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[2023] QCA 135
General information, not legal advice.
Court of Appeal (Qld)
2023-06-30
McMurdo and Bond JJA and Callaghan J
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: McEwan v Rains & Ors [2023] QCA 135
PARTIES: JULIE McEWAN / (appellant) / v / ANTHONY RAINS / (first respondent) / AUSTRALIAN TAXATION OFFICE / (second respondent) / COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS / (third respondent)
FILE NO/S: Appeal No 12599 of 2022 SC No 9181 of 2022
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – Unreported, 15 September 2022 (Cooper J)
DELIVERED ON: 30 June 2023
DELIVERED AT: Brisbane
HEARING DATE: 23 November 2022
JUDGES: McMurdo and Bond JJA and Callaghan J
ORDERS: Application for leave to rely on further evidence refused.Appeal allowed.Set aside the orders made by the primary judge on 15 September 2022.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – SUBPOENAS AND NOTICE TO PRODUCE AT HEARING – SETTING ASIDE OR OTHER RELIEF – where the appellant was charged with 30 offences relating to an investigation conducted by the Australian Taxation Office (“the ATO Charges”) – where the appellant filed an originating application in the Supreme Court against the respondents seeking a permanent stay of the ATO Charges or, alternatively, orders setting the proceedings aside – where the appellant caused the issue of nine subpoenas requiring the attendance of witnesses at the hearing of the application, both to give evidence and to produce documents – where, prior to the substantive hearing, the respondents sought and obtained orders from the primary judge setting aside each of those subpoenas on the basis the subpoenas disclosed no legitimate forensic purpose and bore the character of a fishing expedition – where the appellant seeks to set aside those orders – where the primary judge’s attention was not drawn to a recent decision in the New South Wales Court of Appeal which reconsidered the line of previous authorities with respect to the relevant considerations for an exercise of discretion to set aside a subpoena – where that recent decision has been referred to with approval on multiple occasions in other superior courts – whether that recent decision should be followed in an exercise of discretion to set aside a subpoena – whether the primary judge erred in the approach taken – whether that error caused a substantial injustice to the appellant / Criminal Code (Cth), s 11.1, s 134.2, s 135.1 / Criminal Code (Qld), s 488 / Taxation Administration Act 1953 (Cth), s 353-10, s 355-50, s 355-70 / Uniform Civil Procedure Rules 1999 (Qld), r 416 / Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141; [2021] QCA 198, applied / Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65, distinguished / Beale v Chief Health Officer & Anor [2022] QCA 188, applied / Director of Public Prosecutions & Ors v McEwan [2022] QCA 142, related / McEwan v Director of Public Prosecutions & Anor [2022] QCA 231, related / McEwan v The Commissioner of Taxation of the Australian Taxation Office [2022] QSC 81, related / R v Kinghorn (2021) 106 NSWLR 322; [2021] NSWCCA 313, considered / R v Leach [2019] 1 Qd R 459; [2018] QCA 131, considered / R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions (2022) 10 QR 40; [2022] QCA 7, considered / R v Moti [2009] QSC 293, cited / R v Vo [2022] QDCPR 74, considered / Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, followed / Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; [1989] FCA 340, cited / Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24, distinguished
COUNSEL: The appellant appeared on her own behalf / S A McLeod KC, with P Kinchina, for the respondents
SOLICITORS: The appellant appeared on her own behalf / Australian Government Solicitor for the respondents
McMURDO JA: I agree with Bond JA.
BOND JA: On 4 April 2019, and on the complaint of the first respondent – who is an investigator employed by the Australian Taxation Office (the ATO) – the appellant was charged by way of complaint and summons filed in the Magistrates Court with the following 30 charges (the ATO Charges):(a)one count of attempting to dishonestly obtain a financial advantage contrary to s 134.2(1) and 11.1 of the Criminal Code 1995 (Cth);(b)11 counts of influencing a Commonwealth public official contrary to s 135.1(7) of the Criminal Code 1995 (Cth); and(c)18 counts of forgery and uttering contrary to s 488 of the Criminal Code 1899 (Qld).
By originating application filed 3 August 2022, the appellant commenced a proceeding in the Supreme Court against the first respondent, the ATO, and the Commonwealth Director of Public Prosecutions (the CDPP). Although she was the applicant in that proceeding, it will be convenient to refer to her as the appellant throughout this judgment. The three respondents to the originating application are also the three respondents to this appeal.
The originating application relevantly sought a permanent stay of the ATO Charges or, alternatively, orders setting the proceedings aside. The appellant contended that the prosecution of the ATO Charges was oppressive, involved prosecutorial misconduct, invoked the Court’s procedures for an illegitimate purpose, and brought the administration of justice into disrepute.
At the time the appellant filed her originating application, a committal hearing in the Magistrates Court in relation to the ATO Charges had been listed to commence in October 2022. It has since been adjourned to a date to be fixed after, amongst other things, the determination of the appellant’s stay application.
In anticipation of the hearing of her originating application in the Supreme Court, the appellant caused the issue of nine subpoenas requiring the attendance of witnesses at the hearing of her application, both to give evidence and to produce documents. However, a few days before the hearing, the respondents sought and obtained orders from the primary judge that each of the subpoenas be set aside. The appellant having intimated an intention to appeal those orders, the hearing of the appellant’s originating application was adjourned. A new hearing date has not yet been set.
