McEwan v Merrin (Magistrate) and Ors [2023] QSC 6 – Be careful how you draft!

11 May 2023
Scott Couper, Partner, Brisbane

McEwan v Merrin (Magistrate) & Ors [2023] QSC 6 is a judgment by Brown J in the Supreme Court of Queensland where the matter for decision was whether leave should be given to issue a claim and statement of claim (together, the claim) under rule 15 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). The issue of leave arose for the filing of the claim in a lengthy multi-party claim ‘of some complexity’ [at 23] involving the Queensland Police Service, the Australian Taxation Office, the Commonwealth’s Director of Public Prosecutions and the Director of Public Prosecutions [at 24].

The Plaintiff was self-represented and the matter of the application for the filing of the claim had earlier been referred to Justice Williams of the Court who ordered that the originating process should not be issued without leave of the Court pursuant to rule 15 of the UCPR. It was this leave that the plaintiff was seeking in this decision.

Brown J decided that leave to issue the claim should not be granted as the claim was not pleaded in such ‘a comprehensible and precise form to enable a party to identify the claims made against them’ [at 22].

In the circumstances of ‘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,’ these allegations must be ‘supported by material facts in the absence of which they are scandalous’ [at 33].

Brown J held that the claim did not disclose a reasonable cause of action on their face and that it was not required for the history of the matter, rather than the pleading of material facts, to be considered in reaching her decision. Her Honour held that ‘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’ [at 23]. Her Honour held that the specificity of the facts relied upon had not been pleaded with sufficient particularity and were ‘interspersed with what appears to be commentary and argument by the plaintiff’ [at 26].

It should be noted that Brown J was not reviewing Williams J original decision pursuant to rule 15 of UCPR where her Honour ‘directed the Registrar [of the Court] to refuse to file the originating process without leave of the Court’ [at 2]. It was this requirement for leave of the Court which lead to the plaintiff’s application before Brown J for the necessary leave to be obtained.

The plaintiff was a self-represented litigant who was unfamiliar with the requirements involved with pleading a cause of action and the need for the articulation of material facts in support of that cause of action. In this case, the alleged cause of action was the tort of misfeasance in public office by each of the defendants.

The key issue that the plaintiff failed to confront in her pleadings was that even if there was an invalid or unauthorised act by a public officer in the purported discharge of their duties, and that this act actually caused loss to this plaintiff, that it was done ‘maliciously’. Justice Brown referred to the High Court decision in Northern Territory v Mengel (1995) 185 CLR 307 (Mengel) at 370.

Her Honour referred in particular to Brennan J’s decision in Mengel as to what is required for an invalid or unauthorised act to be performed maliciously. Brennan J held that for an invalid or unauthorised act to be performed maliciously, it would have to be done with ‘malice, knowledge and reckless indifference’ to ‘stamp on a purported but invalid exercise of power the character or abuse of the misfeasance of public office.’

As the majority in Mengel determined (being Mason CJ, Dawson, Toohey, Gaudron, and McHugh JJ) misfeasance in public office is a tort for which the public officer is liable personally, and the act must be done ‘with reckless indifference to the harm which is likely to ensue’.

Brown J held that her determination would not preclude the plaintiff in the future from seeking to file a claim in proper form [at 35].

Key Takeaway

The key takeaway from the decision in McEwan v Merrin (Magistrate) & Ors [2023] QSC 6 is that the drafting of a claim must occur cognisant of the cause of action which is sought to be established with material facts being identified which support the elements of that cause of action.

As a practical matter, it is yet again a reminder of the value of legal services in assisting a plaintiff in seeking the justice they believe they deserve.

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Authored by: 
Scott Couper, Partner
Elizabeth Ziegler, Senior Associate

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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