McEwan v Merrin

• [1] This is an application for leave to issue a claim and statement of claim by the plaintiff which she purported to file on 12 January 2023. On 19 January 2023 I made orders refusing leave and making no order as to costs and stated I would publish my reasons on 20 January 2023.
• [2] The plaintiff's claim and statement of claim was referred to the applications' Judge pursuant to r 15 of the Uniform Civil Procedure Rules 1999 (Qld) ('UCPR') and Justice Williams subsequently directed the Registrar to refuse to file the originating process without leave of the Court.
• [3] The plaintiff has filed an extensive pleading against a number of Magistrates, the Chief Magistrate and a Judge of this court as well as the State of Queensland claiming damages from each of the defendants for misfeasance in public office.
• [4] The plaintiff provided submissions to the court which were in two parts. The first part alleged that there was an abuse of process at the Court Registry when the court refused filing and misused r 15 of the UCPR which was continued when the matter was referred to Justice Williams, who ordered that the originating process not be issued without leave of the court. According to the plaintiff the power under r 15 of the UCPR was misused because the proceedings were critical of the Supreme Court Justice and therefore the court should allow the proceedings to be issued and proceed without further consideration.
• [5] The basis upon which the plaintiff has alleged the power was misused was because in a conversation with a Deputy Registrar to which she has deposed she states that he had come out advising the Registry would not accept the filing of the claim and statement of claim because it was an abuse of process and stated as the sole reason was the Supreme Court Justice has been named as a defendant. The plaintiff proposed that I stand down the matter for the Deputy Registrar to be cross-examined and otherwise the evidence would stand unchallenged. The plaintiff stated that the Deputy Registrar could not have formed the view that the statement of claim was an abuse of process because he had admitted he did not read the statement of claim. As I indicated to the plaintiff, her contention failed to take into account that Justice Williams, to whom the claim and statement of claim were referred, ordered that it not be issued without leave of the Court being obtained. There is no evidence that Justice Williams made a determination other than in accordance with r 15 of the UCPR based on her review of the claim and statement of claim.
• [6] The application before me is for leave to issue the claim and statement of claim, not a review of the original decision. It is therefore not relevant for me to, as the plaintiff suggested, stand the matter down to interrogate the Deputy Registrar in order to make findings as to what occurred as it is not relevant in light of Justice Williams' determination.
• [7] In Walter v Premier of Queensland[1] Justice Henry set aside a claim pursuant to r 16(e) of the UCPR. By way of obiter, his Honour made observations as to the utility of r 15 of the UCPR. In particular, his Honour noted that "... r 15 represents a useful safeguard against apparent misuse of that [i.e. the Supreme Court's] authority". His Honour stated that:[2]

"...When a claim is issued it issues under the cover of the authority of the Supreme Court of Queensland. Rule 15 represents a useful safeguard against apparent misuse of that authority. The claim's failure to, in any articulate way, state the nature of the claim or the relief sought, and its content generally, were strong indicators that the claim was an abuse of the processes of the Supreme Court of Queensland."

• [8] In that case, his Honour considered the case before him was a good example of the type of case where Registrars should consider using r 15 of the UCPR.
• [9] In determining whether to grant leave, the question for me is whether the plaintiff sufficiently, in an articulate way set out the nature of the claim and relief sought such that the statement of claim discloses the cause of action identified in the claim. It does not involve an assessment of the prospects of success of the claim or any assessment of the merits of the claim. For the purpose of determining this application the court examines the claim and statement of claim. It is therefore not relevant that I review the affidavit evidence annexing transcripts upon which the plaintiff relies to support her pleaded allegations.
• [10] It is only in the clearest of cases where on the face of the pleading it discloses no reasonable cause of action which is evident on a review of the face of the pleading that leave will be refused.[3] As to what is required of a pleading, Bowskill J (as she then was) in Equititrust Limited v Tucker and Others[4] stated that:

"....Considerations relevant in deciding if a pleading is deficient include whether it fails to fulfil the function of pleadings, which is to state with sufficient clarity the case that must be met and so define the issues for decision, ensuring procedural fairness; whether it is ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against them; and whether the pleader's case is not advanced in a comprehensible, concise form appropriate for consideration by both the court, and for the purpose of the preparation of a response."

• [11] I take into account that the pleading is drawn by a self-represented litigant who is not familiar with the strict rules of pleading.

• [12] The elements to establish misfeasance in public office have been well established since the High Court case of Northern Territory v Mengel[5] ("Mengel") In Mengel the majority observed that the weight of authority in Australia and in the United Kingdom was "clearly to the effect that it [referring to the tort of misfeasance] is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power."[6] In order to establish the cause of action, the pleading must address the five elements of the tort namely:

(a) that a public officer; > > (b) did an invalid or unauthorised act; > > (c) maliciously; > > (d) in the purported discharge of his or her public duties; > > (e) which causes loss to the plaintiff.

• [13] The third element can be established in different ways.
• [14] Brennan J (as he then was) in Mengel stated that:[7]

"Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete."

