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McEwan v Commissioner of Taxation[2024] QSC 252

McEwan v Commissioner of Taxation[2024] QSC 252

SUPREME COURT OF QUEENSLAND

CITATION:

McEwan v The Commissioner of Taxation [2024] QSC 252

PARTIES:

JULIE McEWAN

(plaintiff)

v

THE COMMISSIONER OF TAXATION & ORS

(first defendant)

FILE NO:

BS 971/2022

DIVISION:

Trial

PROCEEDING:

Application (Self-represented Litigant List review)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers. Brief submissions were made on 25 September 2024.

JUDGE:

Freeburn J

ORDERS:

  1. Subject to paragraph 2, the plaintiff’s application to further amend her statement of claim is refused.
  2. The plaintiff may amend her pleading so as to add paragraphs in accordance with the following paragraphs of the draft statement of claim delivered on 26 August 2024:
    1. a.
      paragraph 17.1(a), but not paragraph 17.1(b) and (c);
    1. b.
      paragraph 27(b);
    1. c.
      paragraph 30.1(c);
    1. d.
      paragraph 34(a)(v) and (vi);
    1. e.
      paragraphs 34(a)(i), 35(b)(iii), 39(b)(iii), 43(d)(iv), 47(d)(iii), 51(d)(iii), 55(d)(iii) and 59(d)(iv);
    1. f.
      paragraphs 23, 27, 29, 30, 31, 32, 34, 36, 39, 40, 43, 47, 48, 51, 54, 55, 59, 63 and 64 – but only so as to delete the heading ‘Particulars’;
    1. g.
      the ‘further exemplary damages’ claimed in paragraph 116(3) - on the basis that it does not add to the damages claims made in paragraph 115.
  3. The plaintiff’s application to add to her evidence-in-chief is refused.
  4. I will hear the parties on costs and on further directions.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS, PLEADINGS ETC – where the plaintiff previously made unsuccessful attempts to amend the statement of claim – where the plaintiff seeks to rely on a further statement of claim – where trial dates were previously vacated – where the defendants oppose certain amendments on grounds, some being relevance, lack of clarity and particulars – whether the court should grant leave

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – where the plaintiff previously unsuccessfully sought leave to rely on affidavits – where the plaintiff seeks leave to rely on a further affidavit that does not have significant differences to the previous affidavits leave was refused for – whether the court should grant leave

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 378, r 379

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, applied

Hartnett v Hynes [2009] QSC 225, applied

McEwan v The Commissioner of Taxation of the Australian Taxation Office and Ors [2022] QSC 81, related

McEwan v The Commissioner of Taxation of the Australian Taxation Office and Ors (No 2) [2022] QSC 97, related

McEwan v Commissioner of Taxation [2022] QSC 279, related

McEwan v Commissioner of Taxation [2024] QSC 26, related

McEwan v Commissioner of Taxation [2024] QSC 70, related

McEwan v Commissioner of Taxation [2024] QSC 113, related

Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267, explained

The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2008] QCA 224, cited

COUNSEL:

The plaintiff appeared on her own behalf

T McDonald SC, M McKechnie and K Boomer for the Commonwealth defendants

D M Favell for the State defendants

SOLICITORS:

The plaintiff appeared on her own behalf

Australian Government Solicitor for the Commonwealth defendants

Crown Law for the State defendants

  1. [1]
    This proceeding has had a torturous history as shown by the number of interlocutory judgments this court has delivered:
    1. McEwan v The Commissioner of Taxation of the Australian Taxation Office and Ors [2022] QSC 81;
    2. McEwan v The Commissioner of Taxation of the Australian Taxation Office and Ors (No 2) [2022] QSC 97;
    3. McEwan v Commissioner of Taxation [2022] QSC 279;
    4. McEwan v Commissioner of Taxation [2024] QSC 26;
    5. McEwan v Commissioner of Taxation [2024] QSC 70;
    6. McEwan v Commissioner of Taxation [2024] QSC 113.
  2. [2]
    At one point in time, the matter was set down for trial commencing 8 July 2024. However, problems with the proceeding meant that the trial dates were vacated on 10 June 2024. Presently, trial dates have not yet been reallocated. One of the reasons why the proceeding has not been allocated a second trial date is that the Commonwealth defendants[1] are reluctant to complete their evidence-in-chief whilst the pleadings are in a state of flux.
  3. [3]
    On the same day that the trial dates were vacated, Ms McEwan sought to rely on a proposed amended statement of claim and a proposed further affidavit by way of evidence-in-chief. The present issue is whether Ms McEwan should be permitted to rely on her proposed amended statement of claim and her proposed further evidence-in-chief. As will be seen, Ms McEwan has moved the goalposts by sending different versions of these documents. And so, a preliminary issue is ascertaining precisely what documents Ms McEwan seeks to rely on.

Leave to Amend – but which pleading?

  1. [4]
    Ms McEwan has circulated various versions of her pleading to the parties and my associate. This has led to confusion. The confusion remains even after correspondence with the parties, sets of submissions, and reviews of the matter. The difficulty of identifying the correct version presents an issue because it creates a moving target for the Commonwealth and State defendants, who face the task of considering and making submissions on different versions of pleadings that may have minor or major changes.[2]
  2. [5]
    As a result, the Commonwealth defendants and State defendants have each compiled two sets of submissions for this leave application.[3] There is another issue. The process of tracking the amendments in the versions of Ms McEwan’s pleadings has varied. As the State defendants note:[4]

The task of assessing the July SOC and more recently, the August SOC has been difficult. Not all of the proposed amendments are identified properly. In some places, words have been deleted entirely (rather than struck through). In other places, the words have been inserted without any underlining. Elsewhere, some passages are underlined, when in fact they are not new at all… [sections and footnotes omitted]

  1. [6]
    Up to July 2024 Ms McEwan had formally amended her statement of claim on around 6 occasions since the proceeding was commenced on 21 January 2022 and she has sought leave to amend on a number of other occasions. Ms McEwan’s latest proposed statement of claim was notified on 8 July 2024. Then, at a review on 28 August 2024, Ms McEwan indicated that she sought to rely on a further amended statement of claim that was emailed to my associate on 25 August 2024. On 28 August 2024 I made an order that a previous leave application made by Ms McEwan in June be deemed to be an application for leave to file and serve the revised statement of claim served on 25 August 2024.
  2. [7]
    Following emails with my Associate, and statements at the most recent review on 25 September 2024, it turned out that Ms McEwan actually sought to rely on a statement of claim attached to an email on 26 August 2024:[5]

PLAINTIFF: … I mean, it’s really – we’re just – it’s over one date, so have filed that statement of claim so your Honour can see it’s attached to my affidavit. I believe it’s 13th of September. That was the statement of claim that I’m relying on. At the last review, Mr McKechnie had mistaken that the – the date relied on for the statement of claim, as per the orders, but it was actually the following date. The 26th of August is when I filed that statement of claim to your Honour. The other point - - -

HIS HONOUR: So – but, in any event, you say the one that you’re relying on is the 13th of September.

PLAINTIFF: It’s actually attached to my affidavit, so what I’m saying is I’m relying on the statement of claim that was emailed on the 26th of August that is attached to my affidavit. [emphasis added]

  1. [8]
    Then, counsel for the Commonwealth defendants said:[6]

MR McKECHNIE: … that pleading that was attached to Ms McEwan’s affidavit of the 13th of September is not the same as the one that was served on the 25th of August. So pursuant to your Honour’s orders we are having this fight about the pleading dated 25 August, and then otherwise I join with my learned friend’s submissions. [emphasis added]

  1. [9]
    At that review, the State defendants indicated that they rely on their written submissions which, as with the submissions of the Commonwealth defendants, are addressed to the pleading emailed to my associate on 25 August 2024.
  2. [10]
    Amongst the various latest versions of the statement of claim, there are three candidates which might be considered Ms McEwan’s proposed latest pleading for which she seeks leave.  I have undertaken the task of comparing them. The candidates are the proposed statement of claim sent by email on 25 August 2024, the proposed statement of claim sent by email on 26 August 2024, and the proposed statement of claim attached to the affidavit of 13 September 2024. For convenience, I will refer to the different versions by their date.
  3. [11]
    In emails sent to my associate there was some confusion as whether Ms McEwan was seeking leave to file and serve the 25 August version, or the 26 August version. Ms McEwan maintains that the 26 August version is the ‘right’ version, but the contents of her affidavit suggest that she says that because it is the version she wishes to proceed with. In any event, my analysis shows that both those versions of the pleading are essentially identical.
  4. [12]
    As the parts of the transcript extracted above show, Ms McEwan informed the court that the 13 September version was the same document as the 26 August version.[7] In her affidavit of 13 September 2024, Ms McEwan says:[8]

When I went home to review my emails, I realised that the final version emailed to the court was 26 August 2024. It is this version that I rely on to file in these proceedings, a copy is annexed to my affidavit.

