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$600k claim against magistrates dismissed
An application for leave to issue a claim and statement of claim for $600,000 against three magistrates and one judge, whom a Queensland woman claimed caused her detrimental harm “with reckless indifference”, has been refused by the state’s Supreme Court.
Lauren Croft
Earlier this month, Julie McEwan applied for leave to issue a claim and statement of claim $600,000 for misfeasance of public office and for aggravated and exemplary damages, against State of Queensland and magistrates Belinda Merrin and Peter Saggers, as well as Chief Magistrate Janelle Brassington and Supreme Court Justice David Boddice.
In August 2018, Julie McEwan was charged with fraud, for which a “nolle prosequi” (discontinuation) was entered in May 2021. Charges referred to as the ATO (Australian Taxation Office) Charges were laid in April 2019, which Justice Susan Brown noted “remain on foot”. Following the discontinuation of the former charge, Ms McEwan issued civil proceedings for malicious prosecution and misfeasance in public office against various parties including the ATO, the Commonwealth Director of Public Prosecutions (CDPP), and the Director of Public Prosecutions (DPP).
It is alleged, Brown J outlined, “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”.
The proceedings against the three magistrates and a Supreme Court justice were for alleged misfeasance by failing to compel the ATO to disclose evidence.
Ms McEwan applied for leave to issue a claim and statement of claim, which she filed earlier this month. One week later, Brown J made orders refusing leave and made no order as to costs — and has now published reasons in a judgement.
“While the statement of claim pleads a myriad of matters as what occurred at different hearings before the [magistrates], 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 [Ms McEwan] as to documents she relied upon to support her application, and in particular her contentions that the prosecution were [sic] engaging in an ‘abuse of process and severe dishonesty’,” the judgement stated.
While, Brown J noted, the claim may have “inferred what decisions made by [the magistrates] 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”.
Ms McEwan also accused magistrates Merrin and Saggers, chief magistrate Brassington and Justice Boddice of acting with “reckless disregard” and allegedly being dishonest and engaging in conduct in line with obstruction of justice — but Brown J said that such allegations must be supported by the pleading of material facts.
“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. Which is unidentified,” Her Honour said in judgement.
“Having carefully considered the claim and statement of claim and the submissions of [Ms McEwan], 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.”
Brown J dismissed the application to seek leave to file the claim and statement of claim, and made no order as to costs, but added that the present determination “does not preclude the plaintiff in the future” from seeking to file further proceedings.
The proceedings follow a successful appeal lodged by Ms McEwan, in which – in late November – the QLD Court of Appeal allowed an appeal where she had submitted that immunity from liability under the Director of Public Prosecutions Act “does not extend to allegations of malicious prosecution or malfeasance in public office”.
Disclaimer: An earlier version of this story noted there were “no material facts” to support certain allegations, which has now been updated to note that said allegations must be supported by the pleading of material facts. It has also been updated to clarify that the application for leave was refused.
Lauren Croft
Lauren is a journalist at Lawyers Weekly and graduated with a Bachelor of Journalism from Macleay College. Prior to joining Lawyers Weekly, she worked as a trade journalist for media and travel industry publications and Travel Weekly. Originally born in England, Lauren enjoys trying new bars and restaurants, attending music festivals and travelling. She is also a keen snowboarder and pre-pandemic, spent a season living in a French ski resort.
