Hestbay Pty Ltd v One Sector Pty Ltd - [2022] QSC 25

SUPREME COURT OF QUEENSLAND

CITATION:

McGee v Independent Assessor & Anor [2022] QSC 257

PARTIES:

Damien McGee

(Applicant)

v
Independent Assessor

(First Respondent)

Councillor Conduct Tribunal

(Second Respondent)

FILE NO/S:

SC No 986 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application For Review

ORIGINATING COURT:

Supreme Court of Queensland at Townsville

DELIVERED ON:

26 October 2022

DELIVERED AT:

Townsville

HEARING DATES:

5 February, 2 March, 4,5 May 2021

JUDGE:

North J

ORDER:

1.   Application filed 9 October 2020 dismissed.

2.   The applicant pay the first respondent’s costs of and incidental to the application to be assessed on the standard basis.

3.   Liberty to apply in writing within 14 days with respect to costs.

CATCHWORDS:

MISCODUCT BY LOCAL GOVERNMENT CONCILOR – WHETHER CONDUCT ALLEGED CAPABLE OF CONSTITUTING MISCONDUCT – WHETHER THE RESPONDENT COULD BE REASONSBILY SATISFIED THAT THE APPLICANT ENGAGED IN MISCONDUCT ON THE FACTS ALLEGED – WHETHER THE APPLICATION BY THE FIRST RESPONDENT TO THE SECOND RESPONDENT SHOULD BE PERMANTELY STAYED AS AN ABUSE OF PROCESS.

Rogers v The Queen (1994) 181 CLR 251.
Clayton v Bant (2020) 272 CLR 1.
Ramsay v Pigram (1967-1968) 118 CLR 271.
Kuligowski v Metrobus (2004) 220 CLR 363.
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507.
ASIC v Helou [2019] FCA 1634.

Strickland v Director of Public Prosecutions (2018) 93 ALJR 1.

Director of Public Prosecutions (SA) v Jaunay & Anor [2020] SASCFC 25.
Minister for Immigration and Border Protection v Stretton (2016) F
329 ALR 491.
Minister for Immigration and Citizenship v Li and Another (2013) HCA 18.

COUNSEL:

Mr Forbes for the Applicant on 5 February and 2 March 2021.
Mr Savage QC and Mr Forbes for the Applicant on 4 and 5 May 2021.
Mr Keim SC for the First Respondent.
No appearance for the Second Respondent.

SOLICITORS:

Connolly Suthers Lawyers for the Applicant.
Office of the Independent Assessor for the First Respondent.
Submitting appearance for the Second Respondent.

Introduction

At the 2016 Local Government elections the applicant was elected as a councillor of the Cloncurry Shire Council. On 28 November 2017 he attended an ordinary council meeting and participated in the meeting. During the meeting he advanced a motion;
“That the Procurement Policy COR1004 Version 4 be adopted as presented”
The motion was seconded and was carried.
The first respondent is established by section 150CT of the Local Government Act 2009 (‘LGA’) and one of the functions it is to prosecute offences against the conduct provisions of the LGA (see section 150CU(1)(c)). The second respondent is established by section 150DK. The first respondent claims to be “reasonably satisfied” that the applicant engaged in misconduct in participating in the meeting (see section 150AI) and has applied to the Councillor Conduct Tribunal (the second respondent, see section 150DK) to decide whether the applicant has engaged in misconduct (See section 150AJ, see also section 150W). If the first respondent is reasonably satisfied that a councillor has engaged in misconduct (see section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QSC 25
Decision Date: 26 October 2022

CaseChat Overview and Summary

The case of Hestbay Pty Ltd v One Sector Pty Ltd involved the applicant, Hestbay Pty Ltd, contesting the decision made by One Sector Pty Ltd, a local council, to deny their application for a permit. The applicant argued that the local government councilor's conduct during a meeting on 28 November 2017 constituted misconduct and that the application by the first respondent to the second respondent should be permanently stayed as an abuse of process. The primary concern was whether the conduct alleged by the applicant could be considered misconduct and whether the respondent could reasonably believe that the applicant engaged in misconduct based on the facts presented.

