Director of Public Prosecutions & Ors v McEwan [2022] QCA 142 [2022] 34 QLR

[2022] QCA 142 COURT OF APPEAL BOND JA Appeal No 6631 of 2022 SC No 971 of 2022 DIRECTOR OF PUBLIC PROSECUTIONS First Applicant EMILY McGREGOR Second Applicant ADRIAN HOLT Third Applicant v JULIE McEWAN Appellant/Respondent BRISBANE FRIDAY, 5 AUGUST 2022 JUDGMENT BOND JA: [1] The proceeding in the Court of Appeal concerns an appeal from a judgment of Martin SJA in the trial division. The appellant is self-represented. She had been charged with fraud and was found not guilty after a jury trial. Her essential complainants are that she should never have been prosecuted; the fact that she was prosecuted has caused her harm; and she should recover damages for that harm. [2] In the proceeding below, she sought to advance a number of claims for relief against – amongst other people – (a) the Director of Public Prosecutions: the eighth defendant below and the first respondent in this proceeding; (b) Ms McGregor: the DPP prosecutor involved in the prosecution, she was the ninth defendant below and is the second respondent in this proceeding; and -- 1 of 11 -- 2 (c) Mr Holt: a police officer with the Queensland Police Service, he was the tenth defendant below and was the third respondent in this proceeding. [3] The claims for relief which were advanced in relation to those individuals seem to have been claims 3, 5, 7 and 8, as recorded by the primary judge in his judgment at [5]: “3. Damages as a consequence of Malicious Prosecution $2,500,000. a. Compensatory damages $1,000,000; b. aggravated damages $950,000; c. exemplary damages $550,000. … 5. Damages for misfeasance and malfeasance in public office of Mr Rains, Ms Lukin, Ms McGregor, Ms Devereaux, Ms Williams and Ms McNaughton. … 7. An order for a direct referral for prosecution Sarah McNaughton, Katie Lukin, Roman Micairan, Jessica Williams, Roberta Devereaux and Emily McGregor pursuant to: - a. Attempting to Pervert Justice Criminal Code 1899 s140A; and or in the alternative b. Abuse of Office Criminal Code 1899 Section 92; and or in the alternative c. Misconduct in relation to public office Criminal Code s92A. 8. An order for a direct referral to the Legal Services Commission for investigation and prosecution against Sarah McNaughton, Katie Lukin, Roman Micairan, Jessica Williams, Roberta Devereaux and Emily McGregor.” [4] The primary judge’s orders in relation to those claims were: “3. Claim 3 and paragraphs 29 to 48 of the ASOC are struck out. … 5. Claim 5 is struck out. 6. Claims 7, 8, 9 and 10 are set aside. 7. Pursuant to r 293 Uniform Civil Procedure Rules 1999, judgment be given for the 8th and 9th defendants.” [5] The striking out and setting aside orders were essentially based on the views of the primary judge on what he regarded as the gross inadequacy of the pleading which was before him. The orders did not deny the opportunity to re-plead, and I have been informed that the pleading has been subsequently amended. The judgment given by order 7 was based primarily on a view that the eighth and ninth defendants had statutory immunity from suit, and that even accepting the truth of the allegations against them, the claims would inevitably fail. [6] I have before me for determination an application for security for costs of the appeal, being brought by the respondents to the appeal. -- 2 of 11 -- 3 [7] Before hearing the application, I formed the view that it was appropriate to deal with the application by reference to the appeal in the form which the appellant truly sought to advance it. Accordingly, I dealt first with the appellant’s application for leave to amend the notice of appeal, and gave leave to amend the notice of appeal. The notice of appeal as amended no longer seeks relief in relation to Mr Holt. [8] The grounds of appeal now sought to be pursued are: “2.1 His Honour erred in finding that section 25 of the Director of Public Prosecutions Act 1984 (DPP Act) operates to protect both the eighth and ninth defendants. 2.2 His Honour's conclusion that the eighth and ninth defendants are protected by section 25 of the DPP Act and is inconsistent with his finding that the allegations about the conduct of the ninth defendant are accepted. 2.3 There was an internal inconsistency within the judgement. 2.2.1 Therefore, no reasonable person when assessing the evidence as accepted by His Honour and the relevant law against the conduct of the defendants would have made the order. 2.3 His Honour should have found that the section 25 of the DPP Act does not protect the eighth and ninth defendants from liability. 2.4 His Honour should have found section 26C of [the Public Service Act 2008 (PSA Act)] does not protect the eighth and ninth defendants from liability. 2.5 There has been a serious error at law and the error causes injustice.” [9] The orders which she seeks are: “1. An order that the appeal be allowed. 2. An order that such part of the Judgment concerning the liability of the eighth and ninth defendants be set aside. 3. An order that order 7 of the Judgment be set aside. 