SUPREME COURT OF QUEENSLAND
CITATION:
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…
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- Case
- [2022] QSC 25
- Decision Date
CaseChat Overview and Summary
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
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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