• [15] The plaintiff relies on reckless indifference for establishing her case.
• [16] In that regard the majority in Mengel, stated that:[8]

"The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach." (footnotes omitted).

• [17] Deane J in Mengel[9] identified a further way in which malice may be established, namely "acting with reckless indifference as to the validity of the person's power and the likely injury to the plaintiff.".[10] An act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury.[11]
• [18] In pleading a claim, a plaintiff must plead with specificity the facts relied upon to allege that at the time of doing the alleged invalid or unauthorised act the relevant public officer acted with reckless indifference.

• [19] The plaintiff's claim is for $600,000 for misfeasance of public office and for aggravated and exemplary damages to punish the defendants in the same amount.
• [20] In broad terms the plaintiff's claim arises out of proceedings in the Magistrate's Court with respect to charges presently progressing to a committal and to applications made by the plaintiff in that regard, the dealing with complaints made by the plaintiff in relation to the third defendant about the first defendant and as to the conduct of the prosecution and the ATO and an application made to the Supreme Court considered by the fifth defendant.
• [21] I note the plaintiff identified to the court in oral submissions that she had pleaded the statement of claim having regard to the elements of the action with extensive particulars and any deficiencies in the pleading could be addressed by leave being granted to her with leave to amend. Had I considered any deficiencies in the statement of claim could be cured by some amendments I would have granted leave. However, having reviewed the pleading I have not reached that view.
• [22] I have determined that leave should not be granted for the issuing of the claim and statement of claim as it is evident on the face of the statement of claim in its present form that it does not disclose a reasonable cause of action or articulate the claims in a comprehensible and precise form to enable a party to identify the claims made against them and contains serious allegations unsupported by the facts.
• [23] While I appreciate that the matter has a lengthy and complex history and the difficulties that can create for pleading a claim of some complexity, the statement of claim suffers from the fact that it is a narrative of events which are irrelevant to and disconnected from the cause of action the plaintiff seeks to raise.
• [24] The statement of claim by way of background sets out events leading to the laying of charges against the plaintiff. The Queensland Police Service ("QPC") charged the plaintiff with fraud (the "State Charge") in August 2018. The plaintiff alleges that the charge was prosecuted by the Australian Taxation Office ("ATO"), the Offices of the Commonwealth Director of Public Prosecutions ("CDPP") and Director of Public Prosecutions ("DPP"). A nolle prosequi was entered on 12 May 2021 in relation to the State Charge. Charges referred to as the ATO charges were also laid against the plaintiff in April 2019. They remain on foot. Bail charges were laid against the plaintiff which the plaintiff alleges were a continuation of an abuse of process pleading that they were laid after she issued civil proceedings for malicious prosecution against various parties connected with the prosecution of the State Charge, including the CDPP, ATO, DPP and QPS. It is alleged that the ATO have failed to disclose a number of documents in support of the claims and relating to misuse of a compulsory interview with the plaintiff and its use, which the plaintiff has sought to obtain by reference to the proceedings. While the plaintiff has included those matters as a matter of context they are of questionable relevance unless they have been linked to the allegations made against the various defendants. There is presently a disconnect between a number of those allegations and the pleaded case against the defendants.
• [25] Fundamentally, after pleading a long narrative of events the plaintiff seeks to articulate the elements of the cause of action in paragraphs [92]-[102], [110]-[117], [122]-[125] and [134]-[138], the plaintiff fails to articulate material facts or identify particulars in relation to the alleged or unauthorised act facts which support an allegation that the defendants have when doing the acts alleged to be invalid or unauthorised, acted with reckless indifference.
• [26] An examination of the statement of claim as a whole demonstrates that it is not a matter of the plaintiff merely cross-referencing to the earlier paragraphs in the pleading to identify the facts relied upon or inferences based on facts pleaded for the later allegations against each defendant which purport to plead the cause of action. While the statement of claim pleads a myriad of matters as what occurred at different hearings before the first, fourth and fifth defendants, they are not material facts supporting the elements of the tort of misfeasance but rather matters of evidence pleaded in a disparate way largely pleading submissions made by the plaintiff as to documents she relied upon to support her application, and in particular her contentions that the prosecution were engaging in an " abuse of process and dishonesty"[12]. Those matters are not articulated in a comprehensible way and are interspersed with what appears to be commentary and argument by the plaintiff.[13]
• [27] Further, the plaintiff pleads serious allegations in relation to the conduct of the defendant in a conclusionary generalised way without articulating any factual basis to support those allegations. [14]
• [28] For example, the matters pleaded in subparagraph [71(g)] or the earlier subparagraphs do not plead any material facts supporting the allegation that the defendant made "false statements relating to the outcome of the directions hearing to dishonestly make an order that prejudices the plaintiff", nor is the conclusion in subparagraph (iii) supported by the earlier pleaded facts. It may be that the plaintiff submitted that to be the case, but that does not establish a factual basis for the conclusion.
• [29] Paragraph [90] pleads that the first defendant abused the court's own processes by restricting, concealing and obstructing the evidence allowed at the committal alleging that the first defendant had inconsistently stated the test to be applied and the basis of jurisdiction and then pleads based on those statements that the first defendant "knowingly abused the courts process to swing and sway to make a decision by failing to apply the law that would cause injustice and prejudice the plaintiff" and "provide an unfair and dishonest advantage to the prosecution." No material facts are pleaded to support those conclusions. Similarly, paragraph [91(e)] pleads that the first defendant excluded

"... evidence from the State charge knowing such evidence would impugn the credit of Mr Rains, the prospectors (sic) and their Civilian witnesses; and in doings o (sic)

(i) would cause injury and prejudice to the plaintiff.

