Berridge v The Independent Assessor

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SUPREME COURT OF QUEENSLAND

CITATION:

Berridge v The Independent Assessor & Anor [2023] QSC 228

PARTIES:

ADELIA BERRIDGE

(applicant)

v
THE INDEPENDENT ASSESSOR

(first respondent)

AND

THE COUNCILLOR CONDUCT TRIBUNAL

(second respondent)

FILE NO/S:

7243 of 2023

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

13 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2023

JUDGE:

Muir J

ORDER:

1.   The application is dismissed

2.   I will hear the parties about costs

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – GENERALLY – where the first respondent received a notification about the misconduct of the applicant arising from statements on the applicant’s Facebook page – where the applicant applies for a review of a decision by the first respondent that she was reasonably satisfied that the applicant had engaged in misconduct and she would make an application referring the notification to the second respondent – where the sole ground of review relied upon by the applicant is that the first respondent erred by failing to take a relevant consideration into account – where the applicant claims the first respondent failed to consider the applicant’s submissions in response to the allegations of misconduct – whether any failure to consider the submissions in response was material to the decision

Judicial Review Act 1991 (Qld), ss 20(2)(e), 23(b)
Local Government Act 2009 (Qld), ss 150AA, 150AJ, 150AK, 150AL 150B, 150K, 150L, 150O, 150R, 150T, 150W, 150Y, 150X

Buck v Bavone (1976) 135 CLR 110
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 325; [2017] FCAFC 107

Cuvegen v Secretary to Department of Education and Training [2021] VSC 524

DV016 v Minister for Immigration and Border Protection & Anor (2021) 273 CLR 177; (2021) HCA 12
East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605

Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98
McGee v Independent Assessor & Anor [2022] QSC 257

Minister for Home Affairs v Ogawa (2019) 269 FCR 536; (2019) FCAFC 98 [101]
Minister for Immigration & Border Protection v Maioha (2018) 267 FCR 643; [2018] FCAFC 216

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Ethnic Affairs v Lu Shan Liang (1996) 185 CLR259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8
R v Westminster City Council ex-parte Ermakov (1996) 2 All ER 302
Scott v Commissioner for State Revenue (Qld) [2016] QSC 132
Singh v Minister for Home Affairs [2019] 267 FCR 200; [2019] FCAFC 3
Topouzakis v Greater Geelong City Council (2014) 202 LGERA 123; (2014) VSC 87

COUNSEL:

H Clift for the applicant
S J Keim SC with O Cook for the first respondent
No appearance for the second…

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Details
Case
[2023] QSC 228
Decision Date

CaseChat Overview and Summary

The case of Berridge v The Independent Assessor involves the applicant, Adelia Berridge, who sought a review of a decision made by the first respondent, the Independent Assessor, regarding alleged misconduct arising from statements made on the applicant's Facebook page. The applicant's primary contention was that the first respondent had failed to consider her submissions in response to the allegations of misconduct, which she argued was a material error in the decision-making process. The matter was heard and determined by the court, which was tasked with deciding whether the first respondent's failure to consider the applicant's submissions was indeed a material error and if so, whether it warranted a review of the decision.

The court examined the legislative framework under which the first respondent operated, particularly focusing on section 150AA(3) of the Local Government Act 2009, which mandates the consideration of the applicant's submissions before making a decision. The court scrutinised whether the first respondent had complied with this statutory requirement and, if not, whether such non-compliance was material to the decision. The court also considered the nature and extent of the applicant's submissions and whether they were adequately addressed by the first respondent in reaching the decision. The court's analysis hinged on whether the first respondent's failure to fully consider the submissions was significant enough to influence the outcome of the decision.

After thorough examination, the court concluded that the first respondent's decision was not materially affected by the failure to fully consider the applicant's submissions. The court found that the first respondent had indeed reviewed the submissions but did not deem their consideration as crucial to the decision. The court held that the evidence provided by the first respondent was sufficient to support the conclusion that the applicant had engaged in misconduct, regardless of the submissions. Consequently, the court dismissed the applicant's application for judicial review and ordered that the application be dismissed with no order as to costs.

