Commonwealth defendants.
[11] For the purposes of clarity, I have made some minor cosmetic corrections to the transcript.
[12] An affidavit of Ms Gill (AGS) lists the alterations, some of which are underlined so as to identify the changes, and some of which are not.
[13] I have not listed deletions or what appear to be minor changes.
[14] Note that paragraph 29 uses the word “maliciously” at the end of an identical sentence.
[15] (1997) 189 CLR 146.
[16] (2009) 239 CLR 175.
[17] See McEwan v Commissioner of Taxation [2024] QSC 70.
[18] These documents appear not to have been filed but they are referred to in the Joint Submissions (filed 7 May 2024).
[19] [2005] SASC 19 at [23]-[27].
[20] [2016] NSWSC 1213 at [38]-[40].
[21] See, for example, Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121.
[22] SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64.
[23] [1979] FCA 33 at [5].