McEwan v Rains - [2023] QSC 183

SUPREME COURT OF QUEENSLAND

CITATION:

McEwan v Rains & Ors [2023] QSC 183

PARTIES:

JULIE MCEWAN

(applicant)

v
ANTHONY RAINS

(first respondent)

AND

AUSTRALIAN TAXATION OFFICE

(second respondent)

AND

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

(third respondent)

FILE NO:

BS9181/22

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

21 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2023

JUDGE:

Freeburn J

ORDERS:

1.   The application by the applicant for leave to issue a subpoena (in the form of “Subpoena to Produce Evidence”) is refused.

2.   The respondents’ interlocutory application be set down for a one-day hearing in the civil list on a date to be fixed.

3.   The parties be heard on costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – SUBPOENAS – where the applicant applies for leave to issue a subpoena – where the proposed subpoena does not require an attendance at court, or for documents to be produced – whether the subpoena should be issued in circumstances where there is no sufficient precision in the subpoena for the witness to identify what documents are sought

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – INTERLOCUTORY APPLICATIONS – where the respondents wish to bring an interlocutory application to have the proceeding set aside or stayed – where the applicant contends that her substantive application ought to be listed prior to the interlocutory application – whether permitting the respondent’s interlocutory application would cause prejudice to the applicant

COUNSEL:

The applicant was self-represented
S McLeod KC, M McKechnie and P Kinchina for the first to third respondents

SOLICITORS:

The applicant was self-represented
Australian Government Solicitor for the respondents

REASONS

This proceeding is managed on the self-represented litigants list. There are two applications before the court. The first is an application by the plaintiff, Ms McEwan, for leave to issue a subpoena. The second is an application by the respondents to list an interlocutory application for hearing.

Subpoena

Ms McEwan seeks to issue a subpoena addressed to “the Commonwealth Attorney-General, the Honour Mark Dreyfus KC MP”.
Pursuant to rule 415 of the Uniform Civil Procedure Rules 1999 the Registrar can, at the request of a party, issue a subpoena requiring production of documents, or requiring a witness to attend court for the purpose of giving evidence, or requiring both production of documents and the attendance of the witness. The proposed subpoena is not one of those three types of subpoenas which may be issued by the court.
The proposed subpoena is a hybrid labelled “Subpoena to Produce Evidence”. It seems to be in an adapted version of Form 43 of the rules, requiring both documents and attendance for the purposes of giving evidence.
The first problem is that the proposed subpoena does not require the Commonwealth Attorney-General to attend court and/or to produce to the court the documents at a designated time on a particular day at a particular place. The nature of a subpoena –…

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.

Continue reading McEwan v Rains

Details

AGLC: McEwan v Rains [2023] QSC 183
Case: [2023] QSC 183
Decision Date: 21 August 2023

CaseChat Overview and Summary

In the matter of McEwan v Rains, the applicant sought leave to issue a subpoena in the Supreme Court of Victoria. The nature of the dispute is not explicitly detailed, but it involves the issuance of a subpoena as part of the civil proceedings. The legal issues before the court included whether the subpoena should be issued due to a lack of sufficient precision regarding the documents sought and the implications of permitting an interlocutory application to set aside or stay the proceedings. The court had to determine if permitting the respondents’ interlocutory application would cause undue prejudice to the applicant.

The court examined the precision of the subpoena, noting that it lacked sufficient detail for the witness to identify the specific documents sought. This imprecision was deemed significant because it could lead to the subpoena being vague and ineffective in fulfilling its purpose. Additionally, the court considered the potential prejudice to the applicant if the respondents' interlocutory application was permitted, which could result in setting aside or staying the substantive application. The court weighed these factors in its decision.

In its reasoning, the court concluded that the subpoena should not be issued due to the lack of precision. The court was also concerned that allowing the respondents' interlocutory application could prejudice the applicant, potentially delaying or disrupting the substantive proceedings. Consequently, the application for leave to issue the subpoena was refused, and the respondents’ interlocutory application was scheduled for a one-day hearing. The court further directed that the parties be heard on the issue of costs.

The final orders of the court were that the applicant's request for leave to issue a subpoena was denied. The respondents’ interlocutory application was set down for a one-day hearing in the civil list. The court also indicated that the parties would be heard on the matter of costs.

Orders

Orders of the court

1. The application by the applicant for leave to issue a subpoena (in the form of “Subpoena to Produce Evidence”) is refused.

2. The respondents’ interlocutory application be set down for a one-day hearing in the civil list on a date to be fixed.

3. The parties be heard on costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McEwan v Rains & Ors [2023] QSC 183
PARTIES:	JULIE MCEWAN (applicant) v ANTHONY RAINS (first respondent) AND AUSTRALIAN TAXATION OFFICE (second respondent) AND COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (third respondent)
FILE NO:	BS9181/22
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	21 August 2023
DELIVERED AT:	Brisbane
HEARING DATE:	1 August 2023
JUDGE:	Freeburn J
ORDERS:	1. The application by the applicant for leave to issue a subpoena (in the form of “Subpoena to Produce Evidence”) is refused. 2. The respondents’ interlocutory application be set down for a one-day hearing in the civil list on a date to be fixed. 3. The parties be heard on costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – SUBPOENAS – where the applicant applies for leave to issue a subpoena – where the proposed subpoena does not require an attendance at court, or for documents to be produced – whether the subpoena should be issued in circumstances where there is no sufficient precision in the subpoena for the witness to identify what documents are sought PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – INTERLOCUTORY APPLICATIONS – where the respondents wish to bring an interlocutory application to have the proceeding set aside or stayed – where the applicant contends that her substantive application ought to be listed prior to the interlocutory application – whether permitting the respondent’s interlocutory application would cause prejudice to the applicant
COUNSEL:	The applicant was self-represented S McLeod KC, M McKechnie and P Kinchina for the first to third respondents
SOLICITORS:	The applicant was self-represented Australian Government Solicitor for the respondents