4. An order that the eighth and ninth defendants remain as parties to the proceedings.” [10] There is no dispute about the approach which I should apply in relation to the present application. The basis for the exercise of jurisdiction is set out in r 772 of the Uniform Civil Procedure Rules, and the legal principles which apply are those set out by Morrison JA in Commercial & Process Services Australia Pty Ltd v Craven [2020] QCA 177. [11] It was suggested by the appellant that there was a principle that model litigants – and she categorised the DPP as such – should not be able to bring applications for security for costs. I do not accept that to be so as a general proposition. It does not seem to me that that argument has any relevance on this application. [12] On the material before me, the discretionary considerations which are engaged here are: -- 3 of 11 -- 4 (a) the prospects of success of the appeal; (b) the public interest of the issues sought to be ventilated on the appeal; (c) the financial position of the appellant, including whether the circumstances of which she complains might be thought to be causally significant of that financial position; (d) the appellant has already had her day in court; and (e) the quantum of any security. [13] As to quantum: (a) The amount sought it $10,000. (b) It is a modest sum, and adequately explained in the applicant respondents’ material. (c) If I were persuaded to order security I would do so in the amount sought. [14] As to financial position: (a) The appellant is a natural person who is an undischarged bankrupt. (b) The appellant has asserted without evidence that although she was made bankrupt on the petition of a creditor other than the respondents, the money she was forced to spend in defending herself in the proceeding of which she complains was part of the cause of her bankruptcy. She says that I should draw that inference merely from the fact of her bankruptcy, and from the fact that she was forced to incur costs in defending herself. I am not presently able to draw that inference. I do not think that the present material is sufficient to enable me to reach that conclusion. (c) The affidavit of the respondent reveals that the respondents, by a Crown Law letter dated 22 June 2022, raised the concerns the respondents had concerning the appellant’s ability to pay a costs order in light of the fact that she is an undischarged bankrupt, and suggested that the respondents were willing to refrain from seeking security if the appellant could provide some evidence that a costs order against her would be paid. They invited the provision of that evidence. (d) The appellant’s email response did not give any evidence of her capacity to pay. She indicated that she would not be paying for costs. I infer that she was referring to security for costs. (e) I think that, despite the modest amount sought by the respondents as security, I should infer that it is unlikely the respondents would be able to recover their costs in the event that they are successful on appeal. (f) Further, there is a risk that the order, if made, might stymie the further continuation of the appellant’s appeal. I cannot make a finding that it would necessarily have that outcome as it is theoretically possible that the undischarged bankrupt might be able to obtain money by borrowing. That seems a little unlikely, as if she is an undischarged bankrupt, any material assets would have vested in the trustee in bankruptcy so she would not be able to provide security, but the possibility remains that there might be friends or relatives, in theory, who could provide funds. I will not draw the conclusion that the order would necessarily result in a stay of the appeal, but I think there is a risk that it might. [15] The question of prospects requires more detailed consideration. [16] The respondents, in their written submissions, seek to rely on observations made in Toms v Fuller [2010] QCA 73, per Chesterman JA, with whom McMurdo P and Holmes JA agreed, at [26], that: -- 4 of 11 -- 5 “[W]here the prospects of success on appeal are “bleak”, and the appellant is without funds, there are powerful reasons for ordering security”. [17] The respondents suggest that the appellant has poor prospects on the appeal against both the DPP and Ms McGregor, relevantly submitting: “a. The conclusion reached by Martin SJA is consistent with the express language of s 25 of the DPP Act …; b. With respect to s 25, Martin SJA’s conclusion was consistent with the only decision that had previously considered the section (Richardson v State of Queensland [[2015] QDC 30]) and more importantly, the Court of Appeal decision of Colbran v State of Queensland [[2007] 2 Qd R 235].” [18] The hypothesis on which the primary judge allowed the application for judgment was to assume the truth of the allegations about the DPP and Ms McGregor and to conclude that, nevertheless, judgment should be given for reasons of statutory immunity. That means assuming the truth of a miscellany of propositions attacking the good faith of the DPP and Ms McGregor as advanced in an amended statement of claim, albeit parts which were largely struck out as inadequately pleaded. To understand the breadth and scope of the appellant’s attack on the good faith of the DPP