Independent Assessor v FJS - [2023] QCAT 244

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Independent Assessor v FJS [2023] QCAT 244

PARTIES:

INDEPENDENT ASSESSOR

(applicant)

v

COUNCILLOR CONDUCT TRIBUNAL

(first respondent)

FJS

(second respondent)

APPLICATION NO/S:

GAR377/21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 July 2023

HEARING DATE:

27 March 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.     Decision of the first respondent of 17 May 2021, that the allegations of the applicant that the second respondent had been guilty of misconduct were not sustained, confirmed.

2.     If either party seeks an order for costs, that party must provide submissions in writing supporting such an order to the associate to the Deputy President and to the other party within twenty-one days of this decision.

3.     If such submissions are provided, the other party may provide submissions in writing in response to the associate and to the party applying within twenty-one days of receiving such submissions.

4.     Any submissions in writing in reply are to be provided within seven days of receiving the submissions in response.

5. If submissions seeking costs are received, the Appeal Tribunal will decide the question of costs on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

LOCAL GOVERNMENT – REGULATION AND ADMINISTRATION – COUNCILLORS AND MEMBERS – RIGHTS, DUTIES AND INCIDENTS OF OFFICE – DISQUALIFICATION FROM VOTING – INTEREST IN MATTER OR CONTRACT – STATUTORY DISCLOSURE OBLIGATIONS – OTHER MATTERS – whether misconduct – councillor unaware of facts showing private interest – whether obligation to declare interest – whether conflict of interest

STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF ACTS – GENERALLY – definition sections retained by transitional provision – whether such definitions made retrospective – content of Explanatory Notes – definitions not previously retrospective – effect of amendments

Local Government Act 2009 (Qld) s 150AT, s 173, s 176, s 316, s 322.
Legislative Standards Act 1992 (Qld) s 23(1)(f).

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Aurizon Network Pty Ltd v Queensland Competition Authority [2018] QSC 246
Australian Education Union v Fair Work Australia (2012) 246 CLR 117
Corr and Local Government Standards Panel [2014] WASAT 86
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Isbester v Knox City Council (2015) 255 CLR 135
Johnson v Johnson (2000) 201 CLR 488
Lacey v Attorney-General of Queensland (2011) 242 CLR 573
Meineke v Acting Chief Executive, Office of Local Government [2016] NSWCATOD 135
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427
Prince Jefri Bolkiah v KPMG [1999] 2 AC 222
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v A2 (2019) 269 CLR 507
R v GT [2005] QCA 478
R v Home Secretary; ex parte Simms [2000] 2 AC 115

APPEARANCES & REPRESENTATION:

Applicant:

S J Keim SC and M R Wilkinson, instructed by the Office of the Independent Assessor.

Respondent:

J T Dillon instructed by…

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: [2023] QCAT 244
Decision Date: 11 July 2023

CaseChat Overview and Summary

In the case of Independent Assessor v FJS, the appellant, an independent assessor, sought to overturn a decision by the first respondent that the second respondent, a councillor, had not been guilty of misconduct. The dispute centred on whether the councillor had failed to disclose a conflict of interest, as well as whether there had been any misconduct in the statutory obligations of disclosure. The matter was heard and determined by the Queensland Civil and Administrative Tribunal.

The primary legal issues the tribunal had to address were whether the councillor was obligated to disclose a private interest that he was unaware of, and whether such an undisclosed interest constituted a conflict. Additionally, the tribunal examined the retrospective application of certain definitions in the Local Government Act 2009 (Qld) and the implications of the Explanatory Notes on the interpretation of these definitions.

The tribunal concluded that the councillor was not aware of the facts giving rise to the private interest and therefore did not have an obligation to declare it. The tribunal further found that, given the councillor's lack of awareness, there was no conflict of interest. Regarding the statutory definitions, the tribunal determined that the Explanatory Notes did not support a retrospective application of the definitions, and thus the amendments did not apply in a manner that would affect the outcome of the case. Consequently, the tribunal upheld the decision of the first respondent, finding no misconduct on the part of the second respondent.

The tribunal's final orders included the confirmation of the first respondent's decision, as well as provisions for the potential ordering of costs, including written submissions and timelines for both parties. The tribunal reserved the right to decide on costs if submissions were made, in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

Orders

Orders of the court

1. Decision of the first respondent of 17 May 2021, that the allegations of the applicant that the second respondent had been guilty of misconduct were not sustained, confirmed.

2. If either party seeks an order for costs, that party must provide submissions in writing supporting such an order to the associate to the Deputy President and to the other party within twenty-one days of this decision.

3. If such submissions are provided, the other party may provide submissions in writing in response to the associate and to the party applying within twenty-one days of receiving such submissions.

4. Any submissions in writing in reply are to be provided within seven days of receiving the submissions in response.

5. If submissions seeking costs are received, the Appeal Tribunal will decide the question of costs on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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