McEwan v Rains

In the case of McEwan v Rains, the appellant, who was facing numerous charges related to an Australian Taxation Office investigation, sought a permanent stay or setting aside of the proceedings. The appellant issued subpoenas to various witnesses, aiming to produce documents and testify at the hearing. However, the respondents obtained orders from the primary judge setting aside these subpoenas, arguing they lacked a legitimate forensic purpose and resembled a fishing expedition. The appellant appealed against these orders, asserting that the primary judge had not considered recent case law that had re-evaluated the criteria for setting aside a subpoena. The central legal issue was whether the primary judge had erred in setting aside the subpoenas and, if so, whether such an error resulted in substantial injustice.

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.