McEwan v The Commissioner of Taxation
[2022] QSC 279
•12 December 2022
SUPREME COURT OF QUEENSLAND
CITATION:
McEwan v The Commissioner of Taxation [2022] QSC 279
PARTIES:
JULIE McEWAN
(plaintiff)
v
THE COMMISSIONER OF TAXATION(first defendant)
AND
ANTHONY RAINS
(second defendant)
AND
THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(third defendant)
AND
ROMAN MICAIRAN
(fourth defendant)
AND
KATIE LUKIN
(fifth defendant)
AND
JESSICCA WILLIAMS
(sixth defendant)
AND
ROBERTA DEVEREAUX
(seventh defendant)
THE STATE OF QUEENSLAND
(eleventh defendant)
FILE NO/S:
971 of 2022
DIVISION:
Trial
PROCEEDING:
Application on the papers
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
12 December 2022
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Freeburn J
ORDERS:
1. The plaintiff have leave to amend her fourth revised statement of claim (the statement of claim) on or before 24 December 2022 in the following respects:
a. to clarify the date, or dates, at which the plaintiff contends the proceedings were instituted without reasonable and probable cause and maliciously;
b. to identify the “considerable evidence that exculpated Ms McEwan” referred to in paragraph 23 of the statement of claim and the “exculpatory evidence” or other similar expressions used in paragraphs
c. to clarify whether the plaintiff’s case is that there was no evidence that supported the prosecution case, and there was a substantial body of evidence that pointed to her innocence of the charge;
d. to identify precisely the facts relied on to prove malice;
e. to deal with the problem of the open-endedness created by the use of the word “including” in paragraphs 28(a)(i), 31(a)(i), 35(a)(i), 39(a)(i), 43(a)(i) and 110 of the statement of claim;
f. to deal with the problem created by the words “ought reasonably to have known” in paragraph 40(d) of the statement of claim;
g. to deal with the problem that the allegations in paragraphs 79, 84, 89, 94, 99 and 104 of the statement of claim appear to raise an issue about Mr Rains (and the other officers) being in a position of a conflict of duty and duty, but the conflict is not identified and relevance is not explained.
2. On or before 24 December 2022 the plaintiff provide particulars (as part of her amended statement of claim directed by order 1 above) that supply the particulars requested by the first to seventh defendants (the Commonwealth defendants) in their requests numbered 1 to 30 inclusive.
3. The Commonwealth defendants have leave to amend their defence on or before 28 January 2023 in the following respects:
a. paragraph 23 - so as to deal with the problem of the open-endedness created by the use of the word “including” in paragraph 23(b) and in the chapeau to the particulars to paragraph 23;
b. paragraph 24 - so as to clarify whether Commonwealth defendants deny the receipt of the no-case submissions and deny the sending and receipt of the Fogerty no-case submission;
c. paragraph 32 - so as to positively plead to the allegations that Mr Rains altered the spreadsheet and that he made the alterations alleged by the plaintiff;
d. so as to properly plead to paragraphs 40(c), 44(c), 48(c) and 52(d) of the statement of claim;
e. so as to positively plead to paragraph 52(b) of the statement of claim.
4. On or before 28 January 2023 the Commonwealth defendants provide particulars (as part of the amended defence directed by order 3 above) that:
a. in respect of paragraph 22 of their defence, identify the part of the Second Mactaggart QPS Statement which refers to how part of the BA Investment was spent;
b. in respect of particular (d) in the particulars to paragraph 23 of their defence, identify the “business plan” referred to and provide a copy to the other parties pursuant to UCPR 222.
5. The eleventh defendant (the State) have leave to amend paragraphs 18, 24, 25, 26, 32, 44 of its defence.
6. The proceeding be listed for review on the Supervised Case List for Self-Represented Litigants on 9 February 2023, at 9:00am.
7. Costs be reserved.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PRACTICE AND PROCEDURE – application for further and better particulars – where a number of applications by various parties were made for further and better particulars of each other’s pleadings – Where there are some problems with the pleadings – whether the requests for further and better particulars ought to be accepted or dismissed
Uniform Civil Procedure Rules 1999 (Qld) r 149, r 155, r 157
Robertson v Hollings [2009] QCA 303, applied
Bayliss v Cassidy (No 2) [1998] QCA 38, applied
COUNSEL:
J McEwan for herself
M Wilkinson and O Cook for the first to seventh defendants
J Prior (sol) for the eleventh defendantsSOLICITORS:
J McEwan is self-represented
Australian Government Solicitor for the first to seventh defendants
Crown Law for the eleventh defendant
REASONS
INTRODUCTION
A broad collection of entities, called Brisbane Angels,[1] had an interest in providing funds for start-up investment projects, with a particular focus in biotechnology. The Brisbane Angels decided to invest $185,000 in a weight loss project operated by Ms McEwan (and entities associated with her). That project was called the Carbstarver project. Ms McEwan says she reconciled her use of the $185,000 investment by means of an acquittal spreadsheet on 16 August 2017. A year later, however, Ms McEwan was charged with fraud. She was committed for trial in the District Court on 10 December 2019. No case submissions were made on 8 July 2019, 19 March 2020, and 28 August 2020. Eventually, on 12 May 2021, a nolle prosequi was entered.
[1]The entity Brisbane Angels is abbreviated in the statement of claim to ‘BA’. That abbreviation is sometimes used in these reasons.
Ms McEwan now sues the first to seventh defendants (the Commonwealth defendants) for malicious prosecution and misfeasance in public office. On similar causes of action, she also sues the remaining defendant, the State of Queensland. The State is sued as being vicariously liable for the actions of a Queensland police officer, the Queensland Director of Public Prosecutions (DPP) and Ms McGregor, a legal officer within the DPP.
This case is being managed on the Supervised Case List for Self-Represented Litigants (SRL).
There are a number of applications by various parties for further and better particulars of each other’s pleadings. It is necessary to deal with each application for particulars in turn.
General Principles
In doing so, it is necessary to bear in mind these general principles:
a)each pleading must be brief, and must contain a statement of all of the material facts on which the party relies, but not the evidence by which those material facts are to be proved;[2]
b)there is an important distinction between material facts (such as the fact of a contract, or a breach etc) and the evidence by which those facts are to be proved. The former comprises the bare elements of the cause of action whilst the latter comprises details which will assist in proof of the elements;
c)the pleading must also state those matters which, if not stated specifically, may take the opposite party by surprise;[3]
d)if damages are claimed in a pleading, the pleading must state the nature and the amount of the damages claimed;[4]
e)a party claiming general damages must state particulars of the nature of the loss or damage that was suffered, the exact circumstances in which the loss or damage was suffered and the basis on which the amount claimed has been worked out or estimated;[5]
f)particulars should be included in a pleading where they are necessary to define the issues for the trial and to prevent surprise at the trial; the purpose of particulars is to add context and depth to the pleaded material facts – particulars are not evidence but are clarification.[6]
[2]Uniform Civil Procedure Rules 1999 (UCPR), r 149(1)(a)(b).
[3]UCPR r 149(1)(c).
[4]UCPR r 155(1).
[5]UCPR r 155(2).
[6]UCPR r 157.
Pleadings, of course, serve the purposes of procedural fairness. They enable the opposite party to know the case they must meet at trial.