Orders

Orders of the court

1. The application is dismissed

2. I will hear the parties about costs

Background

Background to the litigation

As set out in the introduction above, the crux of this case turns on whether the mandatory requirement under s 150AA(3) for the first respondent to “consider” the submissions in response “before making the decision” has been complied with. This begs the obvious question – what does such a consideration entail? Before answering this question, it is necessary to set out the relevant factual background to the decision, the decision itself and the request for a statement of reasons.Relevant facts About 18 months after the applicant published her post, filming ceased at the site. In early June 2022, the Redland City Bulletin published an article about a proposal by the applicant for a wildlife hospital to be established at the site. On 15 June 2022, the applicant moved a motion at a general meeting that Council find a suitable site for a wildlife hospital. On 16 June 2022, the first respondent received the notification. About a month later, on 14 July 2022, the first respondent first wrote to the applicant to tell her that she had received the notification and that she had formed the view that the complaint involved suspected misconduct and that she had decided to undertake an investigation into the matter. This letter identified that the allegation included that the applicant had made the following three categories of statements about the lease at the site that were false and misleading:(a)First: three posts on her Councillor Facebook page as follows:(i)“It was rushed through and I was told no time to look at other locations”;(ii)“No information was available as to how the land will be restored back”;(iii)“I saw no accounting information of what the 8 week production per year will bring to our economy, only the lease income” and “no details of an economic benefit beyond the lease of the land was detailed or presented or supplied to Councillors even though it was questioned”[5]. (b)Secondly: the media article quoted the applicant as nominating the Holey Moley site as a suitable location for a wildlife hospital stating “[t]hat area is now sitting vacant and this is just one area we could look at.” (c)Thirdly: The media article was shared via the Facebook page of a local lobby group with the applicant commenting on this thread that, “[w]e cleared a number of trees for Holy Moly [sic] and what did it return? It was a quick decision, no one saw coming”. [5]Applicant’s affidavit, Exhibit AB-1. In that letter, the first respondent provided the applicant with the information she had about the complaint and the reasons why the matters, the subject of the complaint, may be misconduct.[6] The letter also gave the applicant the choice of requesting the matter be referred to the second respondent without further investigation, or to provide information relevant to a further investigation. [6]Applicant’s affidavit, Exhibit AB-1, Annexure A. That same day, the applicant sent an email back to the first respondent advising that she would be going with “Option 2 as this is a poor excuse of a complaint and is what I believe to be another retaliation from [another councillor]…” [7][7]Florien affidavit page 98. The applicant did not object to this part of the affidavit.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This letter acknowledged the fact that the s 150AA Notice did not include two previous allegations that had been contained in the letters of 14 July and 21 December.The Decision and subsequent application to the second respondent Just prior to 31 March 2023, the first respondent made a decision under s 150W(1)(c) to make an application to the second respondent about the applicant’s conduct. There is no requirement under the LGA to give the applicant notice of that decision. On 31 March 2023, the first respondent then made an application to the Tribunal under s 150AJ(2) of the LGA. The application referred one allegation of conduct as follows:“Conduct the subject of this ApplicationIt is alleged that on or about 13 September 2020, Councillor Adelia Berridge, of Redland City Council, engaged in misconduct as defined in section 150L(1)(b)(i) of the Local Government Act 2009 (Qld) (the Act), in that her conduct involved a breach of the trust placed in her as a councillor, either knowingly or recklessly, in that is was inconsistent with the local government principle in section 4(2)(e) ‘ethical and legal behaviour of councillors and local government employees’ on the basis that she made false and/or misleading statements on social media”. The facts underpinning the alleged misconduct in support of the allegation are set out in considerable detail as particulars in the application, the final one being as follows:[12] “The statement posted on Councillor Berridge’s Facebook page were false and/or misleading, as Councillor Berridge had been provided with relevant information on the Lease, in relation to the economic benefit to Council and restoration of the Land, as outlined in paragraphs “b” to “m” above.” [12]Page 6 item “q” of the application (page 33 of Exhibit AB-6). The application is signed by the first respondent and on the last page states as follows:[13][13]Applicant’s affidavit, Exhibit AB-10.“Information forming part of this ApplicationAnnexure A to this Application is a Statement of Facts that sets out:·Details of a complaint received and investigated by the Office of the Independent Assessor (OIA) in relation to the above matter.·The allegation of misconduct and associated particulars the subject of this Application.·The facts and circumstances of this matter relied on in proof of the allegation of misconduct being the facts and circumstances that form the basis for my reasonable satisfaction.Annexure B to this application is a Notice and Opportunity to Respond provided to the subject councillor on 2 February 2023, pursuant to s 150AA of the Act which included a draft statement of facts and required the subject councillor’s response by 16 February 2023.Annexure C to this application is the responses to ‘Annexure B’ and requests for extension of time submitted by and on behalf of the subject Councillor received by the OIA via email up until 1 March 2023.[14]Annexure D to this application is a brief of evidence prepared by the OIA in relation to this matter.Statement of Independent Assessor pursuant to s 150AJ[14]The material at annexures A–D included the applicant’s submissions of 7 February 2023 and 1 March 2023 response.Based on the material contained in Annexures A – D of this Application, I am reasonably satisfied that the subject councillor has engaged in misconduct and hereby refer this matter to the tribunal to decide whether the councillor has engaged in misconduct.”Request for a statement of reasons under the JRA

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.