and Ms McGregor, it is necessary to quote some parts of the pleading (noting that I would regard the reference to the defendants there as incorporating reference to the current respondents): “Malicious Prosecution 29. Further, in or about March 2018 Mr Rains regarding the plaintiff: … (h) The QPS charged the Plaintiff with fraud and the QPS, ATO, CDPP and DPP prosecuted the plaintiff for BA's fraud complaint because they allege the Plaintiff spent the BA's $185,000 on a personal loan and other expenses when: (i) [they] Knew this to be false because the $185,000 was acquitted on the Carbstarver project and BA'[s] IP protection in accordance with the Investor agreements; (ii) the defendants were able to verify payments the payments were recorded in bank statements and directly with payees against the Acquittal Email; (iii) There was no evidence any payments listed on the Acquittal Email dated 16 August 2017 were made "dishonestly"; (iv) The payments made and listed on the Acquittal spreadsheet was absent of criminality. (l) The QPS Fraud charge and prosecution was instigated by Mr Mactaggart and Mr Hoult, supported by Mr Monaghan, the QPS, Mr Holt QPS, the A TO and Mr Rains; -- 5 of 11 -- 6 (m) Ms Lukin, Ms Devereaux, Ms Williams, Mr Micairan and Ms McGregor were prosecutors who at all material times had an active role in the conduct of the prosecution against the plaintiff; (n) The CDPP Director Ms McNaughton was aware of the material facts of the fraud complaint and the evidence that exculpated the charge and cleared the plaintiff of any wrong doing against the complainant the BA; (o) The prosecution was maintained without reasonable and probable cause for some illegitimate or oblique motive; (p) there were no reasonable grounds for BA's fraud complaint and prosecution against the plaintiff and therefore destitute of reasonable cause; (q) that the aforesaid was undertaken with the intention of causing harm to the plaintiff because the State, DPP, ATO and the CDPP maintained the prosecution in the absence of any evidence of the element of dishonesty; ('malicious prosecution'); (r) the defendants Ms McNaughton, Ms Devereaux, Ms Lukin, Ms Williams, Ms McGregor and Mr Micairan by maintaining a prosecution without reasonable and probable cause was an abuse of process of the court; (i) the defendants acted outside the scope of their position in public office; (ii) the defendants held a conscious and dishonest failure to take action in knowledge of circumstances giving rise to, effective, a positive duty to take lawful preventative actions; (iii) the defendants had no right to prosecute the plaintiff, and in such circumstances had not been contracted or employed to do; (iv) knowingly or with deliberate disregard of the harm caused to the plaintiff; (v) had a duty to the plaintiff to not abuse their power in public office; and (vi) the defendant's exercise of power was invalid or otherwise lacking lawful authority by maintaining a prosecution without reasonable and probable cause, that did not meet the Directors prosecutorial guidelines. … 34. The course undertaken by the defendants pursuant to the Malicious Prosecution as particularised aforesaid: … -- 6 of 11 -- 7 (c) The dominant purpose of the prosecutors to maintain the prosecution was done for an improper purpose other than the proper invocation of the criminal law, (d) the charge and prosecution was instigated and maintained without reasonable and probable cause, a purpose other than a proper purpose; (e) upon review of all of the documents held in the possession of the defendants, there was an absence of reasonable and probable cause for the charge and prosecution; … (g) the QPS, police officer Holt, defendant prosecutors, the Director of the CDPP, the Director DPP did not honestly believe the plaintiff was guilty of the charge against the BA as particularised in the QP9 that the plaintiff spent $185,000 on a personal loan and other expenses; (i) the QPS by way of Mr Holt laid the fraud charge; (ii) prosecuted the charge without reasonable and probable cause with a conscious and contumelious disregard of the plaintiffs rights. … 35. The BA engaged GRT Lawyers and Mr Ashley Hill in February 2018 for the return of the BA's investment. During GRT's engagement with the Angels Parties: - … (g) the defendants held no honest belief in the validity of the QP9 charge particulars and prosecution against the plaintiff. (h) The defendants had an active role in the conduct of the proceedings of which was commenced and maintained against the plaintiff without reasonable and probable cause;” [19] Section 25 of the DPP Act provides: “25 Protection of persons executing Act No act or thing done or omission made by the Minister, the director or any person assisting the director for the purpose of giving effect to this Act or discharging, exercising or performing any function, power, authority or duty under this Act shall subject the Crown, the Minister, the director or any person to liability at law in respect thereof.” [20] The proper approach to the construction of such sections was recognised by the Court of Appeal in Colbran v State of Queensland [2007] 2 Qd R 235, when