By the present appeal, the appellant, who represents herself, seeks to have set aside the orders made by the primary judge in relation to the subpoenas. For the following reasons, the appeal should be allowed, and the orders made by the primary judge set aside.
The case which the appellant seeks to advance
The appellant claims to have invented a therapeutic product (the product) which could eventually be used for weight loss and to treat, amongst other things, cancer, diabetes and Alzheimer's Disease.
She says she set up a number of companies, of which she was the majority shareholder, for the purposes of research, development and marketing of the product in relation to its proposed uses. Venika Biotech Pty Ltd (Venika Biotech), was to be associated with the research, development and marketing of the product in relation to cancer. Apagein Biotech Pty Ltd (Apagein Biotech), was to be associated with the research, development and marketing of the product in relation to weight loss.
The appellant says she contemplated the need to obtain patents, to conduct clinical trials, and ultimately to embark on a manufacturing process for commercial production. To develop the product for its proposed uses she sought investment funding, apparently proposing that investors could obtain the right to manufacture the product for commercial production, in return for payment to and options in the relevant one of her companies.
The appellant says that she obtained independent advice that her companies were eligible for a research and development tax offset. She says that based on that advice she caused Venika Biotech to file an application with the ATO for a research and development tax offset in respect of the costs of development of the product in relation to the treatment of cancer.
In late 2016 and early 2017, the appellant, Apagein Biotech and a private equity investor company called Brisbane Angels Group Pty Ltd (Brisbane Angels) entered into a relationship pursuant to which Brisbane Angels invested $185,000 into Apagein Biotech in connection with the development of the product for weight loss. The appellant contends that during the due diligence process in relation to the proposed investment, she gave confidential information in relation to the product to Brisbane Angels. It suffices to observe that by mid-2017 the relationship had become acrimonious. Brisbane Angels sought the return of its funds, and the appellant and Apagein Biotech sought the return of confidential information.
By September 2017, the appellant received advice that the ATO was investigating Venika Biotech’s tax offset claim.
In January 2018, the appellant was the subject of a compulsory examination by officers of the ATO, her attendance having been compelled by notice pursuant to s 353-10 Sch 1 of the Taxation Administration Act 1953 (Cth) (the TAA). The appellant says that she attended with her tax and legal advisers and that the compulsory examination took place over a period of 8 hours. She contends that during the examination:(a)she was not warned that any of the information or documents she gave could be used in proceedings against her or shared with anyone outside of the ATO; and(b)she was specifically told that any information and documents she gave was subject to strict privacy requirements and that they could only be used for assessment of Venika Biotech's tax offset claim.
“The [appellant] claims that the laying of this State Fraud Charge in respect of the Brisbane Angels investment was, in effect, orchestrated by [the first respondent]. She says that [the first respondent]: gave information to representatives of Brisbane Angels to the effect that the [appellant] had misappropriated the investment; organised for representatives of Brisbane Angels to give statements to the ATO about the investment; obtained information from Brisbane Angels relating to the investment; entered into a joint agency agreement between the ATO and the Queensland Police Service for the investigation of the [appellant]; and thereafter controlled the prosecution of the State Fraud Charge undertaken by the [CDPP] and, for the purpose of the committal proceeding, by the Queensland DPP.
The [appellant] claims that neither the [CDPP], nor the Queensland DPP had any evidence that could reasonably support the State Fraud Charge. The [appellant] has now filed a claim against the Commissioner of Taxation, the Commonwealth Director of Public Prosecutions, the Queensland Director of Public Prosecutions, [the first respondent] and numerous other defendants for malicious prosecution in relation to the State Fraud Charge. That is the matter of McEwan v Commissioner of Taxation & Ors, file number BS971 of 2022.2 Many of the defendants in that claim for malicious prosecution are the subject of the subpoenas which the respondents seek to have set aside.”
As mentioned, the complaint and summons in respect of the ATO Charges was filed on 4 April 2019. The Crown case in relation to the first of the 30 counts was that the appellant had attempted to defraud the ATO by authorising lodgement of a research and development tax offset claim on behalf of Venika Biotech which stated that the company was involved in the research and development of a drug to treat cancer, falsely claimed that it incurred $8,456,800 in related expenditure in the financial year ending 30 June 2017, and sought a refund of $3,678,708 from the ATO. The Crown case in relation to the remaining counts was that during a review of the research and development tax offset claim by the ATO, the appellant provided or authorised the provision of material and information to the ATO which included forged documents which were intended to mislead the ATO into accepting the research and development tax offset claim and paying the refund.
Although the prosecution of the State Fraud Charge has been discontinued, the prosecution in respect of the ATO Charges is ongoing. A committal hearing for the ATO Charges had been set down to be heard in the Brisbane Magistrates Court on 18 to 21 October 2022. As mentioned, the committal hearing has since been adjourned to a date to be fixed after, amongst other things, the determination of the appellant’s Supreme Court stay application.