As Ms McEwan is self-represented it is relevant to note a case referred to by the Commonwealth defendants. In Robertson v Hollings[7] Keane JA (with whom Fraser JA and Cullinane J agreed) said:
As to grounds 1 and 3 of the amended notice of appeal, litigation is not a learning experience. The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. It is no doubt unfortunate for Mrs Robertson that she does not have the benefit of competent legal advice and representation; but her misfortune in this regard does not license her to proceed unconstrained by the rules according to which adversarial litigation is conducted.
[7][2009] QCA 303 at [11].
Some Problems with the Pleadings
Here, Ms McEwan’s principal case is that she is entitled to damages because of the malicious prosecution of the Commonwealth defendants and the State of Queensland. The five elements of that cause of action are as follows:
a)Ms McEwan was prosecuted by the defendants – i.e. the legal process was set in motion against her on a criminal charge;
b)Those criminal proceedings were resolved in her favour;
c)The proceedings were instituted without reasonable and probable cause;
d)The defendants instituted the proceedings maliciously; and
e)Ms McEwan suffered loss and damage as a result.[8]
[8]These elements are derived from the discussion in Section 69 of Bullen Leake & Jacob’s Precedents of Pleadings (13th ed) at 642.
Ms McEwan’s pleading of those elements is not easily discerned from her statement of claim.[9] Some elements are rather obscure, and some are expressed at a level of generality. For example, in paragraph 23 of her statement of claim Ms McEwan says this:
In the premises, neither the CDPP nor the DPP had any evidence that could reasonably support the QPS Charge but did have considerable evidence that exculpated Ms McEwan of the charge and disclosed lines of defence that was no case to answer on multiple occasions.
[9]For convenience I shall refer to the present version of Ms McEwan’s pleading, the fourth revised statement of claim, as the statement of claim.
The first part of that paragraph is an allegation that the CDPP and the DPP had no evidence that could reasonably support the QPS charge. The second part of the paragraph pleads that both the CDPP and the DPP possessed “considerable evidence” that exculpated Ms McEwan. That exculpatory evidence needs to be identified. The possession of that exculpatory evidence by the CDPP and DPP is, presumably, a material fact that Ms McEwan relies on to establish the third element identified above, namely that the proceedings were instituted without reasonable and probable cause.
The paragraphs that precede paragraph 23 give some hints as to what may be the exculpatory evidence that Ms McEwan refers to. In paragraphs 21 and 22, Ms McEwan refers to three categories of evidence: the Apagein Documents, the BA ATO statements and the BA QPS statements. However, only the first of those categories is said to demonstrate that the money was spent in accordance with the acquittal, and therefore not spent fraudulently by Ms McEwan. The second and third categories of statements are not pleaded as being exculpatory. They are merely pleaded as making no allegations as to how the money was spent and are said not to contend that Ms McEwan spent the money for her own personal use. It is possible that Ms McEwan wishes to contend that this evidence is exculpatory. However, it is difficult to see how that can be so. An absence of evidence as to expenditure is just that, an absence of evidence.
That leads to another of the difficulties with Ms McEwan’s pleading. As explained, the third element of the cause of action is that the proceedings were instituted, or prosecuted, without reasonable or probable cause. That requires focus on a specific date at which the prosecution of the proceeding was without reasonable or probable cause.
Subject to an issue I will raise in a moment, that focus on a specific date requires a weighing of the evidence known to the defendants at that specific point in time. Subsequent evidence might come to light either establishing innocence or guilt. That will not assist the claim of malicious prosecution. The question is whether there were reasonable grounds at the relevant time when the decision was made to prosecute, or to continue a prosecution, in spite of the absence of reasonable cause.
Viewed in that way, paragraph 23, and much of the narrative in Ms McEwan’s statement of claim, obscures rather than elucidates the real issues. I say that because paragraph 23 of the statement of claim does not identify any specific date. The context in which paragraph 23 appears, particularly paragraphs 19 to 22, suggest that paragraph 23 is focussed on the period after March 2019.[10] However, the subsequent paragraphs refer to events that occurred over a two-year period, namely in August 2018, July 2019, March 2020 and August 2020.[11]
[10]That is when the BA QPS statements were prepared.
[11]See the particulars to paragraph 24 of the statement of claim.
There is another problem with paragraph 23. When paragraph 23 is read, it seems to put Ms McEwan’s case in a rather black and white way. Paragraph 23 suggests that Ms McEwan’s case is that:
a)the prosecution possessed no evidence that could reasonably support the charge; and
b)the prosecution possessed “considerable evidence” that exculpated Ms McEwan of the charge.
In other words, the case is that there was no evidence that supported the prosecution case, and there was a substantial body of evidence that pointed to her innocence. It is unclear whether that is Ms McEwan’s intention in the pleading. Some parts of the pleading, and Ms McEwan’s requests for particulars, support that strong case. Other parts of the pleading and the requests support the idea that Ms McEwan’s real case is that on the basis of a weighing exercise, the predominance of the evidence supported her innocence. That lack of clarity is a problem.
The plea of commencing or continuing the prosecution in the absence of reasonable and probable cause gives rise to some further problems. Ms McEwan is obliged to plead and prove that element. The issue is in contest in that the Commonwealth defendants and the State defend on the basis that they did have reasonable and probable cause. Some older cases suggest that, in a malicious prosecution case, a settled practice is that particulars are not usually ordered where the defendant positively asserts that there was reasonable and probable cause.[12] That rationale for that practice is that it is for the plaintiff to show a want of reasonable and probable cause. For present purposes though, the need to avoid surprise[13] means that it is not appropriate to reject Ms McEwan’s requests for particulars merely on the basis of that rule of practice.
[12]See, for example Ryan v Woodbridge [1890] 16 VLR 572. The cases were usefully discussed and distinguished as only applying to malicious prosecution cases in Dwyer v The National Trustees Executors & Agency Co of Australasia Ltd [1939] VLR 96.
[13]From the point of view of case management, it is important that all three parties, including the self-represented plaintiff, clearly understand the case to be mounted by the other parties.
Another problem is the plea of malice – the fourth of the five elements of malicious prosecution. Such a plea is a serious matter requiring Ms McEwan to identify and prove a level of conduct so as to make out the plea.[14] It is doubtful that this aspect is pleaded in a way that is clear for the parties and for the court.
[14]See for example the discussion of the plea of malice in the defamation context in McDonald v State of South Australia [2017] SASCFC 146 at [151].
Some of these issues arise in the discussions of particulars below. However, clarity is needed. For that purpose, Ms McEwan should have leave to amend to address the aspects identified above.
There are three broad groups of particulars requested. Ms McEwan has requested particulars from the Commonwealth defendants, the Commonwealth defendants have requested particulars from Ms McEwan, and Ms McEwan has requested particulars from the State. It is necessary to deal with each in turn.
MS MCEWAN’S REQUEST OF THE COMMONWEALTH DEFENDANTS
Request 5(c)[15]
[15]Ms McEwan’s request for particulars is not numbered. For convenience I have used as headings Ms McEwan’s reference to the relevant paragraph of the statement of claim.
Ms McEwan asks for particulars as follows:
“When did the defendants first become aware the Brisbane Angels (BA) obtained information from the plaintiff for the purpose of pre-investment due diligence”.
That request refers to paragraph 5(c) of the statement of claim which pleads:
“(c) Ms McEwan gave, subject to confidentiality protections, all confidential information regarding the Therapeutic (Confidential Information) to the BA via its agent Mr Monaghan for the purposes of pre-investment due diligence”.