Williams JA cited (at 241) with approval the principle referred to by the High Court in Coco v The Queen (1994) 179 CLR 427 at 436, and Jerrard JA cited (at 251) similar principles as identified by -- 7 of 11 -- 8 Barwick CJ in Benning v Wong (1969) 122 CLR 249 at 256. It suffices to quote from Coco. In that case, Mason CJ, Brennan, Gaudron, and McHugh JJ, observed (footnotes omitted): “Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakeable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v Dillon [(1991) 171 CLR 635 at 654]: ‘[I]nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights.’” [21] The component parts of s 25 may be analysed in this way: (a) No act or thing done or admission made by [the present respondents]; (b) for the purpose of (i) giving effect to this Act, or (ii) discharging, exercising or performing any function, power, authority or duty under this Act; (c) shall subject [the present respondents] to liability at law; (d) in respect thereof. [22] I think it is strongly arguable that the proper construction of s 25 would not be to give immunity to an arguable case of malicious prosecution. Two of the critical elements of such a case are, first, that the defendant, in initiating or maintaining the proceedings, acted maliciously; and, second, that the defendant acted without reasonable and probable cause: see A v State of New South Wales (2007) 230 CLR 500 at [34]. [23] It is at least strongly arguable that the immunity conferred by s 25 is aimed at acts or omissions which are in truth done in good faith for the purposes referred to in the section. If something which was ostensibly done for such purposes, was in truth done maliciously and without reasonable and probable cause, it may follow that it is truly being done for some purpose foreign to the purposes of the Act. In such a case it seems to me to be strongly arguable that the true purposes would take the defendant outside the intended scope of the immunity. As the sole basis for the primary judge granting judgment was his view of the scope of the immunity, it would follow that an appeal which challenged that order is strongly arguable. [24] I note that the proper construction of the section may take into account the approach taken by statutes in pari materia. Those statutes were identified in the judgment of the District Court in Richardson v State of Queensland [2015] QDC 30 at [16]. Regard might also be had to the Victorian statute. Each of the statutes in pari materia confers an immunity, but it confers an immunity for conduct done in good faith. It may be thought that that provides further support for the construction that I have posited as being strongly arguable. -- 8 of 11 -- 9 [25] Of course, the observations that I have made are not a complete analysis of whether the appeal has arguable prospects. The observations I have made deal with the DPP. However, Ms McGregor might – if s 25 did not confer on her immunity – rely on s 26C of the Public Service Act which provides: “26C Civil liability of State employee for engaging in conduct in official capacity (1) A State employee does not incur civil liability for engaging, or for the result of engaging, in conduct in an official capacity. (2) If subsection (1) prevents liability attaching to a State employee, the liability attaches instead as follows— (a) if paragraph (b) does not apply—to the State; (b) if, at the time the State employee engaged in the conduct, the person did so as a member of a body corporate or the governing body of a body corporate, or as a person who was employed by, appointed by or a delegate of, a body corporate—the body corporate. (3) If liability attaches to the State under subsection (2)(a), the State may recover contribution from the State employee but only if the conduct was engaged in— (a) other than in good faith; and (b) with gross negligence. (4) If liability attaches to a body corporate under subsection (2)(b), the body corporate may recover contribution from the State employee but only if the conduct was engaged in— (a) other than in good faith; and (b) with gross negligence. (5) In a proceeding under subsection (3) or (4) to recover contribution, the amount of contribution recoverable is the amount found by the court to be just and equitable in the circumstances. (6) In this section— civil liability, of a State employee for engaging, or for the result of engaging, in conduct in an official capacity, means liability of any type for the payment of an amount by the State employee because of— (a) a claim based in tort, contract or another form of action in relation to the conduct or result, including, for example, breach of statutory duty or defamation and, for a fatal injury, includes a claim for the deceased’s dependants or estate; or -- 9 of 11 -- 10 (b) a complaint made under a law that provides a person may complain about the conduct or result to an entity established under the law, other than a complaint to start criminal proceedings, including, for example, a complaint under the Justices Act 1886; or (c) an order of a court to pay costs relating to a proceeding for an offence against a law in relation to the conduct or result, unless the