The appellant complains that the investigative and prosecutorial agencies who had been involved in the prosecution of the State Fraud Charge are involved in the prosecution of the ATO Charges. She asserts that the same prosecutorial misconduct which must have occurred in relation to the State Fraud Charge either is or will be reflected in the conduct of the ATO Charges. She specifically complains about the adequacy of disclosure which the prosecution has made to her in relation to the ATO Charges. She also specifically complains that the first respondent has shared protected information (including information obtained by compulsory process) in relation to the ATO Charges. As to this:(a)The appellant complains that the first respondent shared such information with a person who will be a prosecution witness in relation to the ATO Charges, namely Patricia Ivar, the Assistant Manager of the R&D Tax Incentive program at the Department of Industry, Science and Resources (referred to as AusIndustry). That this occurred may not be disputed, although presently the facts are unclear. The respondents’ position is:
“Any disclosure of the record of interview was pursuant to an exception in Schedule 1, Subdivision 355-B to the TAA. The disclosure of protected information to Auslndustry was permitted by the performance of duties exception in subsection 355-50(1) of Schedule 1 to the TAA as it was a disclosure "made in performing the entity's duties as a taxation officer". That is, the disclosure to AusIndustry was for the purposes of administering the tax law to notify AusIndustry of the audit which ultimately resulted in the ATO denying the R&D tax offset to be paid and is now the subject of the ATO charges; and Auslndustry's assessment of the veracity of a R&D registration under the Industry Research and Development Act 1989 (Cth).”
(b)The appellant also complains that the first respondent conveyed protected information (including information obtained by compulsory process e.g. the transcript of the record of interview and the interview notes) to the CDPP, who, accordingly must have used that information in relation to the ATO Charges. That this occurred may also not be disputed, although presently the facts are unclear. The respondents’ position is:
“Any disclosure to the CDPP was pursuant to the law enforcement exception in section 355-70 of Schedule 1 to the TAA for the investigation and/or enforcement of contraventions amounting to serious offences and/or the performance of duties exception in subsection 355-50 of Schedule 1 to the TAA.”
(c)Finally, the appellant complains that there has been an “untracked dissemination of the Protected Information so, in other words, it can never be known to what extent the prosecution's case has unfairly and unlawfully benefitted from that information or, on the other hand, the extent to which [the appellant's] defence has been compromised such that she could never receive a fair trial.”
“… the effect of [the matters of which the appellant complains and which are advanced as grounds for the permanent stay of the ATO Charges] is that [the first respondent] conspired with representatives of Brisbane Angels to make false allegations against [the appellant] which gave rise to the State Fraud Charge. Further, that the Queensland Police Service, the [CDPP] and the Queensland DPP, as well the various employees of those bodies then improperly and maliciously prosecuted the State Fraud Charge, knowing there was no basis for that charge. And then, as a final step, the fact that the same investigative and prosecutorial agencies are involved in the prosecution of the ATO charges means that those proceedings should be stayed.”
The subpoenas
On 5 and 9 September 2022, the appellant filed requests for subpoenas to be issued to nine persons to attend and given evidence at the hearing of the stay application including by producing relevant documents. One subpoena was directed to the first respondent. With one exception, the other respondents were all either potential witnesses in relation to the ATO Charges or were employees or officers of the CDPP. The exception was Ms McGregor who is an employee/officer of the Office of the Director of Public Prosecutions (Qld).
I record the nature of the subpoenas below.
As to the subpoena directed to the first respondent:(a)The first respondent was the ATO investigator in relation to the ATO Charges. He has provided a witness statement in relation to the ATO Charges. The respondents suggest he will likely be called at the committal hearing.(b)The subpoena required the first respondent to attend the hearing of the appellant’s stay application on 20 September 2022 for the purpose of giving evidence and producing documents.(c)The subpoena suggested that the first respondent could provide important evidence about the investigation which led to the ATO Charges and concerning the material facts relating to the State Fraud Charge and the ATO Charges. It flagged the intention that he would be asked questions concerning the disclosure of transcripts of a compulsory interview conducted with the appellant under section 353-10 of schedule 1 to the TAA. (It is convenient to refer to those transcripts simply as the record of the appellant’s compulsory interview.)(d)The documents required to be produced were described in these terms:
“Documents that relate to the prosecution of the applicant:
All ATO statements including draft ATO statements of John Mactaggart and Richard Hoult of the Brisbane Angels
All emails and communications between yourself and Patricia Ivar Ausindustry.
All documents provided to Patricia Ivar Ausindustry by you.
If you or other ATO officials have provided the s 353 interview to any other witnesses, then provide the documents to support the disclosure.
All emails and communications between yourself and John Mactaggart.”
“Documents that relate to the prosecution of the applicant:
Any draft or signed statement you provided to the ATO.
Any documents provided to you from the ATO or [the first respondent] about the Venika investigation or investigation of the [appellant].
All emails between the Brisbane Angels which includes yourself between the dates December 2016 and 16 August, 2017 can verify:-
3.1 the Brisbane Angels were not aware of how their investment had been acquitted;
3.2 any documents that can verify expenses paid on the Acquittal emailed to Mr Monaghan dated 16 August, 2017 were not authorized by the Brisbane Angels and were fraudulent.
