Court finds no real risk that counsel's previous prosecutorial role would compromise her objectivity
The Supreme Court of Queensland has dismissed an application to restrain senior counsel from representing Commonwealth defendants in civil proceedings alleging malicious prosecution and misfeasance in public office.
In McEwan v Commissioner of Taxation [2026] QSC 258, the court found that the plaintiff had not established grounds for preventing counsel from continuing to act.
The proceedings arose from a state fraud charge laid against the plaintiff in 2018 under the Criminal Code 1899 (Qld). The prosecution discontinued that charge in 2021.
The plaintiff subsequently pursued civil claims against seven Commonwealth defendants, alleging their involvement in investigating and prosecuting the state charge.
Separately, authorities charged the plaintiff in 2019 with dishonestly attempting to obtain a financial advantage from a Commonwealth entity. Senior counsel acted as prosecutor for the Commonwealth charge between September 2022 and April 2025. The court permanently stayed the Commonwealth prosecution in October 2025.
The plaintiff sought to restrain counsel on two principal grounds. She argued that counsel lacked the objectivity required to fulfil her professional duties and that the Commonwealth defendants had retained her to cause apprehension and anxiety.
The plaintiff relied on observations and findings from earlier decisions concerning the criminal proceedings, including disputes between counsel and the plaintiff, disclosure issues, and concerns about potential conflicts of interest.
The Supreme Court confirmed that courts possess inherent jurisdiction to restrain legal practitioners where necessary to protect the proper administration of justice. However, it emphasised that courts must exercise this exceptional jurisdiction cautiously.
The court found a critical distinction between the two prosecutions. The civil proceedings concerned the state charge, which senior counsel had not prosecuted, rather than her conduct of the separate Commonwealth prosecution.
It found no logical connection between counsel's alleged interest in defending her previous prosecutorial conduct and her responsibilities in the civil proceedings.
The court also rejected allegations that counsel had knowingly included false or vexatious matters in the Commonwealth defendants' amended defence. It found that the challenged pleadings concerned facts allegedly known to the defendants during the relevant investigation.
The court noted that the defendants could contest findings from the earlier stay decision, with the disputed matters remaining for trial.
The court also found insufficient grounds for counsel to believe that she might, as a real possibility, become a witness in the proceedings.
The court concluded that a fair-minded, reasonably informed member of the public would not consider counsel's removal necessary to protect the administration of justice. It dismissed the plaintiff's amended application.