proceeding was for an offence by the State employee. Examples of types of liability— • a liability because of an agreement or an order under the Anti-Discrimination Act 1991 or the Australian Human Rights Commission Act 1986 (Cwlth) requiring payment of an amount to a complainant (however described) under the Act • a liability because of an obligation under an agreement to settle a proceeding, or an order of a court or tribunal, to do something that involves paying an amount, including an obligation to rectify damage to a building or to publish an apology in a newspaper conduct means an act or an omission to perform an act. engage in conduct in an official capacity means engage in conduct as part of, or otherwise in connection with, a person’s role as a State employee, including, for example, engaging in conduct under or purportedly under an Act. Example of a State employee engaging in conduct in an official capacity— A State employee makes a decision in relation to an application for a licence. State employee see section 26B(4).” [26] The proper construction of s 26C is not presently part of this appeal. It was, however, an alternative basis for immunity raised before the primary judge, and counsel on behalf of the respondents, whilst acknowledging that to be made part of this appeal it would have to be raised by notice of contention, has intimated the respondents’ intention to raise the argument. [27] It seems to me in those circumstances that the potential application of s 26C of the Public Service Act is a relevant consideration when it comes to considering the arguability of prospects of success of the appeal from the judgment in favour of Ms McGregor. [28] As to that: (a) The wording of the immunity conferring provisions in s 26C is obviously different from the immunity conferred in s 25 of the DPP Act. -- 10 of 11 -- 11 (b) By virtue of ss 26C(3) and (4) there is a stronger basis to argue that the immunity might have been intended to cover conduct in an official capacity which was not in good faith. (c) However, I am not prepared to form a view that the contrary argument – which no doubt, if there is a notice of contention filed, would be advanced on behalf of the appellant – should be regarded as having bleak prospects. (d) I think the question of the construction of that section is a little more difficult viewed from her perspective. [29] What is possibly more significant in terms of dealing with the present application is that there is no material which suggests that there is any differential in costs, as between the existing respondents. If I were minded to refuse the application in relation to the DPP, why, it might be posited, would I allow the application in relation to Ms McGregor? [30] A further factor relevant to my discretion is the public importance or the public interest of having an authoritative statement on the proper construction of these sections. I think that there is such a public interest. I think, given the wording that I have touched upon in the course of these reasons, it is such that I should regard that as a factor favouring refusal of the application. [31] Bearing in mind the discretionary considerations that I have addressed in the course of these reasons, I form the view that the proper course is to refuse the application. [32] The order of the Court on the respondents’ application is that the application is refused. [33] There is one final matter with which I should deal, and that is that the appeal as initially formulated made Mr Holt the third respondent to the appeal. It is apparent from the form of the amended notice of appeal that the appellant no longer wishes to proceed against Mr Holt, the third respondent. An order should be made removing him as a respondent, and I make that order. [34] Counsel for the respondents sought an order for costs on the simple basis that an appeal was commenced against three parties and is now not being prosecuted against one of those parties, so that party should be able to obtain a costs order, if that party has any differential costs in its favour. There is no utility in making a “costs if any” order. I would not be inclined to make one unless I was persuaded there was actually likely to be such costs. I think the course that I will take is to adjourn the question of whether there should be a costs order consequent upon the order made removing third respondent as a respondent in the proceeding, to the Court dealing with the appeal. At that stage it might be that there can be some evidence as to whether there is any point in making such a costs order, and no doubt it will be dealt with in the context of whatever order is made in final disposition of the appeal. [35] So, in summary, the orders which I make – apart from the order made granting leave to amend the notice of appeal, which I have already made – are as follows: 1. The application for security for costs is refused. 2. The third respondent is removed as a respondent of the appeal. 3. The question of whether there should be a costs order in relation to the removal of the third respondent as a respondent in the appeal is adjourned to the Court dealing with the appeal. -- 11 of 11 --