SUPREME COURT OF QUEENSLAND
CITATION:
McEwan v Rains & Ors [2023] QCA 135
PARTIES:
JULIE McEWAN
(appellant)
v
ANTHONY RAINS
(first respondent)
AUSTRALIAN TAXATION OFFICE
(second respondent)
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(third respondent)FILE NO/S:
Appeal No 12599 of 2022
SC No 9181 of 2022DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – Unreported, 15 September 2022 (Cooper J)
DELIVERED ON:
30 June 2023
DELIVERED AT:
Brisbane
HEARING DATE:
23 November 2022
JUDGES:
McMurdo and Bond JJA and Callaghan J
ORDERS:
1. Application for leave to rely on further evidence refused.
2. Appeal allowed.
3. Set aside the orders made by the primary judge on 15 September 2022.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – SUBPOENAS AND NOTICE TO PRODUCE AT HEARING – SETTING ASIDE OR OTHER RELIEF – where the appellant was charged with 30 offences relating to an investigation conducted by the Australian Taxation Office (“the ATO Charges”) – where the appellant filed an originating application in the Supreme Court against the respondents seeking a permanent stay of the ATO Charges or, alternatively, orders setting the proceedings aside – where the appellant caused the issue of nine subpoenas requiring the attendance of witnesses at the hearing of the application, both to give evidence and to produce documents – where, prior to the substantive hearing, the respondents sought and obtained orders from the primary judge setting aside each of those subpoenas on the basis the subpoenas disclosed no legitimate forensic purpose and bore the character of a fishing expedition – where the appellant seeks to set aside those orders – where the primary judge’s attention was not drawn to a recent decision in the New South Wales Court of Appeal which reconsidered the line of previous authorities with respect to the relevant considerations for an exercise of discretion to set aside a subpoena – where that recent decision has been referred to with approval on multiple occasions in other superior courts – whether that recent decision should be followed in an exercise of discretion to set aside a subpoena – whether the primary judge erred in the approach taken – whether that error caused a substantial injustice to the appellant
Criminal Code (Cth), s 11.1, s 134.2, s 135.1
Criminal Code (Qld), s 488
Taxation Administration Act 1953 (Cth), s 353-10, s 355-50, s 355-70
Uniform Civil Procedure Rules 1999 (Qld), r 416Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141; [2021] QCA 198, applied
Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65, distinguished
Beale v Chief Health Officer & Anor[2022] QCA 188, applied
Director of Public Prosecutions & Ors v McEwan[2022] QCA 142, related
McEwan v Director of Public Prosecutions & Anor[2022] QCA 231, related
McEwan v The Commissioner of Taxation of the Australian Taxation Office [2022] QSC 81
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- AGLC
- McEwan v Rains [2023] QCA 135
- Case
- [2023] QCA 135
- Decision Date
CaseChat Overview and Summary
The court examined the primary judge's reasoning and found that while the subpoenas sought evidence relevant to complaints about the prosecution of a separate fraud charge, there was insufficient evidence to suggest that the subpoenaed witnesses would provide material assistance in proving the appellant's claims regarding misconduct in the ATO charges. The court further noted that the subpoenas seemed to be an attempt to explore unrelated issues rather than focusing on the specific stay application. The appellant argued that the primary judge failed to consider recent case law that had been endorsed in other superior courts, potentially impacting the discretionary exercise to set aside the subpoenas. The court held that the primary judge's failure to consider this recent authority constituted an error. This error was deemed to have caused substantial injustice to the appellant, as it deprived her of the opportunity to present potentially relevant evidence in support of her stay application.
The court allowed the appeal and set aside the orders made by the primary judge on 15 September 2022. Additionally, the appellant's application for leave to rely on further evidence was refused. The orders made by the court included dismissing the application for further evidence, allowing the appeal, and setting aside the primary judge's orders regarding the subpoenas. The decision underscored the importance of considering relevant case law in discretionary exercises and the potential consequences of errors in such processes.
Orders
Orders of the court
1. Application for leave to rely on further evidence refused.
2. Appeal allowed.
3. Set aside the orders made by the primary judge on 15 September 2022.
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
Ratio Decidendi
Legal Principle Established
His analysis then proceeded in the following way:(a)The brief of evidence for the State Fraud Charge and the ATO Charges was not the same.(b)Although there was some overlap in the evidence between the State Fraud Charge and the ATO charges, the two prosecutions were distinct in that the former involved Apagein Biotech and the latter involved Venika Biotech and there were different allegations of fraudulent or dishonest conduct.(c)Even if the appellant could establish some valid criticism of the way in which the State Fraud Charge was prosecuted, that would not be enough to impugn the conduct of the proceedings in respect of the ATO charges.(d)The effect of the appellant’s submission was that the conduct of the investigators and prosecutors of the State Fraud Charge must necessarily mean that there had been similar misconduct in the ATO charges. But the applicant could not demonstrate any real support for that submission.(e)Although much of the evidence sought by the subpoenas was sought in order to establish the appellant’s complaints about the conduct of the prosecution of the State Fraud Charge, there was no reason to believe that it was on the cards that any of the first respondent or the representatives of Brisbane Angels who had been subpoenaed would give evidence that may assist the appellant in proving that they, together, conspired to make false accusations giving rise to the State Fraud Charge. His Honour inferred that human nature was such that those persons would probably give explanations which did not admit of any conspiracy or any knowledge that false accusations had been made.(f)Based on similar assessment of human nature, his Honour was not persuaded that it was on the cards that any of the employees or officers of the QPS, the CDPP or the Queensland DPP who had been subpoenaed would give evidence that may assist the appellant in proving that they had improperly or maliciously prosecuted the State Fraud Charge.(g)Further, even in the unlikely event that those witnesses gave evidence relevant to proving the appellant’s complaints about misconduct relating to the State Fraud Charge, his Honour found that the absence of a demonstrated connection between the conduct of the prosecution of the State Fraud Charge and the asserted bases for staying the prosecution of the ATO charges meant that the appellant had not demonstrated that it was on the cards that such evidence would materially assist her on the stay application.(h)By a similar reasoning process, his Honour concluded that he did not accept that it was on the cards that any of the subpoenaed witnesses would give evidence that would materially assist the appellant on the stay application on the issue of establishing the complaints she made concerning disclosure in relation to the State Fraud Charge and in relation to the ATO charges.(i)His Honour specifically considered the subpoenas to witnesses who might give evidence as to the extent of disclosure of the record of the appellant’s compulsory interview bore the character of a fishing expedition. And, in any event, he did not think that any evidence which might reveal such inappropriate disclosure or sharing would materially assist the appellant’s stay application.(j)Finally, his Honour referred to but did not form any conclusion on the suggestions advanced by the respondents that the appellant issued the subpoenas for some purpose unconnected with the hearing and determination of her stay application, or that the subpoenas were an abuse of process because they formed part of a collateral attack on the committal process.[3](k)He concluded that he was not satisfied that there was a proper basis for the subpoenas, as it was not on the cards that evidence that might be given by the subpoenaed witnesses might materially assist the appellant on her stay application. On that basis he ordered that all the subpoenas be set aside.[3]No notice of contention was filed by the respondents. Accordingly, it is not necessary to consider whether, if otherwise this Court was persuaded that the orders made by the primary judge should be set aside, the orders could be supported on the basis of the arguments not considered.Consideration