Regarding your complaint to the police on 10 August, 2018, identify the documents that prove $185,000 had been spent on a personal loan and other expenses.
Any documents relating to the QP9 facts of the charge:
5.1 documents that were provided to you by Mr Anthony Rains of the ATO relating to the QP9 facts of the charge paragraph 7.
5.2 You were a witness in this matter and received a copy of the QP9 charge as well through your solicitor Mr Hill.
5.3 If [the first respondent] only provided "information" or "shared" documents with the Brisbane Angels, then this will be a matter for cross examination to provide to the court.”
As to the subpoena directed to Mr Mactaggart:(a)Mr Mactaggart is a member of the Brisbane Angels who has provided a witness statement in relation to the ATO Charges. The respondents suggest he will likely be called at the committal hearing.(b)The subpoena required Mr Mactaggart to attend the hearing of the appellant’s stay application on 20 September 2022 for the purpose of giving evidence and producing documents.(c)The subpoena suggested that Mr Mactaggart could provide evidence concerning statements to the ATO and the QPS in support of the prosecution against the appellant and concerning his dealings with the first respondent of the ATO regarding the Venika Biotech.(d)The documents required to be produced were described in the same terms as were used in respect of Mr Hoult.
As to the subpoena directed to Mr Monaghan:(a)Mr Monaghan is a member of the Brisbane Angels who has provided a witness statement in relation to the ATO Charges. The respondents suggest he will likely be called at the committal hearing.(b)The subpoena required Mr Monaghan to attend the hearing of the appellant’s stay application on 20 September 2022 for the purpose of giving evidence and producing documents.(c)The subpoena suggested that Mr Monaghan could provide evidence concerning numerous statements he had made to the ATO and the QPS in support of the prosecution against the appellant, concerning “the company that relates to these proceedings” (presumably Venika Biotech) and concerning his dealings with the first respondent of the ATO.(d)The documents required to be produced were described in slightly different terms to those used in respect of Messrs Hoult and Mactaggart:
“Documents that relate to the prosecution of the applicant:
Any documents provided to you from the ATO or [the first respondent] about the Venika investigation or investigation of the applicant.
All emails between the applicant and yourself from July, 2016 and August, 2017 that relate to the investment of Apagein;
All emails between IP attorney Grant Shoebridge and yourself from November, 2016 and August, 2017 that relate to the intellectual property of Venika, Astra Nobel, Shastra Healthcare, Apagein Biotech, Apagein Holdings.
All emails between the Brisbane Angels which includes yourself between the dates December 2016 and 16 August, 2017 can verify:-
4.1 the Brisbane Angels were not aware of how their investment had not been acquitted;
4.2 any documents that can verify expenses paid on the Acquittal emailed to you dated 16 August, 2017 were not authorized by the Brisbane Angels and were fraudulent.
Any documents relating to the QP9 facts of the charge:
5.1 documents that were provided to you by Mr Anthony Rains of the ATO relating to the QP9 facts of the charge paragraph 7.
5.2 You were a witness in this matter and received a copy of the QP9 charge as well through your solicitor Mr Hill.
5.3 If [the first respondent] only provided "information" or "shared" documents with the Brisbane Angels, then this will be a matter for cross examination to provide to the court.”
“Documents that relate to the prosecution of the applicant:
Any documents that were provided to you by Mr Mactaggart and or Mr Hoult of the Brisbane Angels relating to the charge and QP9 facts of the charge specifically paragraph 7.
Any documents that were provided to you by Mr Anthony Rains of the ATO relating to the QP9 facts of the charge specifically paragraph 7.
2.1 You laid the charge, you were the author of the complaint and summons and the QP9.”
As to the subpoena directed to Ms Devereaux:(a)Ms Devereaux has held the positions of Assistant Director and Acting Deputy Director of Public Prosecutions at the office of the CDPP. Ms Devereaux oversaw the prosecution of the appellant for the State Fraud Charge and the ATO Charges until about December 2020 on behalf of the CDPP.(b)The subpoena required Ms Devereaux to attend the hearing of the appellant’s stay application on 20 September 2022 for the purpose of giving evidence.(c)The subpoena suggested that Ms Devereaux would be asked questions relating to the appellant and the State Fraud Charge and the ATO Charge, including the instructions she received from the first respondent, the documents contained in the prosecution brief and the record of the appellant’s compulsory interview which the CDPP obtained.
As to the subpoena directed to Ms Caulfield:(a)Ms Caulfield is currently a Law and Policy Design Director on secondment with another Government agency. Ms Caulfield was previously a Technical Taxation Specialist Director at the ATO involved in the investigation in relation to the ATO Charges. Ms Caulfield has provided a witness statement in relation to the ATO Charges. The respondents suggest that Ms Caulfield will likely be called at the committal hearing.(b)The subpoena required Ms Caulfield to attend the hearing of the appellant’s stay application on 20 September 2022 for the purpose of giving evidence and producing documents.(c)The subpoena suggested that Ms Caulfield could (1) provide evidence concerning her involvement with the investigation for both the State Fraud Charge and the ATO Charges and (2) her disclosure of the record of the appellant’s compulsory interview to Ms Ivar of Ausindustry.(d)The documents required to be produced were described in these terms:
“Documents that relate to the prosecution of the applicant:
All emails between yourself and Ms Ivar.