  1. [13]
    However, whilst the versions of 25 and 26 August are essentially the same, the 13 September version is a different document. The 13 September version has 62 pages. The 26 August version has 61 pages. In fact, Ms McEwan’s affidavit of 13 September 2024 explains that new additions to paragraph 10 have been inserted into the pleading attached to her affidavit. The additions are sub-paragraphs 10(b)(i)(C)-(E) and a number of further paragraphs where those paragraphs are cross-referenced.[9] There are also other deletions and insertions into the document that may or may not have some significance. The formatting has changed in some parts.
  2. [14]
    These particular amendments are not explained, and the defendants have not made submissions on them.
  3. [15]
    I am unable to understand why:
    1. Ms McEwan says that she relies on the 26 August version, but exhibits to her affidavit the 13 September version – which, as explained, is different;
    2. Ms McEwan propounds the 26 August version as the final version when her own affidavit identifies changes she has made to that version;[10]
    3. All the changes are not properly identified.
  4. [16]
    Ms McEwan says that the proposed change to paragraph 10, that is the addition of sub-paragraphs 10(b)(i)(C)-(E), is because:

…it has come to my attention that Mr Rains took a further statement from Alan Monaghan dated 23 May 2019 and never disclosed this. It is in the possession of the CDPP and never disclosed. Two exhibits VENIK00268 and VENIK00269 were not included in the brief of evidence, once [sic] affidavit has never been disclosed to me despite being in possession of the ATO and the CDPP…[the three documents are then listed]

  1. [17]
    The intention appears to be to assert that there was poor behaviour by Mr Rains, and the CDPP and ATO, in failing to disclose to Ms McEwan the three documents (or perhaps one document if the two exhibits are part of the statement). At first blush, this allegation of poor behaviour has no relevance to either the malicious prosecution case or to the alternative case of misfeasance in public office.[11] However, paragraphs 29(c), 32(d), 36(c)(i), 40(d), 48(d)(i) and 52(e)(i) of the proposed statement of claim make it plain that Ms McEwan alleges that the failure of the Commissioner, Mr Rains, the Commonwealth Director, Mr Micairan, Ms Williams and Ms Devereaux to disclose those documents to Ms McEwan is a basis for her allegation that the prosecution was continued maliciously.
  2. [18]
    At the trial, Ms McEwan may seek to establish malice directly, by alleging some improper motive on the part of the defendants.[12] Or Ms McEwan may seek to prove malice indirectly by showing that, in the circumstances, the prosecution can only be accounted for by imputing some wrong and indirect motive in the prosecutor.[13] However, much depends on the precise circumstances, including the reasons for the non-disclosure, the timing of the non-disclosure, and the content of the statement that was not disclosed. A failure to disclose a relevant statement could be attributable to a mistake, or ineptitude, or inattention to proper procedures, or even a lack of resources. None of those reasons for failing to disclose the statement establishes or supports the allegation of that the bringing of the prosecution against Ms McEwan was motivated by malice.[14] It is possible, though, that a deliberate withholding of a witness statement might, along with other evidence, be some evidence of malice.
  3. [19]
    Unfortunately, neither party has grappled with these issues. Ms McEwan has not addressed the substance of her amendments because she claims she can amend as of right (see the discussion below) and because she says that the version in respect of which she seeks leave is the 26 August 2024 version subject to the changes she identifies in her affidavit of 13 September 2024 – none of which actually identify the changes to paragraphs 29(c), 32(d), 36(c)(i), 40(d), 48(d)(i) and 52(e)(i). The defendants have not addressed the 13 September version of the pleading because there is no formal application by Ms McEwan for leave to amend in accordance with that version. The defendants, in effect, made submissions on the 25 August version because that was the version Ms McEwan had advised the court and the defendants she wished to pursue. Not surprisingly, the defendants are resistant to Ms McEwan continually moving the goal posts.
  4. [20]
    The problem for the court, and for case management in particular, is that the case is essentially paralysed whilst the pleadings are in a state of flux. Quite reasonably, the Commonwealth defendants do not wish to complete their evidence-in-chief by affidavit, and in particular the affidavit of Mr Rains, until the pleadings are settled.
  5. [21]
    Ms McEwan is self-represented. However, whether parties are represented or self-represented, access to basic modern computers and the advantages of Word applications means that it is a relatively easy exercise to track or even manually mark any changes to an electronic version of a document. For that reason, it is something of a mystery as to why Ms McEwan has made changes to her pleading without properly identifying the changes for the parties and for the court.
  6. [22]
    In any event, the problem is that Ms McEwan has formally sought leave to amend in accordance with the 25 August version she delivered in accordance with the court’s orders (which happens to be the same as the 26 August version). She continues to maintain that she seeks leave in accordance with the 25 or 26 August versions. But, in reality, and in substance, Ms McEwan now seeks leave to amend in accordance with the 13 September version. But the Commonwealth and State defendants have not considered that version. They, quite fairly, say that Ms McEwan has given them notice that she was seeking leave to amend in accordance with the 25/26 August versions.  

The Principles

  1. [23]
    Ms McEwan maintains this position:[15]

There is nothing in the rules that would require a plaintiff to seek leave to file an amended statement of claim when the trial has been delisted, and no new trial has been re-listed.

  1. [24]
    It is surprising that Ms McEwan asserts that, in a supervised case, she is entitled to amend as of right. That is all the more surprising where she seeks to amend yet again – and after trial dates were set and then vacated – because of late changes to the parties and pleading.[16]
  2. [25]
    In Ms McEwan’s second set of submissions, she relies on Monto Coal 2 Pty Ltd v Sanrus Pty Ltd[17] to support the proposition that “The plaintiff should be at liberty to amend the SOC when the trial has been delisted”.[18] Monto Coal was a proceeding that had been managed on both the Commercial List and Supervised Case List for around ten years. The respondent sought to amend their pleadings without the leave of the court on the basis that no trial had been listed.[19] The appellants[20] relied on a statement of Keane JA in The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd:[21]

I should also say that, although it is not necessary to come to a firm view for the purposes of this case, it seems to me that there is something to be said for the view that where a case has been placed on the Supervised Case List, then pursuant to r 367 of the UCPR and Practice Direction No 6 of 2000, cl 11, cl 12 and cl 19, a party’s entitlement to amend its pleadings is rendered subject to the court’s control so that the general provision in r 378 no longer applies. Clause 19 of the Practice Direction expressly requires that once a matter on the Supervised Case List has been allocated a trial date, the Supervised List Manager must be notified forthwith by a party becoming aware of ‘any proposal to amend a pleading’. That proposal can then be dealt with by the court. Until it is dealt with, it remains a proposal. Under r 367(1) of the UCPR, a court may make directions about the conduct of proceedings inconsistent with another provision of the UCPR including r 378. That this is so is hardly surprising. The case management regime established by Practice Direction No 6 of 2000 is elaborate and comprehensive. It plainly contemplates that a matter within the regime of the Supervised Case List is set down for trial, not in the general course contemplated by r 378 of the UCPR, but on the basis of the assurances to the parties that the matter is ready for trial and, in particular, that no further amendments to the pleadings will be sought.

  1. [26]
    In Monto Coal Flanagan J came to the following conclusion:[22]

The factual differences between this matter and The Beach Retreat are significant. Further, although it is not necessary to decide, any potential ousting of r 378 had not and would not come to fruition until trial dates had been allocated by the Supervising Case List judge.

  1. [27]
    However, His Honour made further observations:[23]

…the principles in Aon,[24] because of the operation of rule 5 of the UCPR, must be accepted to be of general application.  Those principles apply to amendments prior to the filing of a request for trial date or the allocation of trial dates by the supervising judge, whether or not rule 379 [the power to disallow an amendment] is invoked.

