McEwan v Commissioner of Taxation
[2024] QSC 70
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- Unreported Judgment
- McEwan v Commissioner of Taxation[2024] QSC 70
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McEwan v Commissioner of Taxation[2024] QSC 70
McEwan v Commissioner of Taxation[2024] QSC 70
SUPREME COURT OF QUEENSLAND
CITATION: | McEwan v Commissioner of Taxation [2024] QSC 70 | |
PARTIES: | JULIE McEWAN (plaintiff) v COMMISSIONER OF TAXATION & ORS (first defendant) | |
FILE NO/S: | BS 971/2022 | |
DIVISION: | Trial | |
PROCEEDING: | Claim | |
ORIGINATING COURT: | Supreme Court | |
DELIVERED ON: | 1 May 2024 | |
DELIVERED AT: | Brisbane | |
HEARING DATE: | 22 April 2024 | |
JUDGE: | Freeburn J | |
ORDER: |
| |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – where the plaintiff seeks leave to rely on filed material at trial – whether leave should be granted – where the plaintiff also seeks trial directions – where there is a likelihood that the parties will not agree on directions – whether an order should be made on trial directions | |
COUNSEL: | The plaintiff was self-represented M R Wilkinson and O Cook 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]Pursuant to a direction on 29 November 2023, Ms McEwan filed and served an affidavit by herself comprising her lay evidence by way of evidence-in-chief. The affidavit is dated 27 November 2023. For present purposes I will refer to that affidavit as the Principal Affidavit.
- [2]Ms McEwan now seeks leave to rely on further material at trial. At a Self-Represented Litigants List review on 22 April 2024 I made various directions, including that the proceeding be set down for trial for two weeks commencing on 8 July 2024. I also reserved two questions, namely:
- The question of the plaintiff’s material; and
- The issue of trial directions (which, in part at least, depends upon issue (a)).
25 Further Affidavits
- [3]At the review on 20 March 2024 Ms McEwan advised that she wished to rely on further affidavits. At that review directions were made designed to have Ms McEwan identify, by way of list, each additional affidavit she proposed to rely on at trial. The directions provided for the Commonwealth and State defendants to state if they objected to those affidavits and, if so, to identify the basis for those objections.
- [4]Ms McEwan has now identified 25 further affidavits that she wishes to rely on, together with her submissions filed on 21 March 2022. And so, in total, Ms McEwan seeks to rely on 26 affidavits at the trial, including her Principal Affidavit. She also seeks to rely on the submissions of 21 March 2022.
- [5]Ms McEwan asserts there is no prejudice to the defendants. She says the affidavits:
- are in evidence in these proceedings and therefore there is no prejudice;
- have never been responded to;
- there is no apparent obstruction to the defendants responding to the affidavits.
- [6]Of course, the affidavits are not “in evidence”. They have been filed, and are on the court file, but they are not in evidence. What has been considered for the purposes of interlocutory skirmishes between the parties may be irrelevant, and will often be irrelevant, to the issues to be fought at trial. What is admitted into evidence at the trial will be a matter for the trial judge, who will, no doubt, consider the issues defined by the pleadings.
- [7]Prejudice, or the lack of it, is certainly one factor relevant to the discretion to permit Ms McEwan to rely on the 25 further affidavits.
- [8]Certainly also, there is the fact that Ms McEwan has, through inadvertence, failed to advise of her intention to rely on the 25 further affidavits. That is not a weighty factor against permitting Ms McEwan to rely on the further 25 affidavits. Ms McEwan is self-represented, and I would be reluctant to, in effect, exclude evidence merely because of a mistake made by Ms McEwan in her conduct of her case.
- [9]There are three overlapping and significant concerns. The first is that from a case management point of view it is impractical to require a trial judge to read 26 affidavits totalling nearly 1700 pages. That is especially so given that not much of the contents of those affidavits appear to be, or have been shown to be, relevant.
- [10]The second problem is that the affidavits comprise Ms McEwan’s stance on various interlocutory skirmishes. Ms McEwan’s affidavit of 31 August 2022, for example, sets out Uniform Civil Procedure Rules 1999 rule 444 letters sent by Ms McEwan. None of that appears to be relevant to the issues that are pleaded.
- [11]The third problem is that many of the 25 further affidavits contain hearsay or other material to which objection is taken.
- [12]The fourth problem, which overlaps with the third problem, is that permitting Ms McEwan to rely on those 25 further affidavits as her evidence-in-chief is likely to succeed only in creating further battlegrounds for disputation. Ms McEwan points out that the defendants have not responded to many of her affidavits. That may have been a deliberate choice because the interlocutory battles were mostly confined to timetabling. The defendants may legitimately take a different view if Ms McEwan relies on that interlocutory material for the purposes of trial. They may wish to respond by filing and serving further material themselves or they may wish to object to the admissibility of the material. Hearsay, for example, may well be admissible on an interlocutory application, but not admissible at trial.
- [13]In short, permitting Ms McEwan to rely on the 25 further affidavits is not demonstrated to have any relevance to the issues for the trial judge and appears likely to lead to up to 25 further battlegrounds.
- [14]In the circumstances, it is appropriate to refuse leave for Ms McEwan to rely on those 25 further affidavits as her evidence-in-chief at trial. 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.
- [15]I should mention that in some cases Ms McEwan seeks to rely on affidavit material filed in other proceedings. The same problems arise. The material needs to be demonstrated to be relevant to the issues pleaded here, and the defendants may need to respond or they may wish to object.
Submissions filed 21 March 2022
- [16]Ms McEwan will not be granted leave to rely on her submissions filed on 21 March 2022. That document does not comprise evidence. There is no basis for those submissions to become a part of Ms McEwan’s evidence-in-chief. If the submissions are relevant there is no reason why Ms McEwan cannot make the submission at trial.
Trial Directions
- [17]Ms McEwan seeks trial directions. Essentially, she seeks trial directions directed to the parties preparing and agreeing to a trial bundle, a list of issues and a trial plan.
- [18]In conventional litigation those steps may be of assistance. My concern, however, is that those steps will merely become three further battlegrounds. The numerous interlocutory steps in this proceeding have been hard-fought. Without wishing to be too pessimistic, the likelihood is that the parties will be unable to agree on a trial bundle, or on a list of issues or on a trial plan.
- [19]Nevertheless, the parties are free to propose to each other their proposed trial bundle, list of issues and trial plan. If there is, at the next review, even a modest level of agreement about those three aspects then it may be worth considering embarking on the exercise. However, in the absence of directions, the documents relied on by Ms McEwan will be clear from her Principal Affidavit, the documents relied on by the defendants will be clear from their affidavits, the issues will be able to be discerned from the pleadings, and the parties can advise each other of:
- the expected duration of their openings;
- the witnesses they propose to cross-examine and the expected duration of each cross examination;
- the expected duration of their addresses.