Any emails or documents to demonstrate you provided the s 353 record of interview to any other person or organization.”
As to the subpoena directed to Ms McGregor:(a)Ms McGregor is currently an Acting Senior Legal Officer at the Office of the Director of Public Prosecutions Queensland. Ms McGregor had carriage of the State Fraud Charge prosecution on behalf of the Director of Public Prosecutions Queensland.(b)The subpoena required Ms McGregor to attend the hearing of the appellant’s stay application on 20 September 2022 for the purpose of giving evidence.(c)The subpoena suggested that Ms McGregor could provide important evidence relating to the material facts of the State Fraud Charge. It suggested she would be asked–questions relating to the instructions she received from Ms Devereaux and the first respondent of the ATO for the prosecution of the State Fraud Charge;questions relating to the documents contained in the prosecution brief, the Apagein Biotech bank statement, financial models spreadsheet, Term Sheet, shareholder agreement, Monaghan ATO statement 18 April, 2018 and Monaghan affidavit 29 January, 2018; andwhether she received a copy of the record of the appellant’s compulsory interview.
As to the subpoena directed to Mr Micairan:(a)Mr Micairan is a Senior Federal Prosecutor at the office of the CDPP who has carriage of the prosecution of the ATO Charges on behalf of the CDPP. Mr Micairan had carriage of the prosecution of the State Fraud Charge on behalf of the CDPP between about October 2020 to the presentation of the nolle prosequi in that matter on 12 May 2021.(b)The subpoena required Mr Micairan to attend the hearing of the appellant’s stay application on 20 September 2022 for the purpose of giving evidence.(c)The subpoena suggested that Mr Micairan would be questions concerning an affidavit he had provided and concerning the appellant’s suggestion that he had provided false and misleading statements to Judge Devereaux in the District Court on 4 December, 2020 of how the appellant defrauded an investor of $185,000, knowing this was false for the purpose of setting the matter down for trial.
The application determined by the primary judge
By applications filed on 8 and 9 September 2022, and pursuant to r 416 of the Uniform Civil Procedure Rules 1999 (Qld) the respondents sought orders setting aside the subpoenas either entirely or in part, on the basis that they disclosed no legitimate forensic purpose; they were a clear exercise in fishing; they amounted to an attempt collaterally to attack and undermine the committal hearing; and they were otherwise an abuse of process.
On 15 September 2022, the primary judge acceded to those applications and ordered that each of the subpoenas be set aside. The stay application which had been listed to be heard in the Supreme Court on 20 September 2022 did not proceed. Nor did the committal hearing which had been scheduled to commence in the Magistrates Court on 18 October 2022. As has been mentioned, the appellant having intimated an intention to appeal the orders setting aside the subpoenas, the stay hearing was adjourned. Similarly, the committal hearing was adjourned to a date to be fixed after, amongst other things, the determination of the stay application.
The primary judge referred to R v Moti [2009] QSC 293 at [9] to [11] where Martin J applied the reasoning of Beazley JA in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at [59] to [69]. The primary judge noted that the reasoning in Chidgey had been approved by the New South Wales Court of Criminal Appeal in Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 at [30] to [32].
Having regard to those authorities the primary judge found that the relevant test was two-fold. First, the applicant must identify a legitimate forensic purpose for which the evidence is sought. Secondly, the applicant must establish that it was “on the cards” that the evidence will materially assist the applicant’s case. The second aspect identified by his Honour led him to conclude that mere relevance was not enough. The applicant must be able to indicate that the evidence was relevant in the sense that it may assist the applicant’s case.
The primary judge noted that the appellant’s forensic purpose was to establish the matters about which she complained and to advance the grounds on which she sought the permanent stay of the ATO Charges. He summarised the appellant’s case in the manner recorded at [23] above.
