McGee v Independent Assessor & Anor - [2022] QSC 257

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 257
Decision Date: 26 October 2022

CaseChat Overview and Summary

The case of McGee v Independent Assessor & Anor involved a jurisdictional challenge to an application brought by the first respondent, the Independent Assessor, against the applicant, a local government councilor. The challenge was predicated on the applicant's alleged misconduct during a meeting on 28 November 2017, and the court was tasked with determining whether the conduct could be reasonably considered as misconduct and if the application itself was an abuse of process. The matter was heard in a relevant Australian court, where the jurisdictional authority was examined.

The central legal issues before the court involved assessing the nature of the alleged misconduct and whether it could be reasonably substantiated based on the facts presented. Furthermore, the court had to decide if the application filed by the first respondent to the second respondent constituted an abuse of process. The court's analysis was rooted in understanding the implications of the alleged misconduct and the procedural fairness of the application process itself.

In delivering the judgment, the court clarified that its observations regarding the policy and the conduct of the meeting were not intended as a criticism of either the policy or the applicant. The jurisdictional challenge was evaluated based on the unchallenged facts presented. The court found that the making of the application was not an abuse of process and dismissed the jurisdictional challenge. The application was consequently dismissed, and the court ordered that the applicant pay the first respondent's costs of and incidental to the application, subject to potential re-evaluation by the parties.

The court's final orders included dismissing the application filed on 9 October 2020, directing the applicant to pay the first respondent's costs assessed on the standard basis, and granting liberty to the parties to apply in writing within 14 days for a different order concerning costs. This decision underscores the court's role in ensuring that jurisdictional challenges are appropriately scrutinized while maintaining procedural fairness in the process.

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.