McEwan v Clark

Case [2023] QCA 120

SUPREME COURT OF QUEENSLAND

CITATION:

McEwan v Clark & Ors [2023] QCA 120

PARTIES:

JULIE McEWAN
(appellant)
v
JANINE CLARK
(first respondent)
AUSTRALIAN TAXATION OFFICE
(second respondent)
ANTHONY RAINS
(third respondent)
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(fourth respondent)
ROBERTA DEVEREAUX
(fifth respondent)
ROMAN MICAIRAN
(sixth respondent)
DIRECTOR OF PUBLIC PROSECUTIONS
(seventh respondent)
COMMISSIONER OF THE QUEENSLAND POLICE SERVICE
(eighth respondent)
ADRIAN HOLT
(ninth respondent)

FILE NO/S:

Appeal No 611 of 2023
SC No 15660 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 21 December 2022 (Boddice J)

DELIVERED ON:

2 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

17 April 2023

JUDGES:

Morrison and Flanagan JJA and Crow J

ORDERS:

1.   The application for leave to adduce further evidence is refused.

2.   The appeal is dismissed.

3.   The appellant pay the respondents’ costs of and incidental to the appeal.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – GENERALLY – where the appellant was charged with 30 offences alleged to have been committed under the Criminal Code (Cth) and the Criminal Code (Qld) relating variously to attempting to dishonestly obtain a financial advantage from the Australian Taxation Office, dishonestly influencing a Commonwealth official, and engaging in forgery and uttering – where the prosecution of those offences is currently on foot in the Magistrates Court – where a Magistrate made orders in those proceedings regarding disclosure and the setting down of a committal hearing for the charges – where, the day after the orders were made by the Magistrate, the appellant filed an Originating Application in the Supreme Court seeking various orders relating to the committal hearing, disclosure, and that the prosecution proceedings be placed on the Supreme Court Supervised Case List – where the primary judge dismissed the appellant’s applications, and ordered that the appellant not file any further applications in the Supreme Court in relation to the committal proceedings without leave of the Supreme Court – whether the primary judge erred in dismissing the appellant’s application to the Supreme Court

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the appellant contended that the primary judge did not afford her procedural fairness in relation to the relief sought – whether the appellant was afforded procedural fairness

Justices Act 1886 (Qld), s 83A(7), s 222

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, cited
Frugtniet v Victoria (1997) 71 ALJR 1598; [1997] HCA 44, applied
House v The King (1936) 55 CLR 499; [1936] HCA 40, considered
Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1, cited
Obeid v The Queen (2016) 90 ALJR 447; [2016] HCA 9, applied
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2, applied
Schneider v Curtis [1967] Qd R 300, applied

COUNSEL:

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AGLC
McEwan v Clark [2023] QCA 120
Case
[2023] QCA 120
Decision Date

CaseChat Overview and Summary

In the case of McEwan v Clark, the appellant, who was charged with 30 offences under the Criminal Code (Cth) and the Criminal Code (Qld), sought various orders in the Supreme Court to address issues related to her pending prosecution in the Magistrates Court. These issues included the setting down of a committal hearing, disclosure of evidence, and the placement of the prosecution proceedings on the Supreme Court Supervised Case List. The primary judge dismissed the appellant's applications and ordered that she not file any further applications without leave of the Supreme Court. The appellant's appeal against the primary judge's decision raises questions about the inherent and statutory powers of the court to prevent abuse of process, procedural fairness, and the grounds for judicial review.

The primary legal issue was whether the primary judge erred in dismissing the appellant’s application to the Supreme Court. The appellant argued that she was not afforded procedural fairness in the proceedings before the primary judge. The court examined the inherent and statutory powers of the Supreme Court to prevent abuse of process, the need to avoid fragmenting proceedings, and the specific role of the Magistrates Court in determining disclosure issues before a committal hearing. The court also considered whether the primary judge's decision was procedurally unfair and whether it contravened the principles of natural justice.

The court concluded that the primary judge did not err in dismissing the appellant's application. The court found that there was no basis for the Supreme Court to interfere with the committal proceedings in the Magistrates Court, as such interference would fragment the proceedings and be contrary to the interests of justice. The matter of disclosure was specifically to be determined by the Magistrates Court prior to the hearing of the committal proceeding, and it would be inappropriate for the Supreme Court to intervene in that process. The court also found that the appellant was not denied procedural fairness as she had not been impeded from filing her material for the court to determine if there were exceptional circumstances for the Supreme Court to interfere in the committal proceedings. The court further held that the appellant's unsubstantiated allegations of conspiracy and misconduct did not provide a basis for granting leave to adduce further evidence.

The court dismissed the appeal and refused the application to adduce further evidence. The appellant was ordered to pay the respondents' costs of and incidental to the appeal. The court held that the primary judge's decision was consistent with the court's inherent and statutory powers, and there was no procedural unfairness in the conduct of the proceedings. The appeal was dismissed, and the orders were made as stated above.