  1. [28]
    In my view there is a great deal to be said for the view expressed by Keane JA that, where a case is supervised, a party’s entitlement to amend its pleadings is rendered subject to the court’s control. The objective of supervision is to facilitate the just and expeditious resolution of the real issues. That objective would be undermined if despite the devotion of the court’s resources to the management of the case, the parties were free to amend at any time. That is especially because, in practice, supervised cases are often allocated trial dates without requiring a filed request for trial date. Thus, if rule 378 continued to apply, even to a supervised case, the parties would be free to amend up to and including during the course of a trial.[25]
  2. [29]
    The authority for determining whether Ms McEwan’s amendments to her pleading should be permitted is Aon Risk Services Australia Ltd v Australian National University.[26]  The Aon approach was summarised by Applegarth J in Hartnett v Hynes in 12 principles, which are quoted below:[27]
  1. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation.
  2. The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense.
  3. There is a distinction between amendments which are necessary for the just and expeditious resolution of “the real issues in civil proceedings” and amendments which raise new claims and new issues.
  4. The Court should not be seen to accede to applications made without adequate explanation or justification.
  5. The existence of an explanation for the amendment is relevant to the Court's discretion, and “[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment”.
  6. The objective of the Court is to do justice according to law, and, subject to the need to sanction a party for breach of its undertaking to the Court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment.
  7. Parties should have a proper opportunity to plead their case, but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs.
  8. The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend.
  9. Justice requires consideration of the prejudice caused to other parties, other litigants and the Court if the amendment is allowed. This includes the strain the litigation imposes on litigants and witnesses.
  10. The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources.
  11. Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.
  12. The applicant must satisfy the specific requirements of rules, such as UCPR 376(4) where it seeks to introduce a new cause of action after the expiry of a relevant limitation period. [emphasis added]

The Relevant Factors

  1. [30]
    Ms McEwan seeks leave to amend her statement of claim where:
    1. A trial has previously been set down;
    2. The statement of claim has been amended numerous times;
    3. The matter is managed on the Supervised Case List involving self-represented litigants;
    4. The majority of evidence is completed;
    5. In light of the above, the proceeding is in an advanced stage; and
    6. She has not explained the delay in seeking these amendments.
  2. [31]
    Ms McEwan contends that, because the trial is not presently set down for trial, the amendments ought to be allowed.[28] I do not accept that submission. The fact that there is no present trial date does not mean that the floodgates are open to the parties to re-formulate their cases. As Applegarth J explained in Hartnett v Hynes (see above) there are wider case management and public resources considerations as well as the potential prejudice to the defendants.

Prejudice/ Disruption

  1. [32]
    The potential for prejudice to the defendants was canvassed in a previous judgment in this proceeding:[29]

… 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.

  1. [33]
    The number of amendments, coupled with the haphazard identification of the amendments does require the defendants to cope with a continually moving target. It may not be specific prejudice, but it is likely that in each case the defendants have faced quite a task, including the investment of significant resources, into garnering a response and in adjusting their evidence to meet Ms McEwan’s new case. The fact that the defendants are likely to have the backing of the State and the Commonwealth is not an answer.
  2. [34]
    Importantly, as explained above, the progress of the case is essentially paralysed whilst the pleadings are in a state of flux.

Case Management

  1. [35]
    Case management considerations are at forefront of the considerations as to whether a party should be permitted to amend. In Aon, it was said:[30]

… the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected (186): “[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard …”

  1. [36]
    The factor of case management closely aligns with the philosophy of rule 5 of the Uniform Civil Procedure Rules 1999 – to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
  2. [37]
    The broader context shows just how much of a drain this proceeding has been on judicial resources, and the interests of other litigants waiting to be heard.
  3. [38]
    The importance of case management means that there is necessarily a limit to the opportunities available to a party to amend their pleadings. Ms McEwan has been afforded many opportunities to amend. To say the least, Ms McEwan is at that limit.
  4. [39]
    It remains to consider the nature of the proposed amendments to the statement of claim. That factor is important. If, for example, the proposed amendments are well-articulated, do not extend the factual inquiry, and are not likely to cause any prejudice, then that is a factor in favour of the grant of leave to amend. On the other hand, if the proposed amendments are poorly expressed, or extend the factual inquiry, or cause prejudice, then that will be a factor against the grant of leave.   

Nature of the Proposed Amendments

  1. [40]
    The elements of the tort of malicious prosecution, as applied to Ms McEwan’s proceeding, are that:[31]
    1. the defendants were ‘actively instrumental’ in instituting or continuing the proceedings against her;
    2. those proceedings were terminated in Ms McEwan’s favour;
    3. those proceedings were brought without reasonable and probable cause;
    4. in bringing the proceedings the defendants were motivated by malice; and
    5. damage was caused to Ms McEwan.
  2. [41]
    The State defendants say that, in respect of the case against them, they are not bothered with minor insertions of words here and there. The position of the Commonwealth defendants is that the application to amend should be refused in its entirety but they accept that it would be open to the court to allow a more limited set of amendments.
  3. [42]
    Both the Commonwealth and State defendants submit that defects in the amendments have the tendency to prejudice or delay the fair trial of the proceeding.[32] The Commonwealth defendants make the following submission:[33]

Many of the amendments are opposed because they lack clarity, are insufficiently particularised or are irrelevant to the claim made. In some cases, the Commonwealth Defendants cannot ascertain the purpose of the amendments and therefore cannot comment on whether further evidence or discovery would be needed in light of them. In this regard, the Commonwealth Defendants refer to the statements of Martin SJA in McEwan v Commissioner of Taxation [2022] QSC 81 at [11]:

Any pleading which is difficult to follow or objectively ambiguous, or which creates  difficulty for the opposite party insofar as the pleading contains inconsistencies, is liable to be struck out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding.

The Objections

  1. [43]
    The State defendants object to three categories of amendments:[34]
  1. a.
    Paragraphs that contain irrelevant matters, which will only cause to burden the trial judge with having to consider matters that are of no consequence (paragraphs 6.1, 13.1, 15.1, 17.1, 24.1, those paragraphs that reference back to paragraph 24.1)
  1. b.
    Paragraphs that are confusing and/or lacking particulars such that relevance cannot be ascertained or the allegation cannot be reasonably answered (paragraphs 15.1, 15.2, 16.1 and 21.1 (and those paragraphs that reference back to paragraphs 15.1, 15.2, 16.1 and 21.1), 25.1, 30.1(c), 34(a)(i), 35(b)(iii), 39(b)(iii), 43(d)(iv), 47(d)(iii), 51(d)(iii), 55(d)(iii), 59(d)(iv);
  1. c.
    Paragraphs where the plaintiff has deleted the heading “Particulars” so as to turn such matters into allegations (paragraphs 23, 27, 29, 30, 31, 32, 34, 36, 39, 40, 43, 47, 48, 51, 54, 55, 59, 63, 64)…[emphasis as per original]
  1. [44]
    The Commonwealth defendants have compiled a table in their submissions that sets out the amendments they object to and the grounds of their objections.[35] There is an overlap with the paragraphs objected to by the State defendants.
  2. [45]
    Ms McEwan has also compiled a table that responds to the defendants and provides her explanations for the amendments.[36] The table has three columns that appear to address the relevant paragraph of the pleading, the amendment, and an explanation for the amendment.[37] The majority of entries in the explanation column state that each amendment is an important or a significant material fact. Some have further explanations but are not entirely helpful. And, Ms McEwan’s table appears to be based on a previous proposed version of her pleading from July 2024. 

