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In dismissing Appellant's orginating application, was the Appellant afforded procedural fairness by primary judge?

McEwan v Clark & Ors [2023] QCA 120 (2 June 2023)


This is an appeal from the Supreme Court of Queensland at Brisbane.


In 2019, the appellant was charged with 30 offences, alleged to have been committed under the Criminal Code (Cth) and the Criminal Code (Qld), which include allegations that she attempted to dishonestly obtain a financial advantage from the Australian Taxation Office (ATO), dishonestly influenced a Commonwealth official, and engaged in forgery and uttering.

The appellant is currently being prosecuted in the Magistrates Court with respect to those offences.

On 12 December 2022, Magistrate Saggers made two relevant orders:

(a) the first was that there be a disclosure hearing in the Magistrates Court on 9 March 2023; and
(b) the second was that the committal hearing on the charges be set down for five days commencing on 8 May 2023.

On 13 December 2022, the appellant filed an Originating Application in the Supreme Court seeking relief which can be characterised in the following way:

(a) Order 1: that the committal hearing in the Magistrates Court be delisted;

(b) Order 2: the ATO proceedings and the committal proceedings in the Magistrates Court be adjourned until a final determination is made on the appellant’s application for a permanent stay of the prosecutions in proceeding No. 9181/2022;

(c) Order 3: all outstanding disclosure listed in the Disclosure Request served on the CDPP, ATO, and the Queensland Director of Public Prosecutions (DPP) under the directions of Judge Moynihan KC dated 4 November 2022, and again served on 21 November 2022 and 9 December 2022, be provided within seven days by 20 December 2022;[3]

(d) Order 4: all outstanding disclosure listed in the Disclosure Request served on the QPS dated 9 December, and again 13 December 2022, be provided directly to the appellant within seven days by 20 December 2022;

(e) various other orders relating to disclosure in the Magistrates Court; and

(f) Order 6: the ATO proceedings be placed on the Supreme Court Supervised Case List.

On 21 December 2022, the Originating Application came before the learned primary judge.

During oral submissions before the learned primary judge, the appellant sought to join Magistrate Saggers and Magistrate Merrin. That was based on assertions of “abuse and fraud and being shut down in the Magistrates Court”.[4]

The learned primary judge:-

(a) dismissed the application for the committal proceeding to be delisted;

(b) dismissed the applications for disclosure;

(c) ordered that the appellant not file any further application in the Supreme Court, in relation to the committal proceeding presently being heard in the Magistrates Court Brisbane, without the leave of that Court; and

(d) ordered the appellant pay the Eighth and Ninth Respondents’ costs of the application.

The primary judge's approach

His Honour then expressed his findings in this way:-

“Having considered the material, I am satisfied it is not appropriate to make any of the orders sought by the applicant.

First, this Court does not use any supervisory jurisdiction to interfere with committal proceedings being conducted in another Court. That is to fragment proceedings, and it is contrary to the interests of justice.

Second, the matter of disclosure is specifically to be the subject of a determination by the Magistrates Court, prior to the hearing of that committal proceeding. It would equally be to fragment the process for this Court to interfere in that process.

In those circumstances, the application for the committal proceeding to be delisted and/or adjourned and the applications for disclosure are dismissed.”


Did primary judge deny Appellant natural justice and procedural fairness by not allowing the appellant a hearing for the Court to determine if there are exceptional circumstances warranting the committal proceedings be fragmented?


For the reasons which follow, the appellant’s contentions must be dismissed.

First, it is true to say that the essential elements of procedural fairness traditionally encompass two requirements, fairness and detachment, which relevantly involve “the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity of being heard”.

Having read the transcript of the hearing below, it cannot be concluded that there was an absence of fairness or detachment on the part of the learned primary judge. The appellant’s written submissions and affidavits were considered, she was able to make such oral submissions as she wished, and the primary judge’s engagement with her did not suggest any lack of fairness or lack of detachment. The appellant was afforded a fair hearing.