His analysis then proceeded in the following way:(a)The brief of evidence for the State Fraud Charge and the ATO Charges was not the same.(b)Although there was some overlap in the evidence between the State Fraud Charge and the ATO charges, the two prosecutions were distinct in that the former involved Apagein Biotech and the latter involved Venika Biotech and there were different allegations of fraudulent or dishonest conduct.(c)Even if the appellant could establish some valid criticism of the way in which the State Fraud Charge was prosecuted, that would not be enough to impugn the conduct of the proceedings in respect of the ATO charges.(d)The effect of the appellant’s submission was that the conduct of the investigators and prosecutors of the State Fraud Charge must necessarily mean that there had been similar misconduct in the ATO charges. But the applicant could not demonstrate any real support for that submission.(e)Although much of the evidence sought by the subpoenas was sought in order to establish the appellant’s complaints about the conduct of the prosecution of the State Fraud Charge, there was no reason to believe that it was on the cards that any of the first respondent or the representatives of Brisbane Angels who had been subpoenaed would give evidence that may assist the appellant in proving that they, together, conspired to make false accusations giving rise to the State Fraud Charge. His Honour inferred that human nature was such that those persons would probably give explanations which did not admit of any conspiracy or any knowledge that false accusations had been made.(f)Based on similar assessment of human nature, his Honour was not persuaded that it was on the cards that any of the employees or officers of the QPS, the CDPP or the Queensland DPP who had been subpoenaed would give evidence that may assist the appellant in proving that they had improperly or maliciously prosecuted the State Fraud Charge.(g)Further, even in the unlikely event that those witnesses gave evidence relevant to proving the appellant’s complaints about misconduct relating to the State Fraud Charge, his Honour found that the absence of a demonstrated connection between the conduct of the prosecution of the State Fraud Charge and the asserted bases for staying the prosecution of the ATO charges meant that the appellant had not demonstrated that it was on the cards that such evidence would materially assist her on the stay application.(h)By a similar reasoning process, his Honour concluded that he did not accept that it was on the cards that any of the subpoenaed witnesses would give evidence that would materially assist the appellant on the stay application on the issue of establishing the complaints she made concerning disclosure in relation to the State Fraud Charge and in relation to the ATO charges.(i)His Honour specifically considered the subpoenas to witnesses who might give evidence as to the extent of disclosure of the record of the appellant’s compulsory interview bore the character of a fishing expedition. And, in any event, he did not think that any evidence which might reveal such inappropriate disclosure or sharing would materially assist the appellant’s stay application.(j)Finally, his Honour referred to but did not form any conclusion on the suggestions advanced by the respondents that the appellant issued the subpoenas for some purpose unconnected with the hearing and determination of her stay application, or that the subpoenas were an abuse of process because they formed part of a collateral attack on the committal process.(k)He concluded that he was not satisfied that there was a proper basis for the subpoenas, as it was not on the cards that evidence that might be given by the subpoenaed witnesses might materially assist the appellant on her stay application. On that basis he ordered that all the subpoenas be set aside.
Consideration
The decision of the primary judge was 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 with such decisions unless, in addition to error of principle, the appellant demonstrates that the order will work a substantial injustice to one of the parties: see Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [2021] QCA 198 at [13] and Beale v Chief Health Officer & Anor [2022] QCA 188 at [27].
The appellant’s notice of appeal did not identify the nature of the error which she contended that the primary judge made. However, it appears from the tenor of her written and oral submissions that she suggests:(a)first, that the primary judge erred in his identification of the principles which apply on an application to set aside subpoenas;(b)second, that making that error led him to make an erroneous assessment of whether a legitimate forensic purpose might be served by the subpoenas; and(c)finally, that the erroneous assessment will cause her injustice.
I will first address the question of the applicable legal principles.
I have explained how the primary judge identified what he regarded to be a two-fold test based on his application of principle derived from the New South Wales Court of Appeal decisions of Chidgey and Tropic Asphalts. Unfortunately, his Honour’s attention was not drawn to the fact that in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, which was a decision subsequent to both Chidgey and Tropic Asphalts, the New South Wales Court of Appeal reconsidered the line of previous authorities, distinguished Chidgey and articulated the considerations relevant to such an application rather more broadly than recorded by his Honour.
The approach articulated in Blacktown City Council has since been referred to with approval on multiple occasions in the New South Wales Court of Appeal and Court of Criminal Appeal and referred to with approval in other superior courts.4
The following propositions may be derived from Blacktown City Council:(a)The power of the Court to set aside a subpoena, in whole or in part, is an instance of its power to regulate its processes and, in particular, to intervene in a case of abuse of its process.5(b)The exercise of that power is not to be restricted to defined and closed categories. Accordingly, the use of the language of “tests” for the setting aside of subpoenas should be avoided.(c)Examples justifying the exercise of power to set aside subpoenas include:where the subpoena is not used for a pending trial hearing or application;where compliance with the subpoena would be oppressive in some way;where the subpoena has not been issued in good faith for the purpose of obtaining relevant evidence and the respondent to the subpoena is unable to give relevant evidence;where the subpoena has been used to obtain further discovery against a party or against a third party;where the subpoena has been issued for an impermissible purpose, for example “fishing”;where the evidence sought lacks apparent relevance.(d)A subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose.(e)However, a subpoena will be presumed to have been issued for a legitimate forensic purpose –if the documents sought are “apparently relevant” to the issues in the proceeding; orif the documents sought are capable of providing a legitimate basis for cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence; orif it can be seen that the documents sought to be produced by way of subpoena will (or there is a reasonable basis beyond speculation that they will) materially assist on an identified issue.(f)As to “apparent relevance”:The conception refers to adjectival rather than substantive relevance. It is to be understood as conveying the notion that the evidence sought could reasonably be expected to “throw some light” on some of the issues in the proceeding.Apparent relevance should be able to be ascertained by an examination of the description or identification of evidence sought by the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.(g)Moreover, it will not be fishing, manifesting an illegitimate forensic purpose, to seek to subpoena apparently relevant documents for the purposes of cross-examining an important witness, even if the subpoenaing party does not know whether those documents will assist or advance its case. A party may be in its case by knowing what apparently relevant documents say, even if those documents may not ultimately that party’s case.(h)An issuing party’s inability to show that the subpoenaed documents are likely to assist its case will not necessarily mean that the subpoena has not been issued for a legitimate forensic purpose, and will not automatically require either that the subpoena be set aside or that access to the documents produced be refused.(i)However, the absence of any apparent relevance of the documents sought to be subpoenaed to the issues in the case may warrant a conclusion of a lack of legitimate forensic purpose and be a sufficient ground to set aside a subpoena or part of a subpoena.