Orders

Orders of the court

1. The application for leave to adduce further evidence is refused.

2. The appeal is dismissed.

3. The appellant pay the respondents’ costs of and incidental to the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is not apparent how the grounds of appeal challenge the issue relating to disclosure as it relates to the seventh, eighth, and ninth respondents. Whilst Order 4 in the Originating Application filed 13 December 2022 sought disclosure from the eighth respondent, the orders sought in this Court by the appellant do not identify any relief relating to disclosure against the eighth respondent. No relief is sought against the ninth respondent. No relief is available against the seventh respondent.The application to adduce evidence On 11 April 2023, the appellant filed an application seeking leave to adduce further evidence on the appeal. It merely sought:“Leave to adduce further evidence that is relevant to the appeal and opposing submissions made by Ms McDonald SC.” The basis of the application for the grant of leave is said to be:“1.The submissions made by Barrister Ms McDonald SC that the allegations made by the appellant are unsubstantiated is false.2.The evidence will demonstrate the appellant has exceptional circumstances why the appeal should be allowed, and refute the statements made by Ms McDonald about the appellant.3.Ms McDonald has been appearing in the Brisbane Magistrates court and is in possession of documents and transcripts that supports the allegations made by the appellant are true, and there was no reasonable basis for Ms McDonald to make those statements to the court.” It is apparent that the application seeks to adduce the evidence to try and counter what was submitted by Senior Counsel for the CDPP in the written outline below. As to that, the submission was made:[20]“Notably, whilst self-represented, the applicant continually makes unsubstantiated and at times scandalous allegations that investigative agency (the ATO), the prosecutorial agencies (the QPS, ODPP, and CDPP), as well as their employees/agents, and investors in one of her companies (Brisbane Angels), conspired with each other against her. The allegations made by the applicant are unsubstantiated, and are rejected by the Respondents.”[20]CDPP outline, paragraph [11], AB 18. That submission was not repeated in the course of oral submissions before the learned primary judge. The foundation for that submission was in the affidavit of Ms Albert, which was read by leave on the hearing of the application below. No objection was taken to its being relied upon. For example, exhibits to that affidavit contained assertions by the appellant that: (i) the ATO and others conspired to bring false charges against her;[21] (ii) there was evidence of criminality in the ATO and the prosecutors withholding evidence from the Court;[22] (iii) the Commonwealth’s approach was disingenuous;[23] (iv) the ATO prosecution involved use of the court’s procedures for “an illegitimate process”;[24] (v) the third respondent had perjured himself, and those appearing for the Commonwealth were “dishonest”;[25] (vi) the conduct in bringing charges against her was “criminal in nature”;[26] (vii) the failure to disclose was fraudulent and a “dishonest attempt to conceal exculpatory evidence from the court”;[27] (viii) the third respondent was a “criminal” and those involved in the prosecutions were “criminals”;[28] (ix) Magistrate Merrin had “tried to bury the evidence”;[29] and (x) the Magistrates Court was involved in a “conspiracy to prejudice” the appellant.[30][21]AB 159–160, 390, 397.[22]AB 290.[23]AB 292.[24]AB 302.[25]AB 313–314, 318.[26]AB 329.[27]AB 401.[28]AB 401–402.[29]AB 402.[30]AB 430.

Decision

Reasons for decision

There is no basis upon which leave to adduce the further evidence should be granted.Conclusion For the reasons expressed above, the application to adduce further evidence must be refused and the appeal must be dismissed. The orders are:1.The application for leave to adduce further evidence is refused.2.The appeal is dismissed.3.The appellant pay the respondents’ costs of and incidental to the appeal.

Ratio Decidendi

Legal Principle Established

His Honour then expressed his findings in this way:[8]“Having considered the material, I am satisfied it is not appropriate to make any of the orders sought by the applicant.First, this Court does not use any supervisory jurisdiction to interfere with committal proceedings being conducted in another Court. That is to fragment proceedings, and it is contrary to the interests of justice.Second, the matter of disclosure is specifically to be the subject of a determination by the Magistrates Court, prior to the hearing of that committal proceeding. It would equally be to fragment the process for this Court to interfere in that process.In those circumstances, the application for the committal proceeding to be delisted and/or adjourned and the applications for disclosure are dismissed.”[8]AB 544 lines 35–47.Consideration By her amended outline, the appellant submits that “[t]he substance of the appeal relates to procedural fairness”. The appellant characterises her application before the learned primary judge as being:[9]“… an application in the Supreme court to have the Committal proceedings uplifted to the Supreme court for supervision. Within the substantive relief sought, the appellant sought an interlocutory order seeking, the prosecution and respondents comply with Judge Moynihan’s orders.”[9]Appellant’s amended outline, paragraph [44]. The substance of the appellant’s submission as to the procedural unfairness in the conduct of the proceedings before the learned primary judge is expressed this way:[10]“46.His Honour’s conduct constituted an obstacle and impediment by refusing to make the order. The Primary Judge interfered with the proper administration of justice by refusing to provide procedural fairness to the appellant, especially when the allegations relating to the seriousness of the abuse of process complained of were serious....48.There was no impediment for the Primary Judge to allow the appellant to receive the simple relief of listing a hearing where she could file her evidence and be afforded procedural fairness.49.The Primary Judge had already made a determination in an earlier decision relating to the Supreme court’s power to intervene and fragment committal proceedings in exceptional circumstances.50.The ratio behind the decision of the primary judge to make a contradictory determination against the appellant is unclear, any fair-minded decision maker would conclude the decision was unfair and prejudicial....54.The relief sought by the appellant was to be allowed to file her material for the court to ‘determine if there were exceptional circumstances for the Supreme court to interfere in the committal proceedings.’ The appellant had not been afforded procedural fairness to file her material to be heard in this matter relating to the allegations relating to serious and ongoing abuses of process.”[10]Appellant’s amended outline, paragraphs [46], [48]–[50] and [54]. Internal footnotes omitted. For the reasons which follow, the appellant’s contentions must be dismissed.