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A woman suing the Commonwealth over an allegedly malicious prosecution has failed in a bid to have senior counsel removed from the case, arguing the barrister lacked objectivity and was motivated by animus towards her.
Julie McEwan’s bid to have a barrister removed from a case seeking damages from Commonwealth officials was dismissed by Justice Sean Cooper in the Supreme Court of Queensland, with the judge finding insufficient evidence that the barrister lacked objectivity or was motivated by hostility towards the plaintiff.
McEwan was charged with fraud under Queensland law in 2018 (the State Charge), which was discontinued in 2021, and with a separate Commonwealth offence in 2019, which the barrister prosecuted until April 2025 before Smith J permanently stayed it in October 2025.
In a recent case held in October this year, McEwan requested that the court remove the barrister from representing Commonwealth officials, claiming that she was biased and would use the case to defend her past conduct as a prosecutor.
The Commonwealth defendants argued there was no reason to remove the barrister from the case, and the judge agreed, ruling McEwan had insufficient evidence to justify her removal.
Justice Cooper explained that a barrister can be removed from a case if necessary to ensure a fair trial, but only in exceptional circumstances, citing the cases Grimwade, Kallinicos, and Dealer Support Services. The judge said barristers should only be removed in exceptional circumstances to protect justice.
McEwan argued that the barrister should be removed because of their “disharmony” and apprehensions around a potential conflict of interest and the barrister’s attempt to change the details of a discontinued fraud charge.
She also referred to her previous case in which the barrister was the prosecutor, and relied on the judge’s findings that the prosecution’s conduct amounted to “undue oppression” and put “the system of justice at risk”.
The judge considered the previous cases of Grimwade and MG v R, where barristers were found to risk lacking objectivity because of their involvement in earlier criminal proceedings.
However, unlike those cases, the barrister had not prosecuted the same Queensland fraud charge involved in McEwan’s civil lawsuit, so there was no direct link showing that she would use the civil case to defend her past conduct.
The judge found no “logical connection” between the barrister’s prosecution of the separate Commonwealth Charge and the civil proceedings, concluding that there was insufficient basis to find she would lack objectivity or seek to defend her past conduct.
McEwan’s argument that the barrister had a personal interest or conflict of interest that would affect her fairness in the civil case was ultimately rejected.
The judge found no “real risk” that the barrister would be unable to act with the expected “objectivity and detachment”, noting that she had not “pleaded any allegations which she knew to be false” and that pleading matters contrary to earlier findings was not “evidence of animus towards the plaintiff”.
The application of McEwan was dismissed, finding that a reasonably informed member of the public would not conclude that justice required the barrister to be disqualified from acting for the Commonwealth defendants.
The judge has not yet decided who must pay the legal costs of the case.
Citation: McEwan v Commissioner of Taxation [2026] QSC 258