Secondly, what the appellant sought below was to have the Supreme Court interfere in the proceedings of the Magistrates Court. More particularly, the substantive proceedings below are of essentially an administrative kind, namely the conduct of a committal hearing into charges on an indictment. The appellant wrongly characterises that as an application to have the committal proceedings “uplifted to the Supreme Court for supervision”. No such application was made. The application was to have the committal proceedings delisted and adjourned pending the determination of a permanent stay application.

An application for a permanent stay had been made in the Magistrates Court, but refused by Magistrate Merrin on 1 August 2022. Whilst the stay application in the Supreme Court has previously been set for hearing, it has been adjourned pending the determination of an appeal concerning the issuing of subpoenas in that application.

Thirdly, in so far as the application below sought orders concerning disclosure relevant to the committal, both the Magistrates Court and the District Court had made relevant orders, and most importantly, a hearing had already been set in the Magistrates Court to deal with disclosure issues. The appellant was thus seeking that the Supreme Court (and now, this Court) interfere in another court’s conduct concerning matters of practice and procedure.

It is apparent that orders have been made as to disclosure in the Magistrates Court, and a hearing in that respect was set for 9 March 2023, though then adjourned. While the Magistrates Court is seized of those issues, it would be wrong of this Court to intervene absent some clear evidence warranting such a rare course of action. There is none beyond mere assertion by the appellant.

Fourthly, in so far as the orders sought below, and in this Court, concern the delisting of the committal proceeding, a permanent stay has been sought in the Supreme Court. As noted above, that application had previously been set for hearing, but adjourned pending the determination of an appeal concerning the issuing of subpoenas in that application. The orders sought from this Court would unjustifiably interfere with the due hearing of that relief.

Fifthly, the orders sought below, and in this Court, seek to overturn interlocutory orders made by the Magistrates Court. Section 222 of the Justices Act 1886 (Qld), which is the statutory source of the right to appeal orders of the Magistrates Court, does not apply to interlocutory orders.

Sixthly, beyond mere assertion by the appellant, there was no evidence of anything approaching the sort of exceptional circumstances that might justify the Supreme Court interfering in such a way that it would fragment criminal proceedings in another court. It is well established that courts should not interfere with or fracture the course of a criminal proceeding except “where the need for such interference is absolutely plain and manifestly required”. In Obeid, Gageler J adopted what was said by Kirby J in Frugtniet:

“This Court has more than once ... emphasised how rare it is to make orders which would have the effect of interfering in the conduct of a criminal trial. No case has been brought to my notice where the Court has made a stay order equivalent to the one sought on this summons. Although I do not doubt that, in a proper case, the Court would have the jurisdiction to make such an order to protect the utility of its process, it would be truly exceptional for it to do so. The Court expressed its attitude of restraint most recently in its decision in R v Elliott. There are many earlier such cases. They evidence the strong disposition of appellate courts in Australia – and especially of this Court – not to interfere in the conduct of criminal trials except in the clearest of cases where the need for such interference is absolutely plain and manifestly required. Analogous principles apply ... to the provision of a stay to prevent the commencement of a trial so as to permit a constitutional point to be argued. That point will not be lost to the plaintiff. If need be, at a later stage, it can be raised again.”

Seventhly, the appellant’s approach wrongly assumes that the Supreme Court’s supervisory jurisdiction over inferior courts is at large or unconstrained. It is not. It extends to cases where the decision of the inferior court is affected by jurisdictional error in the sense discussed in Kirk v Industrial Court (NSW)[16] and Craig v South Australia.No such jurisdictional error has been identified. A potentially erroneous decision of an inferior court acting within jurisdiction will not ordinarily be amenable to the Court’s supervisory jurisdiction.

Eighthly, the decision of the learned primary judge was made in the exercise of his Honour’s discretion. In order to succeed, the appellant would have to show error of the kind referred to in House v The King; that is to say that the learned primary judge acted on wrong principle, allowed extraneous or irrelevant matters to affect him, mistook the facts, failed to take a material consideration into account, or that the decision was plainly unreasonable or unjust, thereby bespeaking error. No such error has been demonstrated.


The appeal is dimissed.

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