McEwan v Director of Public Prosecutions

In McEwan v Director of Public Prosecutions, the appellant, who was previously charged with fraud, sought damages for malicious prosecution and misfeasance in public office against the Director of Public Prosecutions and a prosecutor. The respondents applied for summary judgment under s 25 of the Director of Public Prosecutions Act 1984 (Qld) and for the respondents to be removed as parties under s 26C of the Public Service Act 2008 (Qld). The primary judge granted summary judgment on the basis of s 25, without considering the alternative relief. The appellant appealed, arguing that the immunity under s 25 did not extend to allegations of malicious prosecution or malfeasance in public office. The respondents filed a notice of contention conceding the ground of appeal but argued that the primary judge should have held that the prosecutor could not be liable for the claims due to s 26C of the Public Service Act. The Court of Appeal considered whether it should entertain the respondents' contention since no application for summary judgment under s 26C was made before the primary judge.

The Court of Appeal held that it should not entertain the respondents' contention because the respondents did not apply for summary judgment under s 26C before the primary judge. The relief sought under s 26C was for the respondents to be removed as parties, not for summary judgment. The discretion to grant summary judgment is different from the discretion to remove parties. If the Court of Appeal considered the respondents' application for summary judgment on the basis of s 26C, the appellant would be deprived of a right of appeal. The appellant objected to the respondents raising this argument for the first time on appeal. Additionally, there was no application to amend the application before the primary judge. The Court was also unable to assess any challenge by the appellant to the assertion that the prosecutor was acting in an official capacity without the most current version of the statement of claim.

The Court of Appeal allowed the appeal, set aside the summary judgment, and ordered the respondents to pay the appellant's costs of the appeal. The order for indemnity costs made by the primary judge was also set aside by consent of the parties.