Conclusion
I would make the following orders:(a)Application for leave to rely on further evidence refused.(b)Appeal allowed.(c)Set aside the orders made by the primary judge on 15 September 2022.
CALLAGHAN J: I agree with the reasons of Bond JA and the orders he proposes.
cf R v Vo [2022] QDCPR 74 in which Chowdhury DCJ followed Kinghorn in preference to Leach. ↩
That proceeding continues: see McEwan v The Commissioner of Taxation of the Australian Taxation Office [2022] QSC 81; Director of Public Prosecutions v McEwan [2022] QCA 142 and McEwan v Director of Public Prosecutions [2022] QCA 231. ↩
No notice of contention was filed by the respondents. Accordingly, it is not necessary to consider whether, if otherwise this Court was persuaded that the orders made by the primary judge should be set aside, the orders could be supported on the basis of the arguments not considered. ↩
Fantakis v R [2023] NSWCCA 3 at [951] to [953]; Commissioner of Police (NSW) v Fantakis [2022] NSWCCA 94 at [38] to [43]; Misan v Markham Real Estate Partners (KSW) Pty Ltd (No 2) [2022] NSWCA 155 at [13]; Zong v Lin [2021] NSWCA 209 at [16] to [18]; Waters v Secretary of Attorney-General's Dept (Cth) [2021] NSWCCA 193 at [24] to [27]. See also: Pesec v Consolidated Builders Ltd [2022] ACTSC 241 at [24] to [26]; Wornes v Freewater Australia Pty Ltd [2022] ACTSC 147 at [14] and [17] to [18]; Bloc (ACT) Pty Ltd v Crafted Capitol Pty Ltd (No 3) [2021] ACTSC 178 at [17] to [18]; Gilmore & Patrick [2022] FedCFamC1F 1015 at [34]; Betro & Grima (No 2) [2022] FedCFamC1F 897 at [11] and [14] to [17]; Tsiang & Wu [2022] FedCFamC1F 772 at [29]; Kehoe and Seden (No 2) [2022] FedCFamC1F 346 at [17] to [19]; Garnier and Garnier [2021] FedCFamC1F 186 at [8]; Woodcock and Woodcock (2021) 64 Fam LR 489 at [48] to [52] and [84]. ↩
[60] (Bell P); [88] (Brereton JA); [98], [100] (McCallum JA). ↩
[60] (Bell P); [88] (Brereton JA); [98] (McCallum JA). ↩
McEwan
Rains & Ors [2023] QCA 135
(2021) 106 NSWLR 322
(1989) 21 FCR 306
(2021) 64 Fam LR 489
(1989) 88 ALR 90
I interpolate that if that had truly been the extent of what had was conveyed to her (as to which I express no view), it may have been an inaccurate articulation of the legal position. I observe:(a)The operation of the TAA in the relevant respects is explained in R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 7 at [4] and [44] to [53].(b)If the compulsory examination had been properly instituted under the TAA, it would have been an offence for the appellant to refuse or fail to give the requested information, an offence to fail to answer questions put at the compulsory examination, and the privilege against self-incrimination would not have been a defence for failing to answer. And although the TAA makes it an offence for tax officers to disclose protected information, on its face there are a number of exceptions to the prohibition including disclosures to authorised law enforcement agencies, courts and tribunals for the purpose of investigating serious offences and enforcing the law.(c)There is, however, a conflict of authority on the question whether the TAA should be construed to authorise that disclosure and validly to permit the use of such material by prosecuting authorities.(d)In R v Leach [2019] 1 Qd R 459 this Court concluded, by majority, that the TAA should not be so construed. The Court concluded that –the use of the compulsory acquired material by the CDPP for the purpose of criminal prosecution conflicted with the fundamental principle of the common law that the onus of proof rests on the prosecution and with the “companion principle” that the prosecution cannot compel an accused to assist it;having regard to the principle of legality, such an outcome could not be regarded as having been authorised by the general words of the TAA and, accordingly, the TAA should not be construed to have authorised that conduct; andin the circumstances of the particular case before it, the use by the prosecution of the material obtained under compulsion constituted a miscarriage of justice and, as a result, the verdicts of guilty should be quashed and there should be a retrial.(e)In R v Kinghorn (2021) 106 NSWLR 322 the New South Wales Court of Appeal specifically rejected the reasoning in Leach and reached the opposite conclusion. The High Court refused special leave to appeal from Kinghorn.(f)Nevertheless, unless and until this Court examines the issue again and follows Kinghorn, appellate authority in Queensland remains that articulated in R v Leach.1
On 14 March 2018, ATO officers, including the first respondent, together with Australian Federal Police executed a search warrant at the appellant’s home and at the offices of her tax adviser.
