Background
Julie McEwan brought civil claims, including malicious prosecution and misfeasance in public office, against the Commissioner of Taxation and six other Commonwealth defendants. The claims arose from a Queensland fraud charge laid against her in 2018 and discontinued in 2021. She separately faced a Commonwealth charge laid in 2019, the prosecution of which was permanently stayed in 2025.
McEwan applied to restrain Patricia McDonald SC from continuing to represent the Commonwealth defendants. McDonald had previously prosecuted the Commonwealth charge from about September 2022 until April 2025. McEwan argued that McDonald lacked the necessary objectivity, that her engagement was intended to cause McEwan apprehension and anxiety, and, in supplementary submissions, that McDonald might be called as a witness.
McEwan relied in part on observations about McDonald’s conduct in the earlier recusal decision, including her attempt to change the particulars of the discontinued State charge and her resistance to producing a witness statement. She also relied on findings in the decision permanently staying the Commonwealth prosecution and on allegations in the Commonwealth defendants’ further amended defence.
The Court’s Holding
Cooper J dismissed the application. The Court applied the objective test of whether a fair-minded, reasonably informed member of the public would conclude that restraining counsel was required to protect the proper administration and appearance of justice. That inherent jurisdiction is exceptional, must be exercised cautiously, and must account for the public interest in permitting a litigant to retain counsel of its choice.
The Court held that there was no logical connection between McDonald’s asserted interest in defending her conduct as prosecutor of the Commonwealth charge and her work in this civil proceeding, which concerned the separate State charge that she had not prosecuted. Although the earlier Recusal Decision expressly examined aspects of McDonald’s conduct, Cooper J regarded the disputed steps concerning the particulars and witness statement as procedural matters involving robust submissions, not conduct establishing impropriety or a lack of objectivity. The Stay Decision’s criticism of disclosure failures focused on Mr Rains and others, and was not reasonably attributable to McDonald personally.
The pleadings did not establish animus or an improper collateral purpose. They alleged facts said to have been known to the Commonwealth defendants at the relevant earlier times, and references to McEwan’s husband were incidental rather than allegations of wrongdoing by him. Findings in the stay proceeding did not bind the Commonwealth defendants by issue estoppel, as previously decided in McEwan v Commissioner of Taxation & Ors [2026] QSC 104. Nor did the evidence establish a real possibility that McDonald would be a witness in the civil case.
Key Takeaways
- An adverse party seeking to disqualify opposing counsel must satisfy an exceptional, objectively assessed standard focused on the proper administration and appearance of justice.
- Prior involvement in a related prosecution does not itself justify restraint; there must be a logical connection between counsel’s personal interest and a real risk of departure from counsel’s duties in the current proceeding.
- Judicial scrutiny of counsel’s procedural decisions in an earlier case will not establish disqualifying impropriety where the circumstances do not demonstrate a lack of objectivity or detachment.
Why It Matters
The decision illustrates the high threshold for restraining an opponent’s chosen counsel outside the usual settings of confidential information or conflicting duties. Even where counsel acted in related criminal litigation and aspects of that conduct were examined by another judge, restraint requires a concrete connection between counsel’s asserted personal interest and the risk to the fair conduct of the present case.
It also distinguishes allegations relevant to the ultimate merits of a defence from evidence that counsel acted with animus or for a collateral purpose. Disputed pleadings and factual positions ordinarily remain matters for trial unless their formulation itself demonstrates the exceptional risk required for disqualification.