And so, Ms McEwan’s allegation is that she gave certain information to BA. That allegation is not admitted by the Commonwealth defendants. Curiously though, Ms McEwan seeks particulars of when each of the first to seventh defendants came to be aware of that communication.
There are numerous problems. The first is that the Commonwealth does not admit the fact of the communication. Thus, the request assumes that the Commonwealth concedes that there was such a communication between Ms McEwan. The Commonwealth does not admit that. The second is that it makes no sense for Ms McEwan to ask for particulars of a non-admission. The third is that what Ms McEwan seeks to do is to have the Commonwealth answer some questions about her own allegation. The evident purpose of the request seems to be to require the Commonwealth defendants to make admissions about when they first became aware of this communication by Ms McEwan to BA.
That is not a proper request for particulars.
In any event, it is difficult to see the relevance of Ms McEwan’s request. When the various defendants became aware of the communication hardly seems to matter. Perhaps Ms McEwan will contend that this is relevant to the element that the proceedings were instituted without reasonable and proper cause. That is not clear. Certainly, on a broad reading of the statement of claim it appears that this communication occurred sometime before August 2017 and yet the prosecution of the proceedings against Ms McEwan occurred the following year.
In any event, the request is not a proper request for particulars of the Commonwealth defence. It is a question designed to secure some evidence rather than particulars – and that evidence may or may not be relevant.
Request 5(e)
This request asks: “When did the defendants first become aware the Brisbane Angels valued the plaintiff’s confidential information relating to Carbstarver at $8,000,000, and the value under the terms of the Term Sheet was $4,000,000 (pre-money) which was discounted by 50%.” This is a similar request to Request 5(c). It asks for the defendant’s knowledge of the value attributed to confidential information by Brisbane Angels. That can hardly be relevant to the weighing exercise referred to above.
As with request 5(c), paragraph 5(e) is not admitted. That means that the non-admission is not susceptible to a request for particulars.
Request 5(f)
This is a request for “further particulars to paragraph 5 (f) (iii) business management plan:
a)when did the defendants first receive the Financial Models spreadsheet prepared by Mr Monaghan dated 10 November, 2016;
b)who provided the Financial Models spreadsheet to each of the defendants.”
Those requests are directed to a partially admitted allegation. The Commonwealth defendants admit the investor agreements. The point of the questions is therefore difficult to understand. Indeed, it may be that, for some of the defendants, the answer will be that the solicitors for the Commonwealth provided the documents to them in the course of the conduct of this case.
As with the previous requests, this request seeks evidence.
Request 10
Ms McEwan asks that the Commonwealth defendants provide further particulars of paragraph 10(a) of her pleading. It is necessary to set aside for the moment the problem that Ms McEwan is seeking particulars of an allegation in her own pleading, and the further problem that the allegation is denied.
The particular allegation, denied by the Commonwealth defendants, is that Mr Rains, an ATO employee, gave information to the BA parties that Ms McEwan had misappropriated the BA investment of $185,000 by using it to pay for her personal expenses. Ms McEwan asks: “who from the ATO gave information to the Brisbane Angels that the plaintiff had misappropriated the Brisbane Angels investment of $185,000 as particularised in the QP9 facts of the charge?”
That is plainly a matter of evidence. It may be that Ms McEwan says that this evidence is relevant to the third of the five elements of the cause of action, namely: proceedings were instituted without reasonable and probable cause. However, that is difficult to properly assess because, as explained, it is not clear at what point Ms McEwan says that the prosecution did not have reasonable and proper cause and, in any event, this is said to be a communication by the ATO to the BA.
Possibly the communication is said to be some evidence of malice but, again, that is unclear.
In any event, as mentioned, the request is for particulars of an allegation made by Ms McEwan herself. And it is a request for particulars of an allegation by Ms McEwan that is denied by the Commonwealth defendants. This is not a proper request for particulars.
Ms McEwan also asks:
a)“when did the first and second defendant's identify the plaintiff spent the Brisbane Angels investment of $185,000 on a personal loan and other expenses”; and
b)“how did the first and second defendants identify the plaintiff spent the Brisbane Angels investment of $185,000 on a personal loan and other expenses;”
c)“What documents did the first and second defendants have in their possession to verify the plaintiff spent the Brisbane Angels investment of $185,000 on a personal loan and other expenses.”
In those three questions, Ms McEwan attempts to attack the veracity of the information held by the Commonwealth defendants. When and how the defendants came to acquire the information is not strictly relevant to the weighing of the evidence exercise referred to above. However, the last of those questions, and a subsequent request by Ms McEwan, raise an issue concerning the particularity in the Commonwealth’s defence.
As explained, Ms McEwan’s allegation in paragraph 23 of her statement of claim is that the CDPP and the DPP:
a)did not have any evidence that could reasonably support the QPS charge; and
b)did have considerable evidence that exculpated Ms McEwan of the QPS charge and disclosed lines of defence that were plainly open to defeat the charge.
The defence of the Commonwealth defendants denies paragraph 23 without distinguishing between those two limbs of paragraph 23. Focussing for the moment on the first limb, the denial of the first limb of paragraph 23 leaves the Commonwealth defendants in the position where they have denied a negative allegation. That denial is, to use the language of McPherson JA in Bayliss v Cassidy (No 2)[16], a negative pregnant with an affirmative allegation. Particulars of such a traverse should be given where the real nature of the traverse is in doubt.[17]
[16][1998] QCA 38 reported at [2000] 1 Qd R 464.
[17]Johnston v Sewell [1962] QWN 36.
Here, by denying that the CDPP and the DPP did not have any evidence that could reasonably support the QPS charge, the Commonwealth defendants are, in reality, positively asserting that there was a body of evidence that reasonably supported the QPS charge. The double negative requires proper particulars.
As it turns out, the Commonwealth defendants have provided particulars of the evidence that it contends reasonably supports the QPS charge. Those particulars are set out under the heading ‘Particulars’ in paragraph 23. Those particulars are numbered (a) to (w). Those particulars properly identify the evidence that the Commonwealth defendants contend was available to the CDPP and the DPP and which reasonably supported the QPS charge.
Ms McEwan’s questions appear to delve further, inquiring as to when and how and by what documents the fraud was disclosed. In so far as Ms McEwan enquires further she is really seeking detail that comprises evidence rather than material facts.
The denial by the Commonwealth defendants of the second limb to paragraph 23 means that those defendants are contesting the allegation that they had ‘considerable evidence’ that exculpated Ms McEwan of the QPS charge. That is an allegation that they are entitled to deny. At trial the allegation may be proved or not proved. It is Ms McEwan who is required to identify what she contends is the ‘considerable evidence’ that exculpated her of the QPS charge and disclosed lines of defence that were plainly open to defeat the charge. Once that is done, the defendants will be required to plead to each aspect.
It is worth noting that one aspect of the management of this case that may assist the efficient conduct of the trial is the proper identification, in advance of the trial, of the evidence held by the CDPP and the DPP on the date or dates when Ms McEwan contends the institution or continuation of the proceeding was without reasonable and probable cause.
Request 11
In paragraph 11 of the statement of claim Ms McEwan alleges that in May 2018 the lawyer representing the BA parties, Ashley Hill of GRT Lawyers, arranged for the return of the Apagein Documents and the retaking of those documents by Mr Rains (the second defendant) on behalf of ATO by search warrant. The allegation seems peripheral. It does not appear to be a material fact which addresses any of the elements of the cause of action. It is even doubtful that the allegation, if true, demonstrates the fourth of the elements of the cause of action, namely that the proceedings were instituted maliciously.[18]
[18]The events are said to involve the issuing of a search warrant prior to the bringing of the charges. Those events occurred in April and June 2018. The charge seems to have been brought on 22 August 2018 but the BA QPS statements (which are alleged to be exculpatory) were taken in March 2019. Suffice it to say that how the search warrant events demonstrate malice is not clear.
The Commonwealth defendants deny the allegation. The explanation for the denial is that Mr Hill did not act as alleged, and Mr Rains did not ‘retake’ any documents as alleged. As to the second aspect, Ms McEwan asks for these particulars:
a)Why did the second defendant take the “Apagein Documents” without a warrant from the Brisbane Angels in April 2018?
b)Why did the second defendant “hand back” the documents to the Brisbane Angels on 6 June 2018?
c)Why did the second defendant retake via a warrant the “Apagein and other documents” on 6 June 2018 at the offices of GRT arranged between the second defendant and Ashley Hill, partner GRT.
As can be seen, those three questions are really challenges to the veracity of the denial by the Commonwealth defendants. A request that comprises a request for details of an explanation for a denial under UCPR 166(4) would not ordinarily be appropriate. The explanation for the denial does not create an issue of fact for determination at the trial and, accordingly, a request for production of documents pleaded as part of such an explanation or a request for particulars of such an explanation would ordinarily be refused. On the other hand, a party may plead an explanation for dual purposes, namely:
a)so as to comply with the requirement for an explanation under UCPR 166(4);
b)but also to rely on what is pleaded in the explanation to advance a positive case and to comply with the obligation under UCPR 149(1)(c) to plead facts which, if not stated specifically, might take another party by surprise.
If facts pleaded in an explanation are relied on for those dual purposes, then it is perfectly legitimate for an opponent to subject them to ordinary interlocutory scrutiny, including by requests for further particulars.[19] Here, however, there appears to be no ‘dual purpose’ to the explanation. The explanation does little more than say, in effect, the allegation is denied because those events did not occur as alleged in the statement of claim. It follows that this is not a proper request for particulars.
[19]Tri-Star Petroleum Company v Australia Pacific LNG Pty Limited [2017] QSC 136 at [25].
Request 16
Paragraph 16 of the statement of claim alleges that, as a result of BA’s fraud complaint, on 22 August 2018 the QPS charged Ms McEwan with one count of fraud. The Commonwealth defendants deny the allegation. However, the explanation for the denial contends that:
a)On 22 August 2018, Ms McEwan was charged by way of complaint and summons filed in the Magistrates Court with an offence which the Commonwealth defendants set out verbatim – but which in substance is a fraud offence;
b)On 10 December 2019, there was a committal in the Magistrates Court at which Ms McEwan was committed to stand trial in the District Court of Queensland;
c)On that occasion the Magistrate made certain statements which the Commonwealth defendants quote, including to the effect that Ms McEwan had a case to answer.
Ms McEwan asks three questions by way of requests for particulars, namely:
a)Why did the QP9 facts of the charge state the ATO investigation revealed Ms McEwan spent the Brisbane Angels investment of $185,000 on a personal loan and other expenses;
b)As per the QPS charge and particulars, how did the defendants verify the plaintiff spent the entire Brisbane Angels investment on a personal loan and other expenses and nothing on the weight loss project;
c)What investigations did the defendants undertake to verify that the plaintiff spent the entire Brisbane Angels investment of $185,000 on personal items.
The first problem is that none of those questions are really requests for particulars of the defence of the Commonwealth defendants. They are really attempts at cross-examination based on what Ms McEwan asserts in her statement of claim. The second problem is that that the questions are really directed at evidence rather than material facts. For example, the inquiry asking what investigations were undertaken by the Commonwealth defendants really seeks evidence of what Ms McEwan plainly contends was an inadequate investigation. Proof that the investigation was inadequate may be relevant evidence, but it is not directed to the material fact, namely whether the CDPP and the DPP persisted with the charges in circumstances there was no reasonable evidence supporting the charges or where the evidence was predominantly exculpatory. In other words, the real issue is not the level of the investigation but whether the proceedings were instituted, or pursued, without reasonable and probable cause.
It follows that these are not proper requests for particulars.
Request 22
Paragraph 22(c) of the statement of claim has two limbs. First, it is alleged that the BA QPS Statements made no allegations as to how the BA Investment was spent. Second, it is alleged that the BA QPS Statements failed to allege that the BA Investment was spent by Ms McEwan for her own personal use.
The Commonwealth defendants deny the allegation and, pursuant to UCPR 166(4), provide an explanation for that denial by asserting that the Second Mactaggart QPS Statement did, in fact, refer to how part of the BA Investment was spent.
In paragraph 23 of their defence, under the heading ‘The transactions on 28 December 2016 and following’ the Commonwealth defendants particularise the relevant transactions. At subparagraph (w) the Commonwealth defendants draw the following conclusions from the transactions:
a)It can be inferred that the plaintiff intended to transfer the funds received by Apagein Biotech to the Trembath Account, as the plaintiff’s transferred $200,000 from Account 1 (which comprised the entire $185,000 of the BAN Funds) to Account 2, and then to the Trembath Account.
b)On 28 December 2016, at least $72,500 of the sum transferred from Account 2 to the Trembath Account had to originate from the BAN Funds.
c)The Term Sheet did not permit Ms McEwan to pay herself consultancy fees and she knew the same.
d)The intermingling of funds from Account 1 to Account 2 and the use of such intermingled funds for expenses in the names of the plaintiff, the plaintiff’s family members, and Mr and Mrs Trembath, permits the reasonable inference that the funds were dishonestly applied for the plaintiff’s own use;
e)More than $30,000 of the BAN Funds were reasonable and probably dishonestly applied by the plaintiff for her own use, contrary to the Terms Sheet.
Ms McEwan makes three major requests for information. The first asks that the Commonwealth Defendants specify which part of the Second Mactaggart QPS Statement refers to how part of the BA Investment was spent.
It is true that the Commonwealth defendants plead a denial of Ms McEwan’s allegation that the BA QPS Statements made no allegations as to how the BA Investment was spent. However, the explanation for that denial asserts positively that that the Second Mactaggart QPS Statement did in fact refer to how part of the BA Investment was spent. That is, it seems to me, a dual-purpose explanation in that it is intended to comply with the requirement for an explanation under UCPR 166(4) but also to advance a positive case and to comply with the obligation under UCPR 149(1)(c) to plead facts which, if not stated specifically, might take another party by surprise.
The Commonwealth defendants ought to identify the part of the Second Mactaggart QPS Statement which refers to how part of the BA Investment was spent. It can hardly be an onerous burden for the Commonwealth defendants.
The second request is that the Commonwealth defendants particularise how Mr Mactaggart alleges the BA Investment was spent, and how much of the BA Investment remained and was not returned by the plaintiff. None of that arises out of the defence of the Commonwealth defendants. The only relevant detail for present purposes is the detail in the Second Mactaggart QPS Statement. It can hardly be a proper request for Ms McEwan to seek particulars of what the Commonwealth says now about what Mr Mactaggart alleges. The relevant detail is in the Second Mactaggart QPS Statement, which will presumably be part of the evidence at trial.
The third request is for the Commonwealth defendants to particularise what steps they took to verify the veracity of the Second Mactaggart QPS statement. This request is then broken down into a number of sub-requests. The problem, again, is that Ms McEwan’s request is not for particulars of any allegation made by the Commonwealth defendants in their defence. The Commonwealth defendants do not make any allegation about the veracity of the Second Mactaggart QPS Statement. Thus, what Ms McEwan seeks to do is to, in effect, cross-examine the Commonwealth defendants in advance of the trial. It also seems likely that the sub-requests are directed at requiring the Commonwealth defendants to answer questions about the content of the Second Mactaggart QPS Statement. That is not a proper request for particulars.
Request 23
Paragraph 23 of the statement of claim, discussed above, alleges that:
In the premises, neither the CDPP nor the DPP had any evidence that could reasonably support the QPS Charge but did have considerable evidence that exculpated Ms McEwan of the charge and disclosed lines of defence that was no case to answer on multiple occasions.
In response, in paragraph 23 of the defence, the Commonwealth defendants plead that “the Defendants deny the allegations and believe them to be untrue because:
(a)the available evidence reasonably supported the Charge and provided reasonable and probable cause for the Charge;
(b)the abovementioned evidence included the evidence contained in the brief of evidence for the Committal.” [emphasis added]
Ms McEwan requests particulars of the “available evidence” by way of documents and evidence contained in the prosecution brief of evidence which supported the charge and the QP9 facts of the charge.
Certainly, the Commonwealth defendants have provided 23 subparagraphs of particulars. However, a problem is that the particulars are open-ended. The chapeau to the particulars commences: “The evidence which provided reasonable and probable cause for the Charge (and which negate an absence of reasonable and probable cause for the Charge) included the following…” [emphasis added]. Paragraph 23(b) of the defence is similarly open-ended.
In this context, the use of the word “included” suggests that paragraph 23(b), and the particulars to paragraph 23, list only some of the available evidence that the Commonwealth defendants rely on. This use of the word ‘included’ in a pleading is rarely appropriate because it suggests further matters that are not pleaded in a context where one objective of pleading is to precisely identify what is alleged.[20] The use of the word in this context is especially problematic because the central issue in the proceeding is: what evidence did the CDPP and the DPP have that could reasonably support the QPS Charge?
[20]Ms McEwan’s statement of claim suffers from a similar problem which is addressed below.
Ms McEwan is entitled to proper particulars of paragraph 23(b). She is entitled to know what the Commonwealth defendants contend comprised the brief of evidence. She is also entitled to proper particulars of paragraph 23 in that the Commonwealth defendants ought to identify precisely what comprised the ‘available evidence’. However, it is preferable for the Commonwealth defendants to have leave to amend those paragraphs so as to delete the open-ended character of the pleading.
Ms McEwan also seeks particulars of some of the 23 individual particulars.
Particular (b) states:
“Pursuant to the Terms Sheet, the ‘Use of Funds’ was described as:
“The funds shall be used for the conduct of a clinical trial of the product, based upon the minimum terms in Appendix 1. Trials for registration of the product are to be conducted to achieve the status of a ‘Registered’ product or ‘Listed’ product, as defined by the Therapeutic Goods Act, to be determined by the Board. Any additional funds are to be used for the implementation of the agreed strategy for the development and growth of the Company.”
As to that particular, Ms McEwan requests the following particulars:
As acknowledged by Mr Monaghan $~$156,000 had been spent legitimately, what part of the remaining $18,000 was not spent for the clinical trial in accordance with the Term Sheet and investor agreements.
This is not a legitimate request for particulars. It is an attempt to cross-examine.
Particular (d) states:
“In early December 2016, before the BAN Funds were paid, it was agreed with the plaintiff that the business plan would be put aside until after a clinical trial was completed: Monaghan Statement dated 13 April 2018.”
Ms McEwan makes the following request of that particular:
a)What is the business plan what was “put aside until after a clinical trial was completed”?
b)What evidence was in the possession of the defendants that verified the “business plan” was put aside.
Request (a) is a proper request in that the ‘business plan’ that the Commonwealth defendants refer to should be properly identified. Presumably it is a written document. The document should be identified, and a copy should be provided to Ms McEwan pursuant to UCPR 222. Request (b), however, seeks evidence rather than any specifics of allegations made by the Commonwealth defendants.
Particular (e) states:
“Appendix A to the Term Sheet outlined the business plan for the first round of funding, which was to use the funds “to conduct a clinical trial and determine the TGA approval requirements, and enhance IP protection: Monaghan Statement dated 13 April 2018”.
Ms McEwan requests that following particulars:
a)When referring to the aforementioned 23(e) above “Use of Funds” when referencing against the “acquittal dated 16 August, 2017” emailed to the related to “conduct a clinical trial and determined TGA approval requirements, and enhance IP protection”.
b)Mr Monaghan’s statement dated 13 April, 2018 had accepted ~$156,000 (+10K company balance) was spent in accordance with the approved expenses of conducting a clinical trial, TGA approval requirements and enhancing IP protection.
(i)What part of the ~18,000 was not spent in accordance with the Term Sheet and investor agreements.
It is difficult to understand request (a). Both requests appear to ask for evidence rather than particulars.
Particular (g) states:
“At no time was authorisation given for the BAN Funds to be used for anything other than what was stated in the Terms Sheet: Mactaggart Statement signed on 21 March 2019 taken by Officer Holt.”
As to that allegation of a negative, that is that no authorisation was given, Ms McEwan requests the following particulars:
What part of the $185,000 was not used in accordance with the Term Sheet, shareholder’s agreement and business plan – Financial Models dated 10 November, 2016.
Again, the request does not arise out of the allegation by the Commonwealth defendants. The allegation is merely that there was no authorisation. Ms McEwan’s request asks a question designed to elicit evidence.
Particular (k) states:
“The payment of consultancy fees to the plaintiff was not approved at any Apagein Biotech board or investor meetings.”
Again, that is a negative allegation, namely that there was no approval. Ms McEwan requests that following particulars:
a)What documents were in possession of the defendants to verify the plaintiff was not authorised to be paid for her work and required to work for free.
b)On what basis the defendants held the lawful belief Mr Alan Monaghan was entitled to be paid, however the plaintiff was to work for free.
c)Referring to the Monaghan statement dated 13 April, 2018 acknowledging the plaintiff’s payments of $90,000, the statement made by the defendants is unreasonable.
The first two requests seem to be legitimate queries in the sense that it could hardly be assumed that Ms McEwan was obliged to work without being paid a reasonable fee for her services. However, the allegation by the Commonwealth defendants is merely that the payment of fees was not approved by any board or investor meetings. Ms McEwan is entitled to challenge the assumption as being false. However, I do not think that the allegation is susceptible to a request for particulars. The third request is really an assertion or comment rather than a proper request for particulars.
Particular (l) states:
“Until 16 August 2017, the plaintiff never informed BAN or any member of the Brisbane Angels that she was paying herself consultancy fees totalling $90,000.00 and neither BAN nor the Brisbane Angels were aware of that fact.”
In response to that negative allegation, Ms McEwan requests that following particulars:
a)What documents the defendants held to verify the BAN or the Brisbane Angels were not aware the plaintiff was being paid $90,000 consulting fees;
b)Referring to the Monaghan statement dated 13 April, 2018 acknowledge the plaintiff’s payments of $90,000, the statement made the defendants is unreasonable.
The first question seeks evidence. It requires the Commonwealth defendants to substantiate their allegation. The second question is really an assertion or a comment rather than a proper request for particulars.
Particulars (m) to (w) set out the transactions between the Apagein account and the Trembath account from 28 December 2016 onwards.
Ms McEwan requests the following particulars, with my comments in brackets:
a)The defendants in Particular (b) accepted the Monaghan statement dated 13 April, 2018 therefore what relevance is there for the defendants to list transfers of payments between accounts. (This is not a proper request for particulars of any part of the allegation – it is a challenge to the veracity of the defence.)
b)Explain how the transfer of funds constituted criminal fraud of $185,000. (This is not a proper request for particulars. Ms McEwan cannot seek explanations or legal advice from the other party.)
c)Explain the transfer of funds at law that constitutes criminal fraud as the dishonest application of money when the defendants had accepted the Monaghan statement that at least $156K worth of payments were legitimate company payments; and
(i)Explain on what reasonable basis the defendants charged and prosecuted the plaintiff for $185,000 for defrauding the Brisbane Angels.
(Again, these requests seek explanations, or evidence rather than particulars of any part of the allegations of the Commonwealth defendants).
Request 24
Paragraph 24 of the statement of claim alleges that Ms McEwan and her lawyers made submissions to the QPS, CDPP and DPP detailing the reasons and documents exculpating her of the QPS Charge. Some details of the submissions are given. Those details are labelled ‘Particulars’ but they appear to be allegations of instances where Ms McEwan or her lawyers made relevant submissions. In other words, the ‘Particulars’ appear to be material facts. That appears to be the view of the Commonwealth defendants because they have responded to each ‘particular’.[21] The Commonwealth defendants:
a)do not admit a conversation which Ms McEwan says occurred between her and Officer Holt;
b)admit the sending of the letters referred to in paragraph 24(b) and (c), namely a no-case submission by Sibley Lawyers to the CDPP dated 8 July 2019 and a no-case submission by Saul Holt SC to the CDPP dated 19 March 2020;
c)otherwise deny paragraph 24 and deny that there was no case to answer or exculpatory evidence.
[21]A party is not normally required to plead to particulars.
There are two rather odd effects of that part of the defence. The first is that all the Commonwealth defendants admit, in respect of the Sibley and Holt no-case submissions, is that those submissions were “sent”. There is no admission that those submissions were received. The receipt of the submissions was plainly part of Ms McEwan’s case because she alleges that she and her lawyers gave detailed advice and submissions to the QPS, CDPP and DPP. Probably the Commonwealth defendants did not intend to deny receipt, but that is the effect. It creates what is likely to be a false issue. The Commonwealth defendants ought to have leave to amend so as to clarify their pleading.
The second oddity is that the effect of the denial is to deny the sending and receipt of a letter from Jasper Fogerty Lawyers to the CDPP dated 28 August 2020. That is a curious denial. Contrary to UCPR 166(4), that denial is not accompanied by an explanation for the denial. It is surprising that the Commonwealth defendants do not plead positively to that allegation given that it must be easily ascertainable whether the Fogerty no-case submission was sent and received or not. The consequence of this unexplained denial is that there is a deemed admission. However, because the issue is relatively straight-forward, it is appropriate to give the Commonwealth defendants leave to amend paragraph 24. Of course, the Commonwealth defendants may choose to positively plead to paragraph 24 and the Fogerty no-case submission, or they may choose to provide an explanation in accordance with UCPR 166(4), or they may choose to do both. The objective, of course, is to properly identify the issues.
That problem with the defence is no doubt the reason why Ms McEwan requests that the Commonwealth defendants advise whether they received the Fogerty no-case submission (which she explains was drafted by Rebecca Forgerty). For the reasons explained, Ms McEwan makes a legitimate point which needs to be addressed by the Commonwealth defendants.
As explained, the Commonwealth defendants, at paragraph 24(c) of their defence, otherwise deny the allegations in paragraph 24 of the statement of claim that there was no case to answer or that documents exculpated the plaintiff and believe the allegation to be untrue for the reasons pleaded in paragraphs 16(b) and 23 of the Commonwealth defendants’ defence. Paragraph 16(b) refers to some remarks of Magistrate Previtera to the effect that she thought there was a case to answer. Paragraph 23, as explained, identifies the various evidence said to support the case.
Ms McEwan seeks the following particulars:
a)The evidence that caused the defendants to reject the no case submissions.
b)The defendants in paragraph 22 (b) accepted Monaghan’s statement dated 13 April, 2018 a figure of ~$156,000 was legitimate Apagein expenses made by the plaintiff. Therefore, how do the defendants make an allegation that the plaintiff dishonestly applied $185,000 of the Brisbane Angels investment for personal use; that is for a “personal loan and other expenses” (QP9).
It is true that the Commonwealth defendants’ denial of Ms McEwan’s allegation that there was no case to answer is in reality a positive case that there was a case to answer. However, proper particulars of that case have been provided in paragraph 23 of the defence, and perhaps also paragraph 16(b).
These two requests are not proper requests for particulars. They really seek evidence or seek to challenge the defence case.
Request 27
Paragraph 27 of the statement of claim states that “(t)he Commissioner instituted and continued the Prosecution.” Particulars are given. The Commonwealth defendants deny the allegation and say that they believe it to be untrue because:
a)The Commissioner was not personally involved in the prosecution of the plaintiff for the Charge, or at all;
b)The Commissioner did not institute or continue the prosecution of the plaintiff for the Charge, or at all;
c)The Commissioner was not actively instrumental in commencing the prosecution of the Charge, nor did the Commissioner virtually compel the Charge and
d)The Charge was laid by Officer Holt and not by the Commissioner.
In response to each of paragraphs 27(a) to (c) of the defence Ms McEwan questions “why the First Defendant is listed on the QP9 relating to an ATO investigation revealing the plaintiff spent the entire investment of $185,000 on personal items.” Of course, that is a challenge to the veracity of the allegation in the defence rather than a proper request for particulars.
Request 30
Paragraph 30 of the statement of claim, in a similar plea to paragraph 27, alleges that Mr Rains instituted and continued the Prosecution. The Commonwealth defendants deny the allegation and believe it to be untrue because:
a)Mr Rains did not institute or continue the prosecution of Ms McEwan for the Charge, or at all;
b)Mr Rains was not actively instrumental in commencing the prosecution of the Charge, nor did he virtually compel the Charge;
c)Mr Rains did not deliberately misconstrue or withhold evidence that exculpated Ms McEwan and thereby deceive the QPS; and
d)The Charge was laid by Officer Holt.
As to paragraph 30(b) of the defence Ms McEwan requests the following particulars:
a)Why did the Mr Rains obtain all the Apagein Documents from the Brisbane Angels in or about April 2018;
b)Why did Mr Rains execute a warrant on the Brisbane Angels;
c)Why did Mr Rains have direct dealings with Ashley Hill GRT lawyers for the Brisbane Angels;
d)Why did Mr Rains execute a warrant at the offices of GRT lawyers.
Those are all questions about the veracity of the defence. Ms McEwan seeks to, in effect, cross-examine the Commonwealth defendants in advance of the trial. They are not proper request for particulars of the defence.
As to paragraph 30(c) of the defence, Ms McEwan requests the following particulars:
a)Why is Commissioner listed on the QP9 relating to an ATO investigation revealing Ms McEwan spent the entire investment of $185,000 on personal items?
b)Mr Rains was the only ATO official who had dealings with the Brisbane Angels before the charge was laid on 22 August, 2018.
c)Who is the ATO official that provided information the Brisbane Angels that relates specifically to the QP9 facts of the charge?
The first of those requests is a challenge to the veracity of the defence. The second is a statement or a comment rather than a request for particulars. The third request is difficult to understand but seems to be a question about the evidence. None are proper requests for particulars.
As to paragraph 30(d) of the defence, Ms McEwan requests the following particulars: “Why did Mr Rains email Officer Holt on 1 February, 2019 instructing him to ‘summons the Trembaths’ in relation to the Brisbane Angels fraud complaint.” Again, that is a query about the veracity of the case of the Commonwealth defendants’ case, or it is an attempt to secure evidence.
Request 32
Paragraph 32 of the statement of claim pleads that Mr Rains instituted and continued the prosecution maliciously. Particular 32(b) of the statement of claim contends that Mr Rains altered a ‘key document’ showing that the BA Investment had been spent in accordance with the Acquittal by removing details exculpatory to the QPS Charge and then included it in the brief of evidence. The Commonwealth defendants deny all of the allegations in paragraph 32 of the statement of claim and the allegation of altering the document in particular. They say they believe the allegation to be untrue because Mr Rains did not act as particularised in paragraph 32(b).
There is therefore a contest. Ms McEwan alleges that Mr Rains altered a “key document”, and the Commonwealth defendants deny that allegation. At this point there is a problem. Ms McEwan has not specifically identified the ‘key document’ she says was altered. Nor does she specifically identify the alteration she says Mr Rains made to that document. In fact, as will be seen when I come to the Commonwealth defendants’ request for particulars of the statement of claim, the Commonwealth defendants request those particulars.
In any event, Ms McEwan’s request for particulars appears to identify the document she says was altered. Ms McEwan seeks the following particulars:
a)Why did Mr Rains materially change Ms McEwan’s company acquittal spreadsheet by changing the layout? This document was placed into the brief of evidence as exhibit VENIK00267.
b)Why did Mr Rains materially change the original acquittal spreadsheet renaming the acquittal to VENIK00267 by:
(i)Deleting notes “*Jve consulting as agreed by in the business plan”.
(ii)deleting “*all costs were agreed by the board”.
No doubt Ms McEwan can and will supply particulars identifying that the ‘key document’ is Ms McEwan’s company acquittal spreadsheet (which subsequently became exhibit VENIK00267) and she will identify the alterations to that document as those set out in paragraph (b) above. On that basis, it seems to me that the Commonwealth defendants ought to positively plead to the allegations that Mr Rains altered the spreadsheet and that he made the alterations alleged above.
Thus, the actual requests for particulars made by Ms McEwan are not proper requests for particulars. Those requests commence with the word ‘why’ which, in this context, makes it plain that Ms McEwan is seeking an explanation for the alterations, that is she is seeking evidence. However, it seems to me that the Commonwealth defendants ought to supply particulars as to whether Mr Rains did in fact alter the spreadsheet, and, if he did, whether he altered the spreadsheet in the manner alleged by Ms McEwan above.
Request 34
Paragraph 34 of the statement of claim alleges that the Commonwealth Director of Public Prosecution (the ‘Director’) continued the Prosecution by acting as the prosecutor of the QPS Charge at various stages. The Commonwealth defendants deny the allegations and say that they believe them to be untrue because the Director was not personally actively instrumental in commencing or continuing the prosecution of the Charge.
Ms McEwan requests the following particulars:
a)Explain why and how the Commonwealth Director of Public Prosecution claims she was not personally actively instrumental in commencing and continuing the prosecution of the charge when:
(i)The Commonwealth Director of Public Prosecution is the Director;
(ii)Obtained three no case submissions as set out in paragraph 24 of the Third Revised statement of claim;
(iii)Authorised Roberta Devereaux to reject the three no case submissions as referred to in paragraph 24 of the Revised statement of claim.
(iv)Was emailed many times over six months by Ms McEwan personally drawing her attention the material facts of the charge.
(v)Received from Ms McEwan many emails of requests to provide exculpatory evidence relating to the QP9 facts of the charge.
(vi)Received from the plaintiff many emails of explanation of how the $185,000 had been acquitted in accordance with the Brisbane Angels investor agreements.
(vii)Authorised Ms Roberta Devereaux to change the victim from the Brisbane Angels to the Plaintiff’s company “Apagein”.
None of those requests are proper requests for particulars. They seek to interrogate the Commonwealth defendants.
Request 36
Paragraph 36 of the statement of claim alleges that the Director continued the Prosecution maliciously. The Commonwealth defendants deny the allegations. They also plead that, to the extent that the Director is found to have acted, or omitted to act, in connection with the prosecution of Ms McEwan (which is denied), then:
a)any such act or omission was done in good faith by the Director in the performance or exercise, or purported performance or exercise, of a function, duty, or power under or in relation to the Director of Public Prosecutions Act 1983 (Cth) (the DPP Act); and
b)in the premises, pursuant to s 32A of the DPP Act, no civil action, suit, or proceeding lies against the Director.
Ms McEwan requests the following particulars:
a)Explain why the Director is protected by immunity pursuant to s 32A of the DPP Act when:
(i)The Director prosecuted Ms McEwan in the absence of reasonable cause;
(ii)The Director had in her possession three no case submissions exculpating the fraud charge;
(iii)The Director had in her possession the Brisbane Angels investor agreements “Apageain Documents” which included the Shareholder agreement, Term Sheet, Financial Models 10 Nov 2016, acquittal dated 16 August, 2017 listing the payees, bank statement and Monaghan statement dated 13 April 2018, documents that defeated the fraud charge of $185,000.
(iv)Explain why the Director withheld disclosure from Ms McEwan and the court specifically relating to the charge and QP9 charge particulars, even though personal requests were made by Ms McEwan directly to the Director to disclose.
(v)Explain why such conduct as described in the forementioned paragraphs and subparagraphs constitutes “good faith and without negligence”.
Ms McEwan’s third complaint is the standard ‘no substantiation’ objection. No particulars are required of this paragraph of the defence.
Request 30
Paragraph 62 of the statement of claim pleads that the Queensland Director continued the prosecution maliciously. The State denies the allegation. The explanation for the denial is that the prosecution was not pursued maliciously and was pursued in circumstances where there was prima facie evidence of an offence.
Ms McEwan complains that the State provides no particulars of why the prosecution was not malicious. The State is not obliged to do so. It is for Ms McEwan to prove malice. The State’s explanation that the prosecution was not pursued maliciously is sufficient in the circumstances. The plea of malice is a plea of a state of mind and so the reasons for the defendant’s belief that the allegation is untrue will often require little exposition beyond a statement that there was no malice.
Ms McEwan also makes the standard ‘no substantiation’ objection. No particulars are required.
Request 31
Paragraph 63 of the statement of claim pleads that the DPP, by continuing the prosecution despite his knowledge of the lack of incriminating facts and presence of exculpatory facts did not act bona fide for the purposes of any Act, including the DPP Act, and without negligence. The State denies the allegation.