Objections of the State Defendants 

  1. [46]
    And so, the first objection of the State defendants is to paragraphs 6.1, 13.1, 24.1 and those paragraphs that cross-reference paragraph 24.1. It is submitted those paragraphs contain irrelevant matters and will burden the trial judge with issues of no consequence.
  2. [47]
    Paragraph 6.1 of the proposed pleading is a collection of allegations to the effect that Brisbane Angels[38] made demands of Ms McEwan for the return of the money and Brisbane Angels failed to return her intellectual property.[39] None of that appears to be capable of proving any of the five elements of malicious prosecution (see above), or the alternative case of misfeasance in public office.[40] Ms McEwan does not argue that the facts alleged here address any of the elements. Instead, she submits that the facts reveal a dispute between her and Brisbane Angels that was “nothing more than a civil dispute”.
  3. [48]
    There are two problems with that argument. The first is the underlying misconception that the co-existence of a civil dispute somehow excludes or demonstrates that a criminal prosecution had no prospects. The existence of a civil dispute does not banish associated criminal proceedings or even harm the prospects of associated criminal proceedings. The second problem is that Ms McEwan does not allege that the State defendants had any involvement or knowledge of that ‘civil dispute’.
  4. [49]
    Ms McEwan says that: “What it exposes [is] it was a civil dispute bereft of evidence to support fraud.” The facts alleged, even if true do not do that. Pointing to the existence of a civil dispute does not exclude the existence of a fraud. Indeed, this allegation has the potential to distract from the central issue – which is whether the criminal proceedings were brought without reasonable and probable cause. The focus of that inquiry is whether there was sufficient evidence to support the criminal case – not whether there was some other civil dispute between Ms McEwan and BA.
  5. [50]
    Ms McEwan says that a feature of the civil dispute was that there was no reasonable basis to infer criminality when the ‘so-called victim’ was holding a valuable asset, namely the intellectual property. Of course, the way this argument is put suggests that the process the court will embark on is an assessment of whether one could infer criminality or not. That will not be the inquiry. The relevant question is whether the evidence held by the prosecuting authority was sufficient to bring the prosecution. It is a weighing of the evidence. The question of what could be inferred about the supposed criminality is apt to distract.
  6. [51]
    In Ms McEwan’s existing pleading, paragraph 13 alleges that in May 2018, prior to BA’s fraud complaint, Mr Rains arranged a joint agency agreement between QPS and the ATO to investigate Ms McEwan. Ms McEwan’s proposed amendment seeks to add a new paragraph 13.1 alleging that the QPS/ATO agreement was:
    1. signed by Ms Smith on 21 June 2018;
    2. signed by her in the absence of any input from the Brisbane Angels parties or evidence of BA’s fraud complaint;
    3. signed by the Acting Assistant Commissioner on behalf of the QPS on 3 July 2018.
  7. [52]
    I am unable to understand how any of that assists Ms McEwan in proving the elements of the claims she brings. The minutiae of the execution of an arrangement between the two agencies as to an investigation can hardly demonstrate that the prosecution ultimately brought was without reasonable and probable cause or was brought maliciously. One would expect that there are any number of formal and informal arrangements between agencies like this for the purpose of investigations. Ms McEwan’s complaint, if there is one, comes later when there is a decision to prosecute and then a decision to continue to prosecute those charges. The proposed amendment appears to be entirely irrelevant, or at least its relevance is not explained.
  8. [53]
    Incidentally, the Commonwealth defendants submitted that they would not oppose a modified plea to the effect that the QPS/ATO agreement was signed by Ms Smith on 21 June 2018. However, I cannot see the relevance of that to Ms McEwan’s claims.
  9. [54]
    Paragraph 15.1 of Ms McEwan’s proposed new pleading[41] alleges that:

After receiving a phone call from Officer Holt on 31 August 2018, on 10 August 2018, Richard Hoult and John Mactaggart on behalf of the Brisbane Angels made a complaint to the QPS alleging:

  1. The Brisbane Angels were withdrawing their support and requested the balance funds be returned to them.
  2. The Brisbane Angels have not received any money back.
  3. the money had not been paid to the plaintiff.
  4. the ATO was the informant, the money had been used to pay a personal loan and not as agreed.

Particulars

  1. Qprime Report dated 10 August 2018 states the Brisbane Angels only wanted the balance of what was remaining of the investment returned.
  2. Officer Adrian Holt was the author of the Qprime Report dated 10 August 2018.
  3. The BA did not identify what figure from the $185,000 should have been returned and on what basis. 
  1. [55]
    There are a number of problems. One is that the pleading already alleges that Brisbane Angels made the fraud complaint. It is not clear what this adds to that existing plea. The second is that there is something peculiar about the dates in the first line. The phone call is said to have occurred before the complaint, but the dates are the other way around. The third is that it is difficult to understand the relevance of Brisbane Angels wanting the balance funds returned. That fact, if true, would not justify the money being used for personal rather than authorised purposes – if that is what is being suggested.
  2. [56]
    This paragraph of the pleading is confusing and ought not be allowed.
  3. [57]
    Paragraph 15.2 of Ms McEwan’s proposed pleading, which is subject to an objection by both groups of defendants, is as follows:

Pursuant to the QPS/ATO Agreement, in or about July 2018 the ATO provided documents to the QPS to compile the brief of evidence and lay the fraud charge against Ms McEwan.

  1. The documents provided by the ATO to the QPS prior to laying the charge against Ms McEwan were absent of reasonable and probable cause that Ms McEwan defrauded the Brisbane Angels of their investment funds of $185,000.
  2. The documents contained in the brief of evidence was absent of reasonable and probable cause to institute and maintain the Prosecution against Ms McEwan for fraud against the Brisbane Angels for $185,000 as pleaded in the QP9 charge particulars.

Particulars

  1. Email from Ms Williams to Mr Sibley dated 29 November 2019 attaching the Word document “ATO/QPS Log” listing the documents passed from the ATO to the QPS support the investigation and prosecution was absent of evidence to demonstrate Ms McEwan defrauded the Brisbane Angels of $185,000 spending it on a personal loan and other expenses.[42]
  1. [58]
    As can be seen, this part of the pleading lacks precision and has a repetitive element to it. That said, the points being made up to the heading ‘Particulars’ are tolerably clear. Ms McEwan alleges that, in July 2018, when ATO provided the documents to the QPS for the purpose of laying the fraud charge against Ms McEwan, there was insufficient evidence of reasonable and probable cause. In fact, that core allegation appears three times in various forms in proposed paragraph 15.2.
  2. [59]
    The problem is that Ms McEwan’s pleading does not identify who at the ATO provided the documents or what documents were provided.[43] It is true that there is at least an approximate date given – in about July 2018. But how do the defendants sensibly respond to the allegation without knowing what documents Ms McEwan is referring to?
  3. [60]
    Further, the paragraph after the heading ‘Particulars’ adds an unwelcome element of mystery. The core allegation - prior to the heading - is that in about July 2018 ATO provided certain unspecified documents to the QPS and those documents had insufficient evidence of reasonable and probable cause. But, then, the particulars refer to an emailed list of documents in November 2019 – some 16 months later. I am unsure, and the pleading does not make clear, how an emailed list in November 2019 can be particulars of an insufficient brief of documents in July 2018.
  4. [61]
    And the paragraph after the heading does not really make sense. Possibly it is a separate allegation that ‘the brief’ as at November 2019 was without reasonable and probable cause. But, that is not clear. If that is the allegation, then the ‘brief’ should be properly identified. The court and the defendants should not be in a position where they are required to speculate as to what Ms McEwan really alleges. Leave should not be given for that paragraph.    
  5. [62]
    Paragraph 16.1 of Ms McEwan’s proposed pleading seems to then repeat the same or similar allegations:

The brief of evidence as at 22 August 2018 did not contain the evidence to prove the charge elements and QP9 facts and particulars of the offence

  1. there was insufficient evidence to support the QP9 charge particulars that the plaintiff spent the investment funds $185,000 on a personal loan and other expenses.
  2. there was insufficient evidence to support the first element that the Brisbane Angels investment funds had been applied dishonestly, and the plaintiff “knew” this.
  3. there was insufficient evidence to prove the plaintiff caused a detriment to the Brisbane Angels and the plaintiff “knew” this.
  4. there was insufficient evidence to prove that the plaintiff should pay $185,000 restitution as particularised in the QP9.

Particulars

  1. On 25 November 2019, Mr Sibley wrote to Ms Williams, the Sixth defendant asking her to identify the exhibits that prove the offence and the statement of facts.
  2. Ms Williams ignored Mr Sibley and did not identify the exhibits to prove the offence or provide a statement of facts. 
  1. [63]
    This paragraph suffers from the same vice. It is important for the pleading to identify what comprised the ‘brief’ as at 22 August 2018. During case management, attempts have been made to try to have the parties agree on what formed the ‘brief’ as at particular dates. In the absence of such an agreement, there ought to be some precision in Ms McEwan’s allegation of the brief as at 22 August 2018. Otherwise, the defendants are unable to meaningfully respond.
  2. [64]
    In Ms McEwan’s proposed paragraph 17.1 she alleges that there was no legal basis for assigning any liability from Apagein onto Ms McEwan because, if money was owed, it was owed by Apagein and not Ms McEwan.[44] That is the first part of the proposed paragraph 17.1. The second part is that it is also alleged that the dispute with Brisbane Angels was civil in nature and that the Brisbane Angels were holding onto Apagein’s valuable asset.[45]
  3. [65]
    The first part of the proposed paragraph 17.1 is a little confused. The reference to ‘assigning’ probably merely means ‘attributing’. Ms McEwan’s apparent intention is to say that the proceedings were brought and continued without reasonable and probable cause, and maliciously, because the only entity that could ever have been required to return money to Brisbane Angels was Apagein. That may or may not be correct. But the allegation has some relevance and should be allowed. There is unlikely to be any prejudice to the defendants in dealing with Ms McEwan’s claim that there was an absence of reasonable and probable cause, and/or malice, because of the prosecution of her personally in circumstances where the debt, if there was one, was owed by Apagein.
  4. [66]
    However, the second part of paragraph 17.1 has no relevance. As explained, the co-existence of a civil dispute is not relevant. The same can be said with the holding of the asset.
  5. [67]
    Paragraph 21.1 of Ms McEwan’s proposed pleading is as follows:

On 9 April 2019, the QPS provided an Index to Brief.

  1. The QPS brief was absent of reasonable and probable cause to lay the charge and continue the prosecution as pleaded in paragraphs 15.2, 16 and 16.1 that Ms McEwan had defrauded the Brisbane Angels, spending their investment of $185,000 on a personal loan and other expenses, and not in accordance with the investor agreements:

Particulars

  1. The ATO and QPS have not disclosed a chain of custody for each exhibit to identify how the documents came into existence and on what date. 
  1. [68]
    There is perhaps a minor (but irritating) quibble with the opening words to paragraph 21.1. The use of the word “provided” suggests that QPS provided the index to somebody, but no person or entity is identified as the recipient of the index. Perhaps, though, the intention is to say that QPS ‘prepared’ the index.
  2. [69]
    In any event, it is clear that Ms McEwan alleges that, as at 9 April 2019, the ‘QPS brief’ contained insufficient evidence of reasonable and probable cause. Leave should be refused unless and until Ms McEwan identifies what she means by the ‘QPS brief’. Presumably it is a bundle of documents. If so, the documents comprising the brief ought to be properly identified.
  3. [70]
    The words after the heading ‘Particulars’ appear to be irrelevant and raise a false issue. Even if it were relevant, the allegation appears to be evidence.   
  4. [71]
    Paragraph 23 contains some cross-referencing that cannot be accepted given the rulings on those cross-referenced paragraphs (i.e. paragraphs 15.2, 21.1, 16 and 16.1). In any event, the cross-referencing looks to be pointless.
  5. [72]
    Paragraph 24 of Ms McEwan’s existing pleading sets out in some detail the submissions she and her lawyers made to the various agencies explaining that she had no case to answer. Those exculpatory submissions were made between August 2018 and August 2020. One can readily appreciate the significance of those allegations to her case that the prosecution was brought or continued without reasonable or probable cause.
  6. [73]
    However, Ms McEwan’s proposed new paragraph 24.1 is as follows:

On 18 December 2020 in response to an ATO FOI Request made by Stockingham ATO lawyer Mr Burton spoke with Mr Rains and Mr Challans who deny ever sharing any information or documents with the Brisbane Angels.

Particulars

The ATO FOI request was made seeking the evidence and documents to support the charge QP9 particulars that Ms McEwan spent the BA’s investment of $185,000 on a personal loan and other expenses. 

  1. [74]
    I am unable to understand, let alone see the significance of that paragraph. Possibly the intention is to allege that the denial was inaccurate. But that is not directly alleged. And, even if there was a denial of a sharing of information or documents, and that were false, the information or documents shared are not identified, and the relevance is not explained. And the timing is something of a mystery because the prosecution was already well underway.   
  2. [75]
    Ms McEwan submits that these are important material facts that disclose that the allegations in the charge particulars are false. But, if the idea is to assert that the QP9 particulars are false, that is not what the paragraph does. No QP9 particular is identified, let alone alleged to be false. And even if a QP9 detail could be demonstrated to be false or incorrect that does not demonstrate that the bringing or the proceedings was without reasonable and probable cause or were motivated by malice. It is a concern that Ms McEwan appears to intend to, in effect, identify mistakes or errors in the way the prosecution was run. The exercise is not a Royal Commission into the handling of the case against her. The correct inquiry is whether the proceedings were brought and continued without reasonable and probable cause and maliciously. Paragraph 24.1 is both vague and directed at irrelevant detail.
  3. [76]
    In paragraph 25 Ms McEwan pleads that the prosecution was terminated in her favour (by the entry of a nolle prosequi) on 12 May 2021. And then, Ms McEwan’s proposed new paragraph 25.1 is as follows:

On 17 January 2022 under oath in the Brisbane Magistrates court, Mr Rains gave evidence stating that he never gave any information or documents to the Brisbane Angels.

Particulars

  1. Mr Rains’ evidence was inconsistent with the email Mr Rains sent to the QPS on 18 July 2018; and
  2. inconsistent to the information that the ATO gave to the BA, as evidenced in the QPS statements of Mactaggart and Hoult in March 2019.
  1. [77]
    None of that appears to be relevant. In her evidence at trial Ms McEwan may wish to attack Mr Rains’ credit. But that should not be pleaded. In any event, it is to be noticed that Ms McEwan does not allege that Mr Rains’ evidence was false. All she says is that it is inconsistent with other evidence. This is a false issue that goes nowhere.
  2. [78]
    The proposed paragraph 30.1(c) is an allegation that Mr Rains, in about July 2018, provided QPS with documents that were insufficient to institute and continue the prosecution. There is little to object to here. The allegation covers previous ground – but extends the allegation to Mr Rains.
  3. [79]
    Ms McEwan’s proposed amended paragraphs 34(a)(i), 35(b)(iii), 39(b)(iii), 43(d)(iv), 47(d)(iii), 51(d)(iii), 55(d)(iii) and 59(d)(iv) are all relatively minor and should be permitted. The State defendants submit that those allegations are confusing and/or lacking particulars such that relevance cannot be ascertained, or the allegation cannot be reasonably answered. I am unable to see that that is so. Of course, if particular problems are identified the pleading or parts of it can be disallowed as part of case management.
  4. [80]
    The State defendants complain that in a number of paragraphs the plaintiff has deleted the heading “Particulars” so as to turn such matters into allegations. The particular paragraphs are paragraphs 23, 27, 29, 30, 31, 32, 34, 36, 39, 40, 43, 47, 48, 51, 54, 55, 59, 63 and 64.
  5. [81]
    Those paragraphs are not said to fail to inform the defendants of the case they have to meet. Even now, the objection is not to the substance of the paragraphs. Instead, the objection is to those paragraphs being permitted to emerge from behind the heading ‘Particulars’.
  6. [82]
    Of course, there is an ancient rule that a party need not plead to particulars, but that rule does not apply if the ‘particulars’ are, in substance, material facts.[46] The emergence of those paragraphs from the heading may mean that the defendants will be required to review their defences. But that is likely to be the case in any event. And, the court is likely to be assisted by a positive defence that pleads directly to Ms McEwan’s allegations. That is particularly so because the use of the heading ‘Particulars’ in Ms McEwan’s pleading is rather haphazard.

Additional Objections of the Commonwealth Defendants  

  1. [83]
    Some of the Commonwealth defendants’ objections to Ms McEwan’s proposed pleading cover the same ground as the State defendants. I will focus on the extent to which the Commonwealth defendants make separate objections.
  2. [84]
    The Commonwealth defendants object to paragraph 1(b)(iii) of Ms McEwan’s proposed pleading which alleges that the Commissioner of Taxation was responsible for the actions of Mr Rains and Ms Smith as ATO officers employed to assist the Commissioner, to the extent they were acting under “that delegation”.[47] 
  3. [85]
    As the Commonwealth defendants point out, I have previously disallowed a similar proposed amendment.[48] The pleading does not identify any of the details of the delegation.  And, it is difficult to see how it is relevant.
  4. [86]
    Ms McEwan submits that:

Ms Smith authorised and signed the ATO/QPS Joint Agency Agreement, Mr Rains as the author of the agreement, would have sought approval from Ms Smith as such her introduction to this pleading is important.   

  1. [87]
    I do not understand any of that, or how it relates to the real issues in the proceeding. Even the existence of an agreement between the agencies appears to have no relevance. As I understand it, neither party contends that the criminal proceedings were brought against Ms McEwan without proper authority, and nobody contends that they were withdrawn without proper authority. The question that Ms McEwan wishes to agitate is whether the criminal proceeding was brought without reasonable and proper cause, and with malice.
  2. [88]
    Once again, Ms McEwan seeks to add paragraph 1(ca) asserting that Ms Smith was an employee of the ATO, held a particular position and acted under a delegation from the Commissioner. The addition of Ms Smith to the text of the pleading adds nothing. She is not sought to be added as a party and no relief is sought against her. Her alleged involvement in signing the QPS/ATO Agreement does not appear to matter at all. As I have explained above in relation to paragraph 13.1, the minutiae of the execution of an arrangement between the two agencies as to an investigation can hardly demonstrate that the prosecution ultimately brought was without reasonable and probable cause or was brought maliciously.
  3. [89]
    Ms McEwan’s proposed amendment to paragraph 8 is in a similar category. Paragraph 8, with the proposed addition words underlined is as follows:

At all times material to the proceedings, Mr Rains was the investigator in respect of an investigation by the ATO into a research and development (R&D) refundable tax offset applied for by Venika Biotech (Venika Biotech Investigation) authorised by R&D Director Brett Challans in January 2018.

  1. [90]
    The paragraph is plainly background and hardly matters. Ms McEwan says the opposite. She says the fact that Mr Brett Challans authorised Anthony Rains is an important material fact. She says that is because Rains was authorised by Challans immediately following the compulsory interview.
  2. [91]
    In paragraph 10 of her pleading Ms McEwan sets out a course of conduct by Mr Rains. She alleges that he contacted Brisbane Angels, and gave them information, and organised for Mr Monaghan and Mr MacTaggart to give statements, and took various information from them. Now, by paragraph 10(c)(vi), Ms McEwan proposes to add a further detail, that is, that the information acquired by Mr Rains included:

all emails and documents relating to the settlement negotiations and demand for return of the confidential information disclosed to the ATO by the BA on or about 30 April 2018,…

  1. [92]
    The Commonwealth defendants oppose the addition of that paragraph on the grounds of relevance. The Commonwealth defendants say this paragraph is in the same category as proposed paragraph 6.1 – the paragraph that seeks to add in details of the commercial or ‘civil’ dispute as between Brisbane Angels and Ms McEwan.
  2. [93]
    I do not think this is in the same category. The evident objective of paragraph 10 is not to propound the dispute but to explain Mr Rains’ involvement in order to demonstrate his involvement as a ‘prosecutor’ in the broad sense discussed above.
  3. [94]
    The proposed new paragraph merely extends, in a modest way, the scope of the information said to have been gathered by Mr Rains. However, the substantive problem with paragraph 10(c)(vi) is that it is too vague. The description “all emails and documents relating to the settlement negotiations and demand for return of the confidential information disclosed to the ATO” is too imprecise. In the context of this case permitting that broad, non-specific description of documents is simply likely to lead to disputes about what documents fall into this category. Of course, the problem will be keenly felt by the defendants when they come to respond (either in a pleading or in evidence). The question is: what documents fall into this category? This addition should not be permitted.
  4. [95]
    Ms McEwan proposes to alter paragraph 27(a) in this way:

The Commissioner instituted and continued the Prosecution maliciously.

  1. The investigation and Prosecution were instituted by virtue of the QPS/ATO Agreement, instrumental to which were the actions of Mr Rains and Ms Smith as pleaded herein…
  1. [96]
    The words sought to be added are underlined.
  2. [97]
    Obviously enough an investigation precedes a prosecution. The courts only rarely interfere with investigations. And so, the point of a claim for malicious prosecution is not that there was an investigation. The investigation may go nowhere. The point of a malicious prosecution claim is that a decision is made to prosecute when there was no reasonable or probable cause to do so, and the prosecution is motivated by malice.
  3. [98]
    In that context, it makes no sense for Ms McEwan to seek to add the words “investigation and”. Those words cannot be a material fact. Of course, at trial Ms McEwan may, in her evidence, point to a course of conduct on the part of the Commissioner. But that is her evidence of either the lack of reasonable or probable cause or the presence of malice. It is not a material fact that is to be pleaded.
  4. [99]
    The addition of Ms Smith to the paragraph also adds nothing – for the reasons stated above. Ms Smith is not a party and her only alleged role is to execute and agreement. A ‘prosecutor’ – even in the broad sense discussed above – is not a person who signs an agreement. That does not qualify Ms Smith as the person in fact instrumental as the real prosecutor. At best, the allegation appears to be that she facilitated an investigation.
  5. [100]
    Ms McEwan proposes some changes to paragraph 27(b). The Commonwealth defendants do not object to a change to the date but object to Ms McEwan changing changing the words “the BA investment on how the investment was spent” to “the BA investment was spent by Ms McEwan on a personal loan and other expenses”. The objection is merely that it is not clear why the change is necessary. The changes are relatively inconsequential and should be allowed.
  6. [101]
    The Commonwealth defendants object to Ms McEwan’s proposed amendments to paragraphs 30 and 32. Those amendments appear to be relatively innocuous. In both paragraphs the paragraphs begin with these words: “Mr Rains on behalf of the Commissioner instituted and continued the Prosecution maliciously…” The words that are underlined are the proposed new words. Ms McEwan says that this is an obvious and relevant amendment and that there is no prejudice to the Commonwealth defendants.
  7. [102]
    The Commonwealth defendants submit that:

The plaintiff does not, and has never pleaded, a claim of vicarious liability against the Commissioner. The pleading is unparticularised and irrelevant to the claim as made. The pleading appears to be an amendment to bring a vicarious liability case by stealth, which would be a fundamental change to the claim which ought not be allowed.

  1. [103]
    Ms McEwan has sued the Commissioner of Taxation, Mr Rains, an ATO employee, and Ms McNaughton, the Commonwealth Director of Public Prosecutions, as well as Mr Micairan, Ms Lukin, Ms Williams and Ms Devereaux, employees of the CDPP.
  2. [104]
    In an action for malicious prosecution the defendant must usually be the prosecutor or prosecuting authority. However, a plaintiff such as Ms McEwan who claims malicious prosecution is also entitled to join as a defendant a person other than the prosecutor or prosecuting authority if that person has influenced the prosecuting authority to institute proceedings against her by false testimony, dishonest prejudice or counselling.[49] The law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor; it enables the person innocently accused to treat his virtual accuser as party to the criminal charge.[50]
  3. [105]
    Here, Ms McEwan claims that the ‘prosecutor’ in that wide sense was:
    1. the Commissioner of Taxation;
    2. the Commissioner’s employee, Mr Rains;
    3. the Commonwealth DPP; and
    4. the CDPP’s employees, Mr Micairan, Ms Lukin, Ms Williams and Ms Devereaux.
  4. [106]
    Those are all direct claims which will involve Ms McEwan proving each element of the causes of action against each defendant. If Ms McEwan was intending to allege that the acts of one or more of those individuals were both committed in the course of their employment and exposed their employer to vicarious liability, then that needs to be expressly pleaded.
  5. [107]
    In one sense the words which Ms McEwan seeks to add do not go very far. They merely allege that Mr Rains was acting on behalf of the Commissioner. And, of course, the Commissioner is a party in any event. There are direct claims that the Commissioner commenced and continued the proceedings without reasonable and proper cause and maliciously.
  6. [108]
    However, if it was contended that the Commissioner has vicarious liability for the conduct of Mr Rains then that would need to be explicit. It follows that the addition of the proposed words in paragraph are unnecessary.
  7. [109]
    In paragraph 30.1(f) Ms McEwan proposes to plead that:

(Mr Rains) failed to disclose evidence that was in the possession or control of the ATO, namely the documents given by Mr Rains to the BA Parties that supported the ‘Facts of Charge’ stated in the QP9, despite repeated requests by Ms McEwan to disclose that evidence.