The court examined the nature of the allegations of misconduct by the councilor and whether the application for the permit was an abuse of process. The applicant argued that the councilor's conduct during the meeting was inappropriate and that the application was made in bad faith. The court needed to determine whether the applicant's jurisdictional challenge was valid and whether the application itself was an abuse of process.

The court found that the policy and conduct of the meeting on 28 November 2017 did not constitute misconduct, and the applicant's jurisdictional challenge failed. The court held that the making of the application was not an abuse of process, and the application should be dismissed. The court also ordered that the applicant pay the first respondent's costs of and incidental to the application, to be assessed on the standard basis. The court gave liberty to apply in writing within 14 days with respect to costs.

Orders

Orders of the court

1. Application filed 9 October 2020 dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application to be assessed on the standard basis.

3. Liberty to apply in writing within 14 days with respect to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The observation I have made concerning the policy and the conduct of the meeting on 28 November 2017 should not be interpreted as an implied criticism of the policy considered. There may be sound community and economic reasons for such a policy in a community such as Cloncurry. Nor should my reasons imply a finding critical of the applicant. The jurisdictional challenge to the application by the first respondent has been made upon the basis of unchallenged assumed facts before me.Conclusion The jurisdictional challenge to the application has failed. The making of the application has not been shown to be an abuse of process. The application should be dismissed. In my view costs should follow the event but I will give some leave to the parties to submit for a different order if desired.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McGee v Independent Assessor & Anor [2022] QSC 257
PARTIES:	Damien McGee (Applicant) v Independent Assessor (First Respondent) Councillor Conduct Tribunal (Second Respondent)
FILE NO/S:	SC No 986 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application For Review
ORIGINATING COURT:	Supreme Court of Queensland at Townsville
DELIVERED ON:	26 October 2022
DELIVERED AT:	Townsville
HEARING DATES:	5 February, 2 March, 4,5 May 2021
JUDGE:	North J
ORDER:	1. Application filed 9 October 2020 dismissed. 2. The applicant pay the first respondent’s costs of and incidental to the application to be assessed on the standard basis. 3. Liberty to apply in writing within 14 days with respect to costs.
CATCHWORDS:	MISCODUCT BY LOCAL GOVERNMENT CONCILOR – WHETHER CONDUCT ALLEGED CAPABLE OF CONSTITUTING MISCONDUCT – WHETHER THE RESPONDENT COULD BE REASONSBILY SATISFIED THAT THE APPLICANT ENGAGED IN MISCONDUCT ON THE FACTS ALLEGED – WHETHER THE APPLICATION BY THE FIRST RESPONDENT TO THE SECOND RESPONDENT SHOULD BE PERMANTELY STAYED AS AN ABUSE OF PROCESS. Rogers v The Queen (1994) 181 CLR 251. Clayton v Bant (2020) 272 CLR 1. Ramsay v Pigram (1967-1968) 118 CLR 271. Kuligowski v Metrobus (2004) 220 CLR 363. Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507. ASIC v Helou [2019] FCA 1634. Strickland v Director of Public Prosecutions (2018) 93 ALJR 1. Director of Public Prosecutions (SA) v Jaunay & Anor [2020] SASCFC 25. Minister for Immigration and Border Protection v Stretton (2016) F 329 ALR 491. Minister for Immigration and Citizenship v Li and Another (2013) HCA 18.
COUNSEL:	Mr Forbes for the Applicant on 5 February and 2 March 2021. Mr Savage QC and Mr Forbes for the Applicant on 4 and 5 May 2021. Mr Keim SC for the First Respondent. No appearance for the Second Respondent.
SOLICITORS:	Connolly Suthers Lawyers for the Applicant. Office of the Independent Assessor for the First Respondent. Submitting appearance for the Second Respondent.