(iii) interfered with the administration of justice."

• [30] As to the paragraphs specifically directed to each defendant which purport to address the elements, while it may at inferred what decisions made by the first, third, fourth and fifth defendants were contrary to law or unauthorised, it fails to plead material facts supporting the allegation that such decisions were made out of malice, specifically out of reckless indifference as to the validity of the power and the likely injury to the plaintiff. They are matters of mere assertion.
• [31] By way of further example:

(a) The plaintiff pleads in subparagraphs [99(g)(i)-(vi)] that:

"(g) Such conduct of excluding evidence by way of cross examination of witnesses and compelling disclosure was done for an improper purpose -

(i) was therefore an invalid exercise of power exceeding jurisdiction;

(ii) was done for purposes other than a proper purpose;

(iii) to unlawfully provide symbiotic protection of Mr Rains, police and prosecutors;

(v) to provide an unfair advantage to the ATO and CDPP by criminally concealing evidence;

(vi) participated in the conspiracy to prejudice the plaintiff and to obstruct justice."

Particulars are set out in paragraph [99]. At their highest the particulars may support the allegation in subparagraph (g)(i), but otherwise are not capable of supporting the allegations in subparagraphs (g) (ii)-(vi);

(b) Paragraph 100 pleads that the first defendant "undertook an invalid or unauthorised act[15] when presiding over the matters of the plaintiff, and repeats and relies on the aforesaid paragraphs 45-94, conduct consistent with misfeasance in public office and further by abusing the courts processes" and pleads matters in subparagraphs (a)-(l) making serious allegations, particularly in subparagraphs (c), (d), (g), ( h), (j), (k) and (l) which include allegations of concealing fraud, attempting to pervert the course of justice and other conduct of potentially a criminal nature. The allegations go well beyond reckless indifference and such serious allegations without a pleaded factual basis are scandalous;

(c) Paragraph [101] pleads that the first defendant "caused a detriment, injury or harm to [the plaintiff] with reckless indifference to the likely injury, as pleaded in the relief". There are however no material facts pleaded to support the allegation of reckless indifference to establish the element of malice;

(d) Paragraph [102] pleads a lack of bona fides on behalf of the first defendant. There are however with no material facts pleaded in support of the allegation.

• [32] The same failings are evidenced in paragraphs [116]-[118], [123]-[124] and [136]-[138] even though the conduct, the subject of allegations against the third, fourth and fifth defendants are of a more limited nature.
• [33] In relation to the element of intentional infliction of harm, the plaintiff submitted to the court her case relies on the first, third, fourth and fifth defendants acting with reckless disregard. That allegation must be supported by the pleading of material facts in order to disclose a cause of action. The statement of claim also contains serious allegations of dishonesty, lack of bona fides and engaging in conduct that was within a framework of conspiracy to obstruct justice, prejudice and injure the plaintiff and perverting the course of justice in breach of the Crime and Corruption Act 2001 (Qld). Such allegations must also be supported by material facts in the absence of which they are scandalous. While there are other difficulties with the claim and statement of claim, the absence of a properly articulated claim as to the element that the public officer did an unauthorised act with the relevant state of mind and with serious unparticularised allegations against each of the defendants would be an abuse of the authority of the court to grant leave for the claim and statement of claim to be issued.
• [34] Having carefully considered the claim and statement of claim and the submissions of the plaintiff, I have determined not to give leave for the issuing of the claim and statement of claim in circumstances where it fails to plead an arguable cause of action for misfeasance in public office.
• [35] The present determination does not preclude the plaintiff in the future from seeking to file a claim and statement of claim in a proper form.

• [36] Leave is refused and the application is dismissed. There should be no order as to costs. Although Mr Pitman of Crown Law appeared at the proceeding on behalf of the first, third and fourth defendants having been served with the originating application, he indicated he did so out of courtesy to the court. As it was an application for leave to issue the originating process his attendance was not required.

[1] [2018] QSC 237.

[2] [2018] QSC 237 at [10].

[3] Even if leave is granted, the claim and statement of claim may still be liable to be struck out on closer analysis by the parties

[4] [2019] QSC 51 at [14] referring to Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252 at [27]- [28]

[10] See also Mengel per Mason CJ, Dawson J, Toohey J, Gaudron J and McHugh J at 347.

[12] See for example [55] of the Statement of Claim.

[13] See for example [58], [62], [65] and [66] and [71] and [90].

[14] See for example [71(g)], [90], [91].