Swalling v Independent Assessor

[2024] QCAT 467

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Swalling v Independent Assessor [2024] QCAT 467

PARTIES:

JOHN DANE SWALLING

(applicant)

v

INDEPENDENT ASSESSOR

(first respondent)

COUNCILLOR CONDUCT TRIBUNAL

(second respondent)

APPLICATION NO:

GAR 24 of 2021

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 November 2024 (ex tempore)

HEARING DATE:

6 November 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member the Hon P J Murphy SC
A/Senior Member Lember

ORDERS:

1. Pursuant to s 24(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision of the Councillor Conduct Tribunal made 28 October 2024 is set aside.

2. Pursuant to s 114 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the first respondent’s application made 9 October 2019 to the second respondent to decide whether the applicant has engaged in misconduct is permanently stayed.

3.     No order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — where the applicant applied for review of a decision made by the second respondent — where the Tribunal is bound by Court of Appeal authority — where the instant case before the Tribunal is virtually indistinguishable from authority — where the decision under review is an abuse of process — where the decision is set aside

ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — extent and purpose of ancillary powers — whether the Tribunal can order a stay of the application by the first respondent to the second respondent that ultimately produced the decision under review — whether there is sufficient connection between the ancillary order and primary power — whether this would enlarge the Tribunal’s powers — application below permanently stayed

Local Government Act 2009 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

McGee v Independent Assessor [2023] QCA 225

Seaview Park v Furness [2022] QCATA 177

APPEARANCES & REPRESENTATION:
Applicant:	T Ritchie instructed by McKays Solicitors
Respondent:	P Shariti and F Banwell, legal officers of the Office of the Independent Assessor

REASONS FOR DECISION

1. The issues in this review of a decision of the Councillor Conduct Tribunal (CCT) constituted under the Local Government Act 2009 (Qld) (LGA) flow from a decision of the Queensland Court of Appeal in McGee v Independent Assessor.[1]

   [1][2023] QCA 225 (‘McGee’).

2. The parties are agreed that the decision in McGee, and the facts and circumstances of this case, compel this Tribunal to conclude the orders of the CCT should be set aside.   They are agreed as to the factual matters relevant to this Tribunal’s review, the evidence for which is set out in the parties’ submissions.

3. In consequence, the parties contend:

   QCAT should decide to set aside the decