McEwan v Commissioner of Taxation [2025] QCA 48

SUPREME COURT OF QUEENSLAND

CITATION: McEwan v Commissioner of Taxation [2025] QCA 48

PARTIES: JULIE MCEWAN / (appellant) / v / COMMISSIONER OF TAXATION / (first respondent) / ANTHONY RAINS / (second respondent) / COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS / (third respondent) / ROMAN MICAIRAN / (fourth respondent) / KATIE LUKIN / (fifth respondent) / JESSICA WILLIAMS / (sixth respondent) / ROBERTA DEVEREAUX / (seventh respondent) / DIRECTOR OF PUBLIC PROSECUTIONS / (eighth respondent) / EMILY MCGREGOR / (ninth respondent) / THE STATE OF QUEENSLAND / (tenth respondent)

FILE NO/S: Appeal No 15934 of 2024 / SC No 971 of 2022

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane – [2024] QSC 252 (Freeburn J)

DELIVERED ON: 11 April 2025

DELIVERED AT: Brisbane

HEARING DATE: 17 March 2025

JUDGES: Bond and Boddice JJA and Gotterson AJA

ORDER: Appeal dismissed. The appellant is to pay the respondents’ costs of the appeal on the standard basis.

CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – GENERALLY – where the decision concerned practice and procedure in an interlocutory context – where the trial dates had been vacated – where the appellant previously unsuccessfully sought to amend a statement of claim without leave – where the appellant wrongly relied on r 378 of the Uniform Civil Procedure Rules 1999 (Qld) to support the filing of amended pleadings without leave – where the exercise of judicial discretion called for a particular exercise of appellate restraint – whether the appellant required leave of the court to amend her pleadings under r 470 of the Uniform Civil Procedure Rules 1999 (Qld) / Uniform Civil Procedure Rules 1999 (Qld), r 378, r 470

COUNSEL: The appellant appeared on her own behalf / M McKechnie, with K Boomer, for the Commonwealth respondents / D M Favell for the State respondents

SOLICITORS: The appellant appeared on her own behalf / Australian Government Solicitor for the Commonwealth respondents / Crown Law for the State respondents

1. BOND JA: I agree with the reasons for judgment of Gotterson AJA and with the orders proposed by his Honour.

2. BODDICE JA: I agree with Gotterson AJA.

3. GOTTERSON AJA: The appellant, Julie McEwan, commenced proceedings in the Supreme Court of Queensland on 21 January 2022 for malicious prosecution and misfeasance in public office against 10 defendants, the first seven of which are Commonwealth Government entities or their employees, and the remaining three are State Government related. They are the respondents to this appeal. On 3 November 2022, the proceedings were placed on the Supervised Case List for Self-Represented Litigants (“SRL”).

4. Justice Freeburn who has managed the proceedings towards trial, has described the background to the appellant’s claims in the following terms:¹

“A broad collection of entities, called Brisbane Angels, 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.”

5. In the course of managing the proceedings, Justice Freeburn made directions and resolved a number of interlocutory disputes. By April 2024, the parties had filed and served trial affidavits as directed. His Honour then set the matter down for a two-week trial to commence on 8 July 2024. On 10 June 2024, the trial dates were vacated due to “problems with the proceeding”.²

6. Also, on 10 June 2024, the appellant intimated that she proposed to further amend her statement of claim and to rely on a further affidavit by way of evidence-in-chief. She notified the parties of the then most recent version of her statement of claim on 8 July 2024. Then, at a review on 28 August 2024, the appellant indicated that she sought to rely on a further amended statement of claim which she had emailed to Justice Freeburn’s associate and to the parties’ legal representatives on 25 August 2024. On 28 August 2024, his Honour made an order in effect deeming the appellant to have made an application for leave to file and serve the revised statement of claim emailed on 25 August 2024.³

7. To complicate matters, in a series of emails, on the day following, 26 August 2024, the appellant delivered a further revised statement of claim.⁴ It is essentially the same as that emailed on the previous day.⁵

8. The appellant purported to exhibit the 26 August version of the statement of claim to an affidavit sworn by her and filed on 13 September 2024. The exhibit, JM-5, was, in fact, a yet further revised statement of claim (“the 13 September Version”) which differs in significant respects from the 26 August Version.

9. On 25 August 2024, the appellant filed and served an affidavit which she had sworn on 23 August 2024. The affidavit itself is 66 pages in length and, with exhibits, is slightly less than 1000 pages long. It is the proposed further affidavit on which the appellant intimated she would seek leave to rely.

10. The fates of the amendments to the statement of claim and the further affidavit were determined on the papers with a brief oral hearing on 25 September 2024. It was evident that the appellant was, in substance, seeking to rely on the 13 September Version of the amended statement of claim, notwithstanding that the respondents had not made submissions with respect to it.

11. In Reasons published on 25 October 2024, Justice Freeburn adopted the amendments proposed in the 26 August Version as the subject of the appellant’s application for leave to amend. His Honour permitted certain of them, but refused many others. The application for leave to rely on the affidavit sworn on 23 August 2024 was refused. Submissions on costs were heard on 4 November 2024 and on 21 November 2024, his Honour ordered the appellant to pay 75 percent of the respondents’ costs of the applications.

Notice of Appeal

13. On 21 November 2024, the appellant filed a notice of appeal⁸ and an amended notice of appeal on 16 January 2025.⁹ The appellant filed a yet further amended notice of appeal on 17 March 2025. At the hearing of the appeal that day, she sought leave to amend her notice of appeal in accordance with the latter document. Leave was granted with the exception of a proposed paragraph 2.10.¹⁰

The nature of the decision under appeal

14. Before turning to the grounds of appeal, I note that the decision of Justice Freeburn concerned practice and procedure in an interlocutory context. Moreover, it was discretionary in nature. The principles relevant to appellate review of such a decision were summarised by Bond JA (with whom Fraser JA and Wilson J agreed) in Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd¹¹ as follows:

“[11] The determination of appeals from an exercise of judicial discretion call for a particular exercise of appellate restraint. Thus, in order to persuade an appellate court to overturn an exercise of a discretionary judgment by a judicial officer, an appellant must demonstrate the kind of error identified in House v The King (1936) 55 CLR 499 at 504–505, namely:

acting upon a wrong principle;

allowing extraneous or irrelevant matters to guide or affect the exercise of the discretion;

mistaking the facts;

failing to take account some material consideration; or

reaching a result which, upon the facts is so unreasonable or plainly unjust that the appellate court may infer error, even if the Court cannot identify it precisely.

[12] The determination of appeals from an exercise of judicial discretion in an interlocutory decision concerning questions of practice and procedure call for an even greater exercise of appellate restraint. Authority at the highest level,¹² approves the observations of Sir Frederick Jordan in In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 322-323 (footnotes omitted):

‘… it is only in the most exceptional circumstances that a Court of Appeal could regard itself as justified in interfering with the exercise of a discretion by a judge of first instance – only where he has misapplied the law, or his order is likely to lead to a miscarriage of justice: Evans v Bartlam. In this connection, however, I am of opinion that, as was pointed out by this Court in In re Ryan, there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. But an appeal from an exercise of a so-called discretion which is determinative of legal rights stands in a somewhat different position. In this class of case, too, a Court of Appeal submits itself to self-imposed restraints, but restraints which, though strict, are somewhat less stringent than those adopted in matters of practice or procedure.’

[13] In appeals from an exercise of judicial discretion in an interlocutory decision concerning questions of practice and procedure, although there is no absolute rule and each case must be considered in light of its own particular circumstances, generally an appellate court will not interfere unless, in addition to error of principle, the appellant demonstrates that the order will work a substantial injustice to one of the parties: see Just GI Pty Ltd v Pig Improvement Co Aust Pty Ltd [2001] QCA 48 at [14] per Williams JA (with whom Davies JA and Mullins J agreed) and Santos Limited v Fluor Australia Pty Ltd [2020] QCA 254 at [29].

[14] The present appeal is an appeal from an exercise of judicial discretion in an interlocutory decision concerning questions of practice and procedure and calls for an exercise of appellate restraint in accordance with the above principles: Specialised Explosives Blasting & Training Pty Ltd v Huddy’s Plant Hire Pty Ltd [2010] 2 Qd R 85 at 99-100 [56] to [57] per Muir JA (with whom Holmes JA and Philippides J agreed); Robson v Robson [2010] QCA 330 at [19] per Muir JA (with whom Chesterman JA and Philippides J agreed); and Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114 at [23] to [24] per Margaret Wilson AJA (with whom McMurdo P and Applegarth J agreed).”

15. In the earlier decision of this Court in Aimtek Pty Ltd v Flightship Ground Effect Pte Ltd,¹³ an appeal was brought against a refusal by a judge who was managing the case, to strike out certain paragraphs in a pleading. Fraser JA (with whom Holmes and Morrison JJA agreed), also citing the High Court decision in Adam P Brown Male Fashions, said to similar effect:

“This appeal involves only procedural questions. The settled rule is that the Court should exercise restraint and be reluctant to interfere with interlocutory decisions which do not determine substantive questions but are concerned only with practice and procedure. That rule plainly should be applied in this case, where the primary judge was managing the proceeding in the Trial Division with a view to expediting a trial. The primary judge was therefore well placed to determine the appropriate procedural response to any defect in the respondent’s pleading. It is also relevant to mention that the appeal record includes a further amended answer in which two of the impugned paragraphs have been amended, including by substituting denials for nonadmissions; in those respects the appeal appears now to involve only hypothetical questions.”

(Footnote omitted).

The grounds of appeal

16. The amended notice of appeal lists nine grounds of appeal. They are apt to be grouped into categories. I would respectfully adopt the grouping proposed by the first to seventh respondents along the following lines:Alleged errors relating to whether the appellant could amend her pleadings as a matter of right (grounds 2.1 and 2.1.1) - the Leave Grounds;An alleged failure to consider the amended statement of claim filed on 13 September 2024 (ground 2.6) – the 13 September 2024 Version Ground; Alleged failures to give reasons (grounds 2.2 and 2.3) – the Reasons Grounds; Alleged inconsistencies within the reasons and between these reasons and those given by Justice Freeburn with respect to the proceedings on previous occasions (grounds 2.4 and 2.5) – the Inconsistency Grounds; Grounds relating to refusal of leave to file supplementary evidence-in-chief (grounds 2.7 and 2.8) – the Evidence Grounds; andA broad allegation regarding prejudice or injustice (ground 2.9) – the Prejudice Ground.

17. As stated in the amended notice of appeal, the grounds do not reveal an appreciation of the task that confronts the appellant in seeking to have set aside interlocutory orders of a discretionary nature on matters of practice and procedure in a proceeding on the SRL. In general, they do not articulate alleged errors of legal principle or consequential substantial injustice to the appellant. An exception is the Leave Grounds to which I now turn.

Leave Grounds

18. Rule 470 of the Uniform Civil Procedure Rules (Qld) (“UCPR”) applies to a proceeding if a request for a trial date has been filed or a trial date has been set without such a request having been filed.¹⁴ Pursuant to r 470(2), a party may amend a pleading in a proceeding to which the rule applies only with the court’s leave. Thus, r 470 applied to this proceeding upon its having been set down for trial in July 2024.

19. The appellant contends that leave was not necessary to amend her statement of claim once the trial dates have been vacated. She was therefore entitled, pursuant to r 378, to amend in accordance with the 13 September 2024 Version without leave.

20. Justice Freeburn did not accept the appellant’s contention.¹⁵ I consider that his Honour was correct to do so. In the first place, there is no express provision in r 470 displacing its application in the event that trial dates are vacated.

21. Nor need r 470 be construed or applied as if it was displaced in such a circumstance, pursuant to r 5 UCPR to which the appellant frequently referred in submissions. To permit a party such as the appellant to amend the statement of claim without leave in a proceeding on the SRL at a very advanced stage would not facilitate the just and expeditious resolution of the real issues in the proceeding.

22. Furthermore, in The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd,¹⁶ Keane JA commended the view that where a proceeding was being case-managed and had been allocated a trial date by the supervising judge, then any proposal to amend a pleading was a matter to be dealt with by the court.¹⁷ This view was implicitly endorsed by Flanagan JA in Monto Coal Pty Ltd v Sanrus Pty Ltd as trustee of the QC Trust & Ors.¹⁸

23. In any event, the respondents opposed most, if not all, of the amendments. Had the appellant not required leave to amend, they would most likely have applied under r 379 for disallowance of the amendments which they opposed. In such circumstances, the case managing Judge would have been required to adjudicate upon the amendments in a way similar to an adjudication upon a leave application.