  1. [110]
    These proposed amendments are confusing. There is no precision as to what it was that Mr Rains failed to disclose. The evidence not disclosed is, it seems, documents, but they are not identified. Nor are the requests identified or the person or entity to whom they ought to have been disclosed, or when.
  2. [111]
    In the proposed paragraph 31(c)(i) Ms McEwan pleads that, at all material times throughout the prosecution, Mr Rains:

held knowledge and evidence of exculpatory facts from which it can be inferred that he either:

  1. ignored that evidence; or
  2. did not believe Ms McEwan was probably guilty of the QPS Charge as pleaded in paragraphs 15.2, 21.1 and 16.1 herein;
  3. withheld that evidence from the plaintiff and the court. [changes underlined]            
  1. [112]
    The Commonwealth defendants object to the addition of paragraph (C) because of the lack of particularity. The withholding of evidence is not properly identified in the sense that there is no detail of what precisely was withheld, and from which court, and when.
  2. [113]
    There is another problem. Paragraph 31(c)(i) is designed to portray Mr Rains as holding knowledge of some exculpatory facts. From that fact Ms McEwan asks the court to infer that he ignored that evidence and that he did not believe Ms McEwan was guilty. Now, with the additional proposed paragraph (C), Ms McEwan asks the court to infer, from Mr Rains’ knowledge of the exculpatory facts, that Mr Rains withheld that evidence. In short, the claim is: ‘you knew something, therefore you withheld it’. That does not make sense. Possibly it is incomplete.
  3. [114]
    For both reasons leave to amend this paragraph should be refused.
  4. [115]
    In paragraph 34(a)(v) and (vi) of the proposed pleading Ms McEwan proposes to add a plea to the effect that the Commonwealth Director authorised the indictment to be filed against Ms McEwan on 5 June 2020 and had carriage of the prosecution until it was terminated on 12 May 2021.
  5. [116]
    The Commonwealth defendants object because of an absence of particulars and because the case against the Commonwealth Director is changed and may require further evidence. I cannot see that there is an absence of particulars. And, given that it is already alleged that the carriage of the prosecution was restored to the Commonwealth Director on 13 December 2019, it is difficult to see why an allegation that, after that date, the Commonwealth Director authorised the indictment, and then had carriage of the prosecution, causes any particular prejudice to the Commonwealth defendants.
  6. [117]
    This amendment should be permitted.
  7. [118]
    Proposed paragraphs 35(b)(iii),[51] 39(b)(iii), 43(d)(iii), 47(d)(iii), 51(d)(iii), 55(d)(iii), 59(d)(iv) and 64(c)(vi) all say that the particular party was in possession of “evidence by way of the Apagein and other bank statements”. That expression is too vague. The precise documents should be identified. Leave will not be given.    
  8. [119]
    In paragraph 59 of the pleading Ms McEwan alleges that Ms McGregor, the ninth defendant, continued the prosecution maliciously. As support for that allegation, it is alleged that Ms McGregor was in possession of various exculpatory documents. Ms McEwan seeks to add to the list of documents in Ms McGregor’s possession the ‘Apagein Documents’ that demonstrated a clear commercial dispute and the Brisbane Angels refusal to return the confidential information.
  9. [120]
    As explained, those matters are not relevant. There is no magic in characterising the dispute as a ‘civil’ or ‘commercial’ dispute let alone that the dispute extended to possession of the confidential information. None of these matters are properly material facts.
  10. [121]
    In paragraphs 27, 28, 30, 31, 34, 35, 39, 43, 47, 51, 54, 55, 59, 63 and 64 Ms McEwan seeks to add the word maliciously to the introduction to the paragraph. The addition of the word is repetitive and pointless. As against the Commissioner, for example, the word is used in paragraphs 27, 28 and 29 is nearly identical ways.
  11. [122]
    Malice is an important part of a plea of malicious prosecution. But it is inappropriate to use the expression repeatedly and wherever it can be fitted into the text.
  12. [123]
    In paragraph 115(d) Ms McEwan seeks to add a claim for relief as follows: “legal costs defending the charge”. The Commonwealth points out that by her January 2024 amendments Ms McEwan abandoned a similar claim and she does not explain why she seeks to re-enliven that claim. They also submit that there is not evidence of those legal expenses. I accept those submissions.
  13. [124]
    The same applies to a special damages claim added in paragraph 115(f)(ii).
  14. [125]
    The ‘further exemplary damages’ claim in paragraph 116(3) can be permitted on the basis that it does not add to the damages claims made in paragraph 115. 
  15. [126]
    Many of the changes Ms McEwan seeks to make involve cross-referencing. I am unable to see the point of any of the cross-references.  

The 13 September Amendments

  1. [127]
    As explained above, Ms McEwan has circulated the 13 September version of her pleading. These amendments were unprompted and are largely in an unidentified format. The defendants have not made submissions to them. The defendants are entitled to be heard on those further amendments. Leave will be refused.
  2. [128]
    If Ms McEwan proposes to proceed with yet another collection of proposed amendments, she will be required to bring an application and will be required to identify the proposed amendments. The defendants can then be heard on that application.

Should Leave be Granted?

  1. [129]
    I conclude that leave should be granted for Ms McEwan to rely on her proposed statements of claim to the extent outlined above, and where the amendments are not opposed by the defendants.

Further Evidence-in-Chief?

  1. [130]
    Ms McEwan seeks to add to her evidence-in-chief. The process here has been torturous in the same way as the pleading journey. Ms McEwan filed and served her affidavit by way of evidence-in-chief on 27 November 2023. That was done in accordance with the court’s case management directions and was designed to lead to a trial. That trial was set down for July 2024 but was ultimately abandoned in June 2024.
  2. [131]
    Since filing and serving her evidence-in-chief in November 2023, Ms McEwan has unsuccessfully sought to rely on some 25 further affidavits by way of evidence-in-chief, and some further consolidated affidavits.[52]
  3. [132]
    Ms McEwan now seeks to rely on an affidavit dated 23 August 2024 and served on 25 August 2024.[53]

What are the Problems with the Affidavit of 23 August 2024?

  1. [133]
    Before considering the affidavit of 23 August 2024, I should note that evidence-in-chief by affidavit can be important in complex cases like this involving a self-represented litigant. That is because it enables the self-represented litigant to properly put their evidence to the tribunal and because it enables the represented party to see – in black and white – the detail of the self-represented litigant's case. And vice versa – the self-represented litigant obtains, in advance of the trial, a full understanding of the case they must meet.
  2. [134]
    In a previous judgment in this proceeding, although I refused Ms McEwan leave to rely on a further 25 affidavits, I left open the prospect of Ms McEwan relying on further evidence-in-chief:[54]

… If there is any specific evidence, which Ms McEwan has omitted from her Principal Affidavit, Ms McEwan can seek the leave of the court. However, I would expect that material to be confined and demonstrated to be relevant to particular, properly identified, pleaded issues. [sections omitted and emphasised]

  1. [135]
    That invitation was enthusiastically accepted, but perhaps not completely understood by Ms McEwan. She sought leave to rely on, as her evidence-in-chief a further affidavit totalling 584 paragraphs over 81 pages of text. I refused leave again.[55]
  2. [136]
    The substance of the affidavit of 23 August 2024 has not significantly changed. The text spans 511 paragraphs over 66 pages. Including exhibits, the affidavit totals just under 1000 pages. As the State submissions note, the additional evidence included in the affidavit comprise matters that are largely irrelevant:[56]

…many of the matters referred to are irrelevant. The plaintiff alleges malicious prosecution and misfeasance in public office. Thus, the focus of this case at trial will be on two things. Namely, what information the defendants had at various times, and what they did (or did not do). Yet, the Latest Affidavit strays into matters like Ms McEwan’s actual interactions with the Brisbane Angels and her (alleged) actual spending of the investment funds…

  1. [137]
    The 23 August affidavit:
    1. contains matters that are largely irrelevant, such as the detail of her relations with the Brisbane Angels;
    2. deals with matters that are outside Ms McEwan’s involvement and are not properly matters that can be the subject of her evidence;
    3. includes what are, in reality, submissions.
  2. [138]
    As both defendants note, the affidavit also suffers the same vices as the previous affidavits filed by Ms McEwan. The only difference is the stage of the proceeding. At this stage of the proceeding, Ms McEwan still seeks to essentially reconstruct, from scratch, her evidence-in-chief in its entirety, while also bringing in new matters that could be potential hotspots of dispute.
  3. [139]
    The likely prejudice to the defendants is obvious. They are being forced to deal with, and respond to, two different cases. They are also being required to deal with irrelevant material. 
  4. [140]
    For those reasons, I refuse leave for Ms McEwan to rely on the affidavit of 23 August 2024.

Footnotes

[1]  As with other cases in this series of cases, the abbreviation ‘Commonwealth defendants’ refers to the first to seventh defendants and the ‘State defendants’ refers to the eighth, ninth and eleventh defendants.

[2]  I noted this in McEwan v The Commissioner of Taxation [2024] QSC 113, [56].

