McGee v Independent Assessor

Case [2023] QCA 225

SUPREME COURT OF QUEENSLAND

CITATION:

McGee v Independent Assessor & Anor [2023] QCA 225

PARTIES:

DAMIEN McGEE
(appellant)
v
INDEPENDENT ASSESSOR
(first respondent)
COUNCILLOR CONDUCT TRIBUNAL
(second respondent)

FILE NO/S:

Appeal No 14216 of 2022
SC No 986 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Townsville – [2022] QSC 257 (North J)

DELIVERED ON:

17 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2023

JUDGES:

Bond and Dalton JJA and Cooper J

ORDERS:

1.   The appeal is allowed.

2.   The first respondent’s application dated 4 October 2019 to the second respondent to decide whether the appellant has engaged in misconduct, being exhibit ASB-30 to the affidavit of Amanda Selina Bridgeman filed 25 January 2021, be permanently stayed.

3.   By 4.00 pm on 24 November 2023, the appellant file and serve any affidavits and submissions on the costs of the appeal and the hearing below.

4.   By 4.00 pm on 1 December 2023, the first respondent file and serve any affidavits and submissions on the costs of the appeal and the hearing below.

5.   By 4.00 pm on 8 December 2023, the appellant file and serve any affidavits and submissions in reply on the costs of the appeal and the hearing below.

6.   The question of costs of the appeal and the hearing below will be determined on the papers.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – GENERALLY – where the appellant was a councillor during a period he owned an air-conditioning and electrical contracting business – where the appellant’s business provided services to the council – where two complaints of misconduct were made about the appellant having voted in favour of the council adopting a procurement policy which conferred an advantage on his business – where the first complaint was found not to be sustained by a review panel – where an application has been made to have the second respondent determine the second complaint – where the appellant commenced proceedings seeking to stay the second complaint as an abuse of process – where the appellant argued that the decision to refer the second complaint for determination was in jurisdictional error – where the application was dismissed and the appellant appealed that decision – whether the referral of the second complaint should be stayed as an abuse of process

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27, cited
Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1, cited
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, applied
Nash v R [2019] NSWCCA 124, considered
R v Carroll (2002) 213 CLR 635; [2002] HCA 55, considered
R v Gilham (2007) 73 NSWLR 308; [2007] NSWCCA 323, cited
R v P, NJ (No 2) (2007) 99 SASR 1; [2007]…

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Details
AGLC
McGee v Independent Assessor [2023] QCA 225
Case
[2023] QCA 225
Decision Date

CaseChat Overview and Summary

McGee, a former councillor and business owner, was involved in a dispute with the Independent Assessor regarding complaints of misconduct. The appellant, who owned an air-conditioning and electrical contracting business, was alleged to have voted in favour of a council procurement policy that conferred an advantage on his business. The first complaint was found not to be sustained, but a second complaint was referred to the Independent Assessor. The appellant sought to stay the second complaint on the grounds of abuse of process, arguing that the referral was in jurisdictional error. The application to stay the complaint was dismissed, and the appellant appealed that decision.

The court was required to determine whether the referral of the second complaint should be stayed as an abuse of process. This involved examining the five propositions advanced by the appellant to establish unreasonableness or jurisdictional error in the decision to refer the complaint. The court also needed to consider whether the primary judge was correct in rejecting the unreasonableness argument.

The court concluded that none of the five propositions established unreasonableness or jurisdictional error in the decision to refer the second complaint. Had the appellant not succeeded on his abuse of process argument, he would not have established error on the part of the primary judge in rejecting the unreasonableness argument. The appeal was allowed, and the first respondent's application to the Independent Assessor was permanently stayed. The court set deadlines for the filing of affidavits and submissions on the costs of the appeal and the hearing below, with the final decision on costs to be determined on the papers.

Orders

Orders of the court

1. The appeal is allowed.

2. The first respondent’s application dated 4 October 2019 to the second respondent to decide whether the appellant has engaged in misconduct, being exhibit ASB-30 to the affidavit of Amanda Selina Bridgeman filed 25 January 2021, be permanently stayed.

3. By 4.00 pm on 24 November 2023, the appellant file and serve any affidavits and submissions on the costs of the appeal and the hearing below.

4. By 4.00 pm on 1 December 2023, the first respondent file and serve any affidavits and submissions on the costs of the appeal and the hearing below.

5. By 4.00 pm on 8 December 2023, the appellant file and serve any affidavits and submissions in reply on the costs of the appeal and the hearing below.

6. The question of costs of the appeal and the hearing below will be determined on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In summary, none of the five propositions advanced by the appellant establish unreasonableness or jurisdictional error in the Assessor’s decision to make the application. Had the appellant not succeeded on his abuse of process argument, he would not have established error on the part of the primary judge in rejecting the unreasonableness argument.Conclusion The orders I propose are:1.The appeal is allowed.2.The first respondent’s application dated 4 October 2019 to the second respondent to decide whether the appellant has engaged in misconduct, being exhibit ASB-30 to the affidavit of Amanda Selina Bridgeman filed 25 January 2021, be permanently stayed.3.By 4.00 pm on 24 November 2023, the appellant file and serve any affidavits and submissions on the costs of the appeal and the hearing below.4.By 4.00 pm on 1 December 2023, the first respondent file and serve any affidavits and submissions on the costs of the appeal and the hearing below.5.By 4.00 pm on 8 December 2023, the appellant file and serve any affidavits and submissions in reply on the costs of the appeal and the hearing below.6.The question of costs of the appeal and the hearing below will be determined on the papers.

Ratio Decidendi

Legal Principle Established

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