Qld Supreme Court: Dismisses McEwan v Commissioner Counsel Removal

• The Supreme Court of Queensland dismissed an application to remove senior counsel from civil proceedings in McEwan v Commissioner of Taxation [2026] QSC 258.
• The civil case alleged malicious prosecution and misfeasance against Commonwealth defendants, stemming from a state fraud charge that senior counsel had not prosecuted.
• Senior counsel had previously acted as prosecutor for a separate Commonwealth charge against the plaintiff, which was later permanently stayed.
• The court found no logical connection between counsel's prior prosecutorial role in the distinct Commonwealth matter and her current responsibilities in the civil proceedings.
• The ruling emphasizes the high threshold for courts to exercise their inherent jurisdiction to restrain legal practitioners, requiring a direct and substantial risk to the administration of justice.

Ultimately, the court concluded that a fair-minded and reasonably informed member of the public would not perceive the removal of senior counsel as essential for upholding the administration of justice.

The Supreme Court of Queensland recently dismissed an application in McEwan v Commissioner of Taxation [2026] QSC 258 that sought to remove senior counsel from representing Commonwealth defendants in a significant civil dispute. The plaintiff initiated these civil proceedings, alleging malicious prosecution misfeasance counsel against seven Commonwealth defendants. These claims stemmed from a state fraud charge that was initially brought against the plaintiff in 2018 under Queensland's Criminal Code 1899, a charge which was subsequently discontinued in 2021.

Crucially, the civil action specifically concerned the investigation and prosecution of this state charge. Separately, the plaintiff faced another charge in 2019, this time for allegedly attempting to dishonestly obtain a financial advantage from a Commonwealth entity. Senior counsel, whose removal was sought, had acted as the prosecutor for this distinct Commonwealth charge between September 2022 and April 2025. This Commonwealth prosecution was ultimately stayed permanently in October 2025, prior to the current civil proceedings.

The plaintiff advanced two primary arguments in her bid to restrain senior counsel Queensland. Firstly, she contended that senior counsel lacked the requisite objectivity to properly fulfill her professional obligations in the civil proceedings. Secondly, the plaintiff asserted that the Commonwealth defendants had deliberately retained counsel with the intention of causing her apprehension and anxiety.

To support these claims, the plaintiff referred to various observations and findings from earlier decisions related to the criminal proceedings. These included documented disputes between counsel and the plaintiff, issues concerning disclosure of information, and previously raised concerns about potential conflict of interest civil proceedings counsel. The application aimed to leverage these past interactions and perceived issues to demonstrate why counsel should be removed from the current civil matter.

The Supreme Court acknowledged its inherent jurisdiction remove legal practitioner when necessary to safeguard the proper administration of justice. However, the court underscored that this exceptional power must be exercised with considerable caution. A central element of the court's decision revolved around a critical distinction it drew between the two criminal prosecutions involving the plaintiff. The civil proceedings focused exclusively on the state fraud charge, which senior counsel had not prosecuted. This was distinct from the Commonwealth charge, where counsel had served as prosecutor.

The court found no logical connection between any alleged interest counsel might have in defending her past prosecutorial conduct and her current responsibilities in the civil proceedings. Furthermore, the court rejected the plaintiff's allegations that counsel had knowingly incorporated false or vexatious matters into the Commonwealth defendants' amended defence. It clarified that the challenged pleadings pertained to facts purportedly known to the defendants during the original investigation. The court also noted that findings from the earlier stay decision could be contested by the defendants, with these disputed matters remaining for resolution at trial. Finally, the court determined there were insufficient grounds to suggest that counsel might, as a real possibility, be called as a witness in the proceedings.

Ultimately, the court concluded that a fair-minded and reasonably informed member of the public would not perceive the removal of senior counsel as essential for upholding the administration of justice. This ruling in McEwan v Commissioner of Taxation counsel removal clarifies the high threshold required for courts to exercise their inherent jurisdiction to restrain legal practitioners in Queensland. It underscores that allegations of conflict of interest civil proceedings counsel or a perceived lack of objectivity, particularly when related to prior, distinct proceedings, are unlikely to be sufficient grounds for removal unless a direct and substantial risk to the administration of justice can be demonstrated. This decision provides important guidance for legal professionals, informing strategy for both applicants seeking to remove counsel and respondents defending against such applications.

This ruling clarifies the high threshold required for courts to exercise their inherent jurisdiction to restrain legal practitioners in Queensland, particularly when allegations of conflict of interest relate to prior, distinct proceedings. Lawyers should note that a perceived lack of objectivity or a prior prosecutorial role in an unrelated matter is unlikely to be sufficient grounds for removal unless a direct and substantial risk to the administration of justice can be demonstrated, informing strategy for both applicants and respondents in such applications.

Source: Original reporting via Australasian Lawyer