On 22 August 2018, the appellant was charged by way of complaint and summons filed by the Queensland Police Service (QPS) in the Brisbane Magistrates Court. The Crown case was that the appellant had dishonestly applied the $185,000 invested by Brisbane Angels for her own benefit and for the benefit of others, rather than by causing those monies to be used in accordance with the investment terms. It is convenient to refer to that proceeding as the State Fraud Charge. On 10 December 2019 the appellant was committed to stand trial on the State Fraud Charge. On 5 June 2020, the appellant was charged on indictment with one count of fraud contrary to s 408C(1) of the Criminal Code 1899 (Qld). Notably, however, the State Fraud Charge did not proceed. On 12 May 2021, the Crown entered a nolle prosequi in respect of the charge and the prosecution was discontinued.
The appellant complains that as the ATO investigator the first respondent had a central role in the investigation and subsequent prosecution of the State Fraud Charge. She contends that the commencement and continuation of the State Fraud Charge constituted actionable civil wrongs against her. She complains about the first respondent’s conduct in relation to that charge, and about the prosecutorial conduct generally. Amongst other things she complains that the first respondent shared protected information to Brisbane Angels and with prosecution authorities (including, it seems, the CDPP), altered documents to omit exculpatory material and that the prosecution failed to place exculpatory material before the Court. Essentially, she complains that the prosecution for the State Fraud Charge should never have been brought.
The primary judge recorded the appellant’s contention in the following way (footnote added):
I would follow Blacktown City Council, at least, as Brereton J noted, in civil cases and in the absence of any question of public interest immunity.18 I would caution that, since the juridical basis for the power to set aside a subpoena is that identified, and “legitimate forensic purpose” is to be treated as the converse of “abuse of process”, the views there expressed, and those recorded above, are not to be treated as if they were expressed in a statute. The Court’s power should not be so confined. Further, relevant considerations might not all point one way, so that the exercise of the discretion might require the formation of an evaluative judgment. For example, in a particular case the documents sought might be apparently relevant, but the subpoena expressed in such vague terms that it would be oppressive to require the recipient to comply with it, thereby necessitating an order that it be set aside.
Notwithstanding those caveats, it is evident in this case that the primary judge took too narrow an approach to the resolution of the issues which were relevant to the exercise of his discretion. His Honour erred by concluding that mere relevance was not enough and that the appellant had to demonstrate some degree of likelihood that the evidence sought to be obtained by the subpoena would, in effect, advance her case. The discretion of the primary judge miscarried.
Having regard to the principles identified at [41], the disposition of the appeal ultimately turns on whether that error worked a substantial injustice to the appellant. Given the way the respondents’ arguments were advanced before this Court, that question must be evaluated by assuming that the appellant has an arguable case for the relief she seeks by originating application. On that assumption, it is clear that the orders of the primary judge have caused the appellant a substantial injustice. By applying too narrow an approach to the question before him, the primary judge set aside the subpoenas in their entirety when the apparent relevance of at least some of the testimonial and documentary evidence sought was undeniable, once apparent relevance is understood in the appropriate sense.
The orders which the primary judge made should be set aside. The subpoenas which were set aside have no present utility because they all required attendance and/or production of documents at a hearing to take place in September 2022. They have in any event been set aside by orders of a superior court and although those orders will be set aside, no order has been sought from this Court the effect of which would somehow re-enliven the subpoenas. Events having now moved on, a new date for the hearing will have to be fixed. The appellant will have to give consideration to the extent to which she wishes to seek the issue of fresh subpoenas, no doubt bearing in mind the considerations articulated in these reasons. Similarly, if and when the appellant causes fresh subpoenas to be issued, the respondents will have to evaluate by reference to the considerations articulated in these reasons whether and, if so, to what extent they repeat the application they previously made.
For completeness, it remains to note that the appellant advanced an application for leave to rely on further evidence in this Court. The evidence sought to demonstrate that unrelated parties had made complaints about officers of the ATO and the CDPP which were similar to those which she advanced. Her argument did not accept the discipline of demonstrating the requisite special grounds for receiving such evidence, and, in any event, the evidence was irrelevant to the questions before this Court. I would refuse that application.
[45], [46] (Bell P); [88] (Brereton JA); [98] (McCallum JA). ↩
[61] (Bell P); [88] (Brereton JA); [98], [100] (McCallum JA). ↩
[69]-[80] (Bell P); [86], [88]-[89] (Brereton JA); [98], [100] (McCallum JA). ↩
[40], [61]-[62], [69]-[70] (Bell P); [89] (Brereton JA); [98], [100] (McCallum JA). ↩
[65], [80] (Bell P); [89] (Brereton JA); [98] (McCallum JA) ↩
Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 at 102; [1989] FCA 340, referred to with approval by Bell P at [47] and [48]. Obviously apparent relevance is broader than substantive relevance in the technical sense, which requires one to consider whether the evidence would tend to prove or disprove a fact in issue. ↩
[48] Bell P; [89] (Brereton JA); [98] (McCallum JA). ↩
[68], [72] (Bell P); [89] (Brereton JA); [98] (McCallum JA). ↩
[68] (Bell P); [86] (Brereton JA); [98] (McCallum JA). ↩
[58], [63] to [64], [66], [80] (Bell P); [89] (Brereton JA); [98] (McCallum JA). ↩
[71] (Bell P); [88] (Brereton JA); [98], [100] (McCallum JA). ↩
[89] (Brereton JA). ↩