24. For completeness, I note that the appellant does not challenge the adoption by Justice Freeburn of the High Court authority of for determining whether the amendments to her statement of claim should be permitted. His Honour relied on the 12 principle summary of provided by Applegarth J in .

13 September 2024 Version Ground

25. The appellant contends that Justice Freeburn erred in not identifying the correct pleading on which she intended to rely. Hence, his Honour failed in not adopting the 13 September 2024 Version of the amended statement of claim as the subject of the application for leave to amend.

26. The contention is erroneous. In the first place, Justice Freeburn was well aware of the appellant’s desire to rely on the 13 September Version. However, his Honour considered that, as a matter of procedural fairness, he ought not consider it, given that the appellant had not notified the respondents of an intention to seek leave to file and serve it and that the respondents had not had the opportunity to make submissions with respect to it.²¹

27. Justice Freeburn therefore adopted the 26 August Version as the subject of the leave application. It was plainly correct for him to have done so. No error of principle is shown. Moreover, no substantial injustice has resulted. As his Honour noted, it remains open to the appellant to apply for leave to amend in accordance with the 13 September Version and to the respondents to be heard on it.²²

Reasons Grounds

28. These grounds contend that Justice Freeburn did not provide adequate reasons for disallowing proposed amendments and that, in certain instances, his Honour’s line of reasoning lacked coherency. Those instances are typified by the proposed paragraphs 6.1, 15.1, 15.2, 16.1 and 21.1 of the 26 August Version to which the appellant referred in oral submissions.

29. Having referred to the principles summarised by Applegarth J from Aon, Justice Freeburn adverted to the potential for pleading amendments to prejudice trial preparation²³ and case management considerations.²⁴ His Honour regarded the nature of the proposed amendments as important. He noted that if the proposed amendments were poorly expressed, or extended the factual enquiry or caused prejudice, that would be a factor against the grant of leave.²⁵

30. Justice Freeburn summarised the objections taken by the respondents to the proposed amendments on grounds including irrelevance, confusion, lack of particularity and conversion of particulars into allegations.²⁶ Thereafter, his Honour engaged in an extensive consideration of the proposed amendments in sequence over some 80 paragraphs.²⁷ The approach adopted by Justice Freeburn throughout was to consider whether the amendment advanced the appellant’s case by reference to elements of the malicious prosecution cause of action pleaded and the issues to be determined in the proceeding; and whether there was any prejudice to the parties or the administration of justice in allowing them.

31. Justice Freeburn granted leave to amend for amendments to which the respondents did not object. Where objection was taken, his Honour granted leave for those that he considered were potentially relevant and not otherwise objectionable. Broadly speaking, his Honour refused leave where the amendments did not serve to advance the appellant’s case because, as pleaded, they did not do so on account of their irrelevance or repetitiveness. Leave was also refused where the amendments were vague, difficult to follow or lacking in specificity.

32. I would accept that, in some instances, Justice Freeburn did not deal with every argument raised by the appellant in support of an amendment. However, the obligation on his Honour to give reasons did not require him to do so. It sufficed that the essential grounds on which the decision to disallow the amendment was based were articulated.

Inconsistency Grounds

38. The appellant contends that there are inconsistencies at two levels in the orders made and reasons published by Justice Freeburn. The first is in relation to orders made on 25 October 2024. The second concerns aspects of the reasons published on that date compared with reasons published earlier in McEwan v Commissioner of Taxation [2022] QSC 279.

39. As to the first, the alleged inconsistency is that by Order 2(c) made on 25 October 2024, Justice Freeburn allowed the proposed paragraph 30.1(c) notwithstanding that that paragraph is cross-referenced to the proposed paragraphs 15.2, 16.1 and 21.1, all of which his Honour disallowed. I would accept that consistency requires that the references to those paragraphs in paragraph 30.1(c) be deleted. It is by apparent inadvertence that they were overlooked in this instance. Indeed, his Honour specifically noted in the course of rejecting the proposed paragraph 23, that it contained cross-referencing to paragraphs 15.2, 16.1 and 21.1 which, he said, “cannot be accepted”.³⁰

40. This inconsistency is not a matter that is appropriately addressed by way of appeal to this Court. It falls to be raised with Justice Freeburn so that his Honour can vary the order with respect to 30.1(c) as he considers fit.

