McGee v Independent Assessor

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.