Sherrington v ICAC & Ors

The appeal before the court concerns the decision of Burns J to dismiss an application by Ms Sherrington seeking leave to pursue a claim for damages against Mr Fleming, the Commissioner of the Independent Commission Against Corruption (ICAC), and others. Ms Sherrington, who was the principal of Milingimbi School, is contesting the outcome of an investigation conducted by ICAC into her conduct during her tenure at the school. The investigation led to the publication of a Public Statement (PS) by Mr Fleming, which Ms Sherrington alleges contains defamatory content and was published with malicious intent. She argues that the PS was published with bad faith, constituting the tort of misfeasance in public office, and seeks damages for the harm caused by its publication.

The legal issues before the court were whether Ms Sherrington had demonstrated substantial reasons to believe that Mr Fleming held the requisite subjective state of mind that constituted bad faith, and whether the primary Judge had erred in dismissing her application for leave to pursue her claim. The court considered whether the PS contained defamatory content, the proper test for bad faith in the context of misfeasance in public office, and whether Ms Sherrington's allegations regarding the conduct of the investigation were relevant to her claim against Mr Fleming. The court also examined whether the primary Judge had properly considered Ms Sherrington's case and whether her allegations were sufficiently particularised.

The court found that Ms Sherrington had failed to demonstrate substantial reasons to believe that Mr Fleming held the requisite subjective state of mind that constituted bad faith. The court noted that the PS, while containing some negative statements about Ms Sherrington, did not amount to defamation as it was substantially true. Regarding bad faith, the court emphasised that it must be of the kind that underpins the tort of misfeasance in public office, which can take the form of malicious intent, acting with knowledge that one lacks power, or recklessly disregarding the means of ascertaining the extent of one's power. The court held that Ms Sherrington's allegations did not engage with this form of bad faith and instead focused on alleged deficiencies in the conduct of the investigation, which was not the pleaded cause of her damages. The court also found that the primary Judge had properly considered Ms Sherrington's case and that her allegations were not sufficiently particularised to support her claim. Consequently, the appeal was dismissed.

The court ordered that the first defendant be removed as a party to the proceeding and that the notice of appeal be dismissed. The court reserved the decision on whether Ms Sherrington should be ordered to pay the costs of the appeal and her application for leave to appeal.