41. The second asserted inconsistency is said to relate to defects identified by Justice Freeburn in a prior judgment concerning earlier versions of the appellant’s pleadings. However, the appellant has not developed the assertion by identifying which aspects of his Honour’s Reasons in the judgment under appeal are inconsistent with the reasoning in the judgment given in 2022. The appellant has not identified those paragraphs in the Reasons which she has in mind as revealing inconsistency nor explained why it is that there is inconsistency.

42. In these circumstances, the Inconsistency Grounds also, are not viable grounds of appeal.

Evidence Grounds

43. Grounds 2.7 and 2.8 in the amended notice of appeal both concern the affidavit sworn by the appellant on 23 August 2024. That affidavit arose in the following circumstances. To progress the proceeding towards trial, Justice Freeburn directed the parties to file and serve trial affidavits. In response to that direction, on 27 November 2023, the appellant filed an affidavit that she had sworn by way of evidence in chief. Since filing and serving that affidavit, the appellant had unsuccessfully sought to rely on some 25 further affidavits by way of evidence in chief and some further consolidated affidavits.³¹ In particular, leave had been refused in respect of a further affidavit sworn by the appellant as evidence in chief containing 584 paragraphs over 81 pages of text.³²

44. It was in these circumstances that the appellant sought leave to file and serve the affidavit she had sworn on 23 August 2024. It will be recalled that it is 66 pages in length and, with exhibits, slightly less than 1000 pages long.

45. Justice Freeburn identified three characteristics in the affidavit which, in his Honour’s view, justified refusal of leave to file and serve it. First, it contains irrelevant matters. Secondly, it deals with matters as to which the appellant could not give evidence. Thirdly, it includes submissions.³³ Rather than supplementing evidence in chief that the appellant had already placed on the record, this affidavit was a means by which she, to adopt his Honour’s description, “seeks to essentially reconstruct, from scratch, her evidence in chief in its entirety, while also bringing in new matters that could be potential hotspots of dispute”.³⁴

46. Having regard to these features of the affidavit, the decision of Justice Freeburn to refuse leave to file and serve it is, with respect, both logical and sensible. It is unsurprising that the appellant has failed to identify any error of legal principle in the decision.

47. These grounds of appeal must also fail. It, of course, remains open to the appellant to seek leave from Justice Freeburn to rely on further evidence in chief that is focused on specific factual matters and is in admissible form.

The Prejudice Ground

48. This ground contends that the decision of Justice Freeburn has caused injustice and is prejudicial. In substance, it is conclusionary in that it impliedly asserts that, by reason of the grounds which precede it, justice has not been accorded to the appellant and that she has thereby been prejudiced.

49. However, in circumstances where the appellant has failed to establish any error of legal principle on his Honour’s part, the assertion of injustice cannot be sustained. Likewise, for prejudice. This is especially so where his Honour found that the disallowed amendments and further affidavit evidence did not advance the appellant’s case.

50. This ground of appeal is baseless.

Disposition

51. Since none of the grounds of appeal have succeeded, this appeal must be dismissed. The appellant must pay the respondents’ costs of the appeal.

Orders

52. I would propose the following orders:

Appeal dismissed.

The appellant is to pay the respondents’ costs of the appeal on the standard basis.

Footnotes

1. McEwan v The Commissioner of Taxation [2022] QSC 279 at [1]. ↩

2. McEwan v The Commissioner of Taxation [2024] QSC 252 at [2]; AB 13. ↩

3. Ibid, [6]; AB 14. ↩

4. Ibid, [7]; AB 14. ↩

5. Ibid, [13]; AB 15. ↩

6. AB 36-39. ↩

7. Affidavit J McEwan sworn 14 March 2025; Exhibit JM-1. ↩

8. AB, 1-5. ↩

9. AB, 6-10. ↩

10. Tr 1-4, ll7-10. ↩

11. [2021] QCA 198; (2021) 9 QR 141. ↩

12. Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at [177]. ↩

13. [2014] QCA 294. ↩

14. R 470(1). ↩