Ms McEwan’s complaints are that the DPP provides no support as to how the prosecution by the DPP was done in good faith and without negligence, and that particulars are required. In my view, no particulars are required of the State’s denial. And the explanation for the denial is sufficient.
Request 32
Paragraph 64(d) of the statement of claim pleads that the State was the employer of Ms McGregor and is liable for acts done for or on behalf of Ms McGregor acting in that role. The State admits that it was Ms McGregor’s employer but deny liability by reason of the statutory effect of s 25 of the Director of Public Prosecutions Act 1984 (Qld).
Ms McEwan’s first complaint is that the State “provides no particulars as to how her conduct constitutes good faith and without negligence, conduct that is consistent within the provisions of s25 of the DPP Act.” That complaint appears to assume that the DPP Act contains an excuse provision conditioned on good faith and an absence of negligence. That is not the case. Section 25 of the DPP Act is in these terms:
No act or thing done or omission made by the Minister, the director or any person assisting the director for the purpose of giving effect to this Act or discharging, exercising or performing any function, power, authority or duty under this Act shall subject the Crown, the Minister, the director or any person to liability at law in respect thereof.
Thus, the section does not require good faith and an absence of negligence. The request appears to proceed on a false basis.
There is, however, a problem with the State’s plea, although not a major problem. If the State relies on s 25 of the DPP Act as a basis for saying that the State cannot be liable for the actions or omissions of Ms McGregor, then it is necessary for the State to:
a)identify the relevant acts or omissions of Ms McGregor; and
b)identify how those acts or omissions were “for the purpose of giving effect to this Act or discharging, exercising or performing any function, power, authority or duty under this Act”.
The State should have leave to amend so as to deal with the problem that the immunity in s 25 is relied on, but no facts are pleaded to bring the conduct within the immunity.
Ms McEwan also makes the standard ‘no substantiation’ objection. No particulars are required.
Request 33
Paragraph 66 of the statement of claim pleads that Ms McGregor acted without reasonable and probable cause. The State denies the allegation and gives the same explanation as for Request 29 regarding the DPP. Ms McEwan’s complaints are the same and the answers to those complaints are also the same.
Request 34
This request is the same as request 30 above. Request 30 was in respect of the DPP. This request relates to Ms McGregor. For the same reasons no particulars are required.
Request 35
This request is the equivalent of request 32. The same reasoning applies here.
Request 36
Paragraph 69 of the statement of claim pleads that:
Further or in the alternative to the malicious prosecution carried out by the defendants as pleaded herein, the defendants demonstrated by their action’s [sic] misfeasance in public office.
The allegation is denied. Ms McEwan’s complaint is the standard ‘no substantiation’ objection. The plea is a general one, as is the response, with the detail provided elsewhere in the parties’ respective pleadings. No particulars are required.
Request 37
Paragraph 105 of the statement of claim pleads that Officer Holt undertook an invalid or unauthorised act, namely laying the charge and the prosecution of Ms McEwan without reasonable and probable cause and paragraph 56[43] is repeated and relied on. The State denies the allegation and provides an explanation that Officer Holt did not undertake an invalid or unauthorised act and brought the charge in circumstances where there was reasonable and proper cause.
[43]The actual reference is to paragraph 55 but the likelihood, as the State’s defence points out, is that the intended cross-reference is to paragraph 56.
Ms McEwan makes the standard ‘no substantiation’ objection. No particulars are required.
Request 38
Paragraph 106 of the statement of claim alleges that Officer Holt acted maliciously and relies on paragraphs 57 and 58.[44] The State denies the allegation and the explanation is that Officer Holt did not act maliciously and did not bring the charge for an unlawful or improper purpose.
[44]The actual cross-reference is to paragraphs 56 and 57 but it is assumed the intended reference is to 57 and 58.
As with some of the previous requests, the allegation by Ms McEwan is of malice, a state of mind. A party who alleges malice must plead, properly particularise and prove the allegation. Ms McEwan has those obligations. It is Ms McEwan who must substantiate the pleading of malice. The State is entitled to deny the allegation. It has no obligation to substantiate or provide particulars of its denial. And, given the allegation made it is appropriate for the State to explain its denial by saying, in effect, ‘we deny any malice’. Here, of course, the State has gone a little further.
Again, Ms McEwan makes the standard ‘no substantiation’ objection. No particulars are required.
Request 39
Paragraph 109 of the statement of claim pleads that the actions of Officer Holt caused loss and harm to Ms McEwan with reckless indifference to the likely injury. Paragraph 55 of the defence:
a)denies that Officer Holt acted with reckless indifference because he acted appropriately and only brought the charge once he was satisfied there was prima facie evidence of an offence;
b)otherwise, the State does not admit the allegations.
The standard ‘no substantiation’ objection is raised but there is no reason to order particulars of paragraph 55 of the defence.
Request 40
Paragraph 110 of the statement of claim pleads that the DPP undertook an invalid or unauthorised act, namely the prosecution of Ms McEwan without reasonable and probable cause and in dereliction of the Director’s Guidelines including but not limited to the lack of sufficient evidence.[45] The defence denies the allegations on the basis that there was reasonable and probable cause. The defence also raise the fact that Magistrate Previtera was satisfied the evidence was sufficient to warrant committal.
[45]Note that the use of the phrase “the lack of sufficient evidence” suggests that Ms McEwan’s case is not the stark case pleaded in paragraph 23 of the statement of claim.
The standard ‘no substantiation’ objection is raised. There is no basis to order particulars.
However, Ms McEwan’s use of the open-ended phrase “including but not limited to” is inappropriate for the reasons explained above. Ms McEwan should have leave to amend so as to confine the pleading.
Request 41
Paragraph 111 of the statement of claim pleads that the DPP acted maliciously. This is the equivalent of request 38 (in respect of Officer Holt). For the same reason no particulars should be ordered.
Request 42
Paragraph 114 of the statement of claim pleads that the actions of the DPP caused loss and harm to Ms McEwan with reckless indifference to the likely injury. The allegation is denied in paragraph 60 of the defence.[46] This request is the equivalent of request 39 and should be refused for the same reasons.
[46]The terms of the defence are similar to paragraph 55 of the defence
Request 43
Paragraph 115 of the statement of claim is a carbon copy of paragraph 110 of the statement of claim – except that it deals with the conduct of Ms McGregor rather than the DPP. The defence is similar except that it refers to Ms McGregor’s conduct in appropriately pursuing the charge up to the committal.
The request, another standard ‘no substantiation’ objection should be refused for the same reasons.
Request 44
Paragraph 116 of the statement of claim is a carbon copy of paragraph 111 of the statement of claim (i.e. malice is alleged) – except that it deals with the conduct of Ms McGregor rather than the DPP. The defence is similar. For the same reasons there is no basis for ordering particulars.
Request 45
Paragraph 119 of the statement of claim is similar to paragraph 114 (Request 42). The defence is the same and, for the same reasons, the request should be refused.
CONCLUSIONS
It follows that the pleadings and particulars need some attention. The best way to achieve that is to give the parties leave to amend their pleadings in the respects identified above and to direct that certain particulars be supplied. For the particulars ordered, it will assist the clarity of the case for those particulars to be supplied as part of an amended pleading. And, of course, it makes sense that Ms McEwan amend before the defendants respond.
Orders and directions will be made as stated above.
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