[3]  See State defendants’ submissions (12 July 2024); State defendants’ submissions (18 September 2024). At [9] of the 18 September 2024 submissions, the State defendants state: “The Court ought not to bother with those submissions and instead should only consider these submissions with respect to the Leave Application”. See also Commonwealth defendants’ submissions (12 July 2024) and Commonwealth defendants’ submissions (16 September 2024). I will refer to the most recent submissions.

[4]  State defendants’ submissions, [16]. See also Commonwealth defendants’ submissions, [15], table A col 3 (which is an annexure).

[5]  Transcript of the review on 25 September 2024, 2.

[6]  Ibid 5-6.

[7]  And after the latest discovery, the proposed statement of claim sent by email on 25 August 2024.

[8]  Affidavit of Julie McEwan of 13 September 2024, [5].

[9]   The relevant cross-referenced paragraphs are paragraphs 29(c), 32(d), 36(c)(i), 40(d), 48(d)(i) and 52(e)(i).

[10]  As to one of the changes, the change to paragraph 10, see the discussion below.

[11]  This alternative case is based on the same allegation that the defendants prosecuted Ms McEwan without reasonable or probable cause.

[12]  See, for example, Glinski v McIver [1962] AC 726 where it was alleged that a charge of conspiracy had been brought to punish the plaintiff for having given evidence against the police in a previous matter. This point is discussed in Halsbury’s Laws of Australia, 415 Tort ‘6 Protection of the Administration of Justice’ [415-1790].

[13] Halsbury’s Laws of Australia (supra) [415-1695].

[14]  See, for example, Lye v New South Wales [2005] NSWCA 282, [59].

[15]  Ms McEwan’s reply submissions, [11].

[16]  The problem was that Ms McEwan re-introduced her claim against Mr Rains.

[17]  [2014] QCA 267.

[18]  Ms McEwan’s reply submissions (24 September 2024), [2](a).

[19]  This was pursuant to Uniform Civil Procedure Rules 1999, r 378.

[20]  The appellants were the applicants in the original proceedings.

[21]  [2008] QCA 224, [38], as quoted in Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267.

[22]  [2014] QCA 267, [67]. His Honour considered the facts of each case in more detail at [66].

[23]  Ibid, [73]. His Honour then quoted Hartnett v Hynes [2009] QSC 225, [12], [15], [19], [22].

[24]  This is a reference to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 discussed below.

[25]  Any amendment, of course, is subject to disallowance pursuant to UCPR r 379.

[26]  (2009) 239 CLR 175 (‘Aon’).

[27]  [2009] QSC 225, [27]. See also Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267, [74].

[28]  See Ms McEwan’s submissions in reply.

[29] McEwan v The Commissioner of Taxation [2024] QSC 113, [56]. See State defendants’ submissions, [16].

[30] Aon, [93].

[31]  See Halsbury’s Laws of Australia (online) 415 Tort ‘6 Protection of the Administration of Justice’ [415-1695] (‘Halsbury’s Laws of Australia’).

[32]  State defendants’ submissions, [22]; Commonwealth defendants’ submissions, [3].

[33]  Commonwealth defendants’ submissions, [20].

[34]  State defendants’ submissions, [18].

[35]  Commonwealth defendants’ submissions, annexure A.

[36]  Ms McEwan’s submissions, annexure A.

[37]  I say appear because the table does not have headings and starts as a timeline.

[38]  The Brisbane Angels are sometimes referred to as BA by the parties.

[39]  Both the State and Commonwealth defendants object to the addition of this paragraph.

[40]  This alternative case is based on the same idea – that the case was prosecuted without good cause.

[41]  Both the Commonwealth and State defendants object to this paragraph.

[42]  This paragraph is actually paragraph (d) in Ms McEwan’s version.

[43]  This is one of the objections of the Commonwealth defendants.

[44]  The Commonwealth defendants also object to paragraph 17.1.

[45]  Presumably this is a reference to the intellectual property.

[46]  See the discussion in Jack Isaac Hai Jacob and Iain Goldrein, Pleadings: Principles and Practice (Sweet & Maxwell, 1990) 186-7.

[47]  The reference to “that delegation” is a throw-back to a previous proposed version of the pleading. It makes no sense in the present pleading where no delegation is pleaded.

[48] McEwan v Commissioner of Taxation [2024] QSC 113, [47].

[49]  LexisNexis, Court Forms, Precedents & Pleadings [71,041].

[50] Davis v Gell (1924) 35 CLR 275, 282; see also Seabrook v Asher [2006] QCA 238, [12].

[51]  This is the second (b) in that paragraph.

[52]  See McEwan v Commissioner of Taxation [2024] QSC 70 and McEwan v Commissioner of Taxation [2024] QSC 113.

[53]  This is pursuant to orders of 28 August 2024.

[54] McEwan v Commissioner of Taxation [2024] QSC 70, [14].

[55] McEwan v Commissioner of Taxation [2024] QSC 113, [64].

[56]  State defendants’ submissions, [28].

Close

Editorial Notes

  • Published Case Name:

    McEwan v The Commissioner of Taxation

  • Shortened Case Name:

    McEwan v Commissioner of Taxation

  • MNC:

    [2024] QSC 252

  • Court:

    QSC

  • Judge(s):

    Freeburn J

  • Date:

    25 Oct 2024

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QSC 25225 Oct 2024Proceedings for malicious prosecution and misfeasance in public office; orders made concerning practice and procedure: Freeburn J.
Notice of Appeal FiledFile Number: CA 15934/2421 Nov 2024Notice of appeal filed.
Appeal Determined (QCA)[2025] QCA 4811 Apr 2025Appeal dismissed: Gotterson AJA (Bond and Boddice JJA agreeing).

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
3 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Cite 3 - (2009) 239 CLR 175
Aon Risk Services Australia Limited v Australian National University (2009) HCA 27
1 citation
Jump To
Cite 1 - (2009) HCA 27
Davis v Gell (1924) 35 CLR 275
1 citation
Jump To
Cite 1 - (1924) 35 CLR 275
Glinski v McIver (1962) AC 726
1 citation
Jump To
Cite 1 - (1962) AC 726
Hartnett v Hynes [2009] QSC 225
3 citations
Jump To
Cite 1 - [2009] QSC 225
Cite 2 - [2009] QSC 225
Cite 3 - [2009] QSC 225
Lye v New South Wales [2005] NSWCA 282
1 citation
Jump To
Cite 1 - [2005] NSWCA 282
McEwan v Commissioner of Taxation [2022] QSC 81
3 citations
Jump To
Cite 1 - [2022] QSC 81
Cite 2 - [2022] QSC 81
Cite 3 - [2022] QSC 81
McEwan v Commissioner of Taxation [2022] QSC 279
2 citations
Jump To
Cite 1 - [2022] QSC 279
Cite 2 - [2022] QSC 279
McEwan v Commissioner of Taxation [2024] QSC 26
2 citations
Jump To
Cite 1 - [2024] QSC 26
Cite 2 - [2024] QSC 26
McEwan v Commissioner of Taxation [2024] QSC 70
4 citations
Jump To
Cite 1 - [2024] QSC 70
Cite 2 - [2024] QSC 70
Cite 3 - [2024] QSC 70
Cite 4 - [2024] QSC 70
McEwan v Commissioner of Taxation [2024] QSC 113
7 citations
Jump To
Cite 1 - [2024] QSC 113
Cite 2 - [2024] QSC 113
Cite 3 - [2024] QSC 113
Cite 4 - [2024] QSC 113
Cite 5 - [2024] QSC 113
Cite 6 - [2024] QSC 113
Cite 7 - [2024] QSC 113
McEwan v Commissioner of Taxation [No 2] [2022] QSC 97
2 citations
Jump To
Cite 1 - [2022] QSC 97
Cite 2 - [2022] QSC 97
Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267
5 citations
Jump To
Cite 1 - [2014] QCA 267
Cite 2 - [2014] QCA 267
Cite 3 - [2014] QCA 267
Cite 4 - [2014] QCA 267
Cite 5 - [2014] QCA 267
Seabrook v Asher [2006] QCA 238
1 citation
Jump To
Cite 1 - [2006] QCA 238
The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2008] QCA 224
2 citations
Jump To
Cite 1 - [2008] QCA 224
Cite 2 - [2008] QCA 224

Cases Citing

Case NameFull CitationFrequency
McEwan v Commissioner of Taxation [2024] QSC 2862 citations
McEwan v Commissioner of Taxation [2025] QCA 485 citations
1

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