JULIE McEwan v Janine Clark - [2023] QCA 147

[2023] QCA 147

COURT OF APPEAL

BOND JA

Appeal No 5562 of 2023
SC No 15660 of 2022

JULIE McEWAN Appellant

JANINE CLARK First Respondent

AUSTRALIAN TAXATION OFFICE Second Respondent

ANTHONY RAINS Third Respondent

COMMONWEALTH DIRECTOR OF Fourth Respondent
PUBLIC PROSECUTIONS

ROBERTA DEVEREAUX Fifth Respondent

BRISBANE

MONDAY, 24 JULY 2023

JUDGMENT

BOND JA: A large part of the factual background of the present application is set out in the decisions in:

(a)appeal 611 of 2023, namely McEwan v Clark & Ors [2023] QCA 120; and
(b)appeal 12599 of 2022, namely McEwan v Rains & Ors [2023] QCA 135.

Further factual background is set out in the second affidavit of Ms Lewis.

I will not seek to recapitulate the factual background in detail. The principal steps, however, must be mentioned.

By originating application filed 3 August 2022 the appellant commenced a proceeding in the Supreme Court which served a permanent stay of certain criminal proceedings. The appellant contended that the continuation of those proceedings was oppressive, involved prosecutorial misconduct, involved the court’s procedures for an illegitimate purpose and brought the administration of justice into disrepute. It is convenient to refer to this proceeding, which is proceeding 9181 of 2022, as the permanent stay application.

At the time the appellant filed her permanent stay application a committal hearing in the Magistrates Court in relation to the charges which the appellant had faced had been listed to commence in October 2022.

On 13 December 2022, the appellant filed an originating application in the Supreme Court of Queensland in proceeding 15660 of 2022, seeking, amongst other things, to have the committal proceeding delisted. The Magistrates Court committal proceeding had been listed to be heard on 8 May 2023. A disclosure hearing in that court was to be held on 9 March 2023.

On 21 December 2022, Boddice J disposed of the originating application. His Honour:

(a)dismissed the application for the committal proceeding to be delisted;
(b)dismissed the applications for disclosure;
(c)ordered that the appellant not file any further application in the Supreme Court in relation to the committal proceeding presently being heard in the Magistrates Court of Brisbane without the leave of that court; and
(d)ordered the appellant pay the eighth and ninth respondent’s costs of the application.

By notice of appeal dated 17 January 2023, the appellant sought to have the orders made by Boddice J set aside and sought leave to file an originating application seeking orders that the committal hearing be delisted and that the relevant prosecutions be “lifted out of the Magistrates Court and placed on the Supreme Court Supervised Case list.” That is appeal 611 of 2023 which was argued on 17 April 2023.

On 4 May 2023, appeal 611 of 2023 had not been determined, yet the committal hearing in the Magistrates Court was still pending; indeed, it was imminent. The appellant filed an urgent interlocutory application within proceeding 15660 of 2022, which had been determined by Boddice J and which was subject to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCA 147
Decision Date: 24 JULY 2023

CaseChat Overview and Summary

Julie McEwan, the appellant, has filed an appeal against the orders made by the lower court in the case of McEwan v Clark & Ors [2023] QCA 120 and McEwan v Rains & Ors [2023] QCA 135. The respondents in this case are Janine Clark, the Australian Taxation Office, Anthony Rains, the Commonwealth Director of Public Prosecutions, and Roberta Devereaux. The appellant seeks to appeal the orders made by the lower court in relation to her application for a permanent stay of criminal proceedings against her, as well as the dismissal of her application for an injunction to prevent the committal hearing from proceeding.

The central legal issue in this case is whether the appeal from the orders of the lower court should be struck out as unnecessary and inutile, given that the committal hearing has already taken place. The respondents argue that the appeal should be dismissed as it no longer serves any purpose, and that there is no reasonable cause of action. The appellant, on the other hand, contends that the appeal still has merit, particularly in challenging the cost orders. Additionally, the court must consider whether the appellant's oral application to amend the notice of appeal should be allowed, which would change the nature of the present appeal.

The Court of Appeal found that the appellant's attempt to change the nature of the present appeal by appealing from the orders made in the Magistrates Court instead of the orders of the lower court was not permissible. The appropriate course of action for the appellant, if there is jurisdiction to hear such an appeal, would be to file a separate notice of appeal from the orders made in the Magistrates Court. The Court of Appeal dismissed the appeal from the orders of the lower court as unnecessary and inutile, given that the committal hearing had already taken place. The court also found that there was no reasonably arguable basis for the appeal, and that it should be struck out.

In conclusion, the Court of Appeal struck out the appellant's appeal and ordered her to pay the respondents' costs of the appeal. The court found that there was no utility in continuing the appeal, as the committal hearing had already taken place, and there was no reasonably arguable basis for the appeal. The appellant's attempt to amend the notice of appeal was also dismissed, as it was not an appropriate vehicle for challenging the orders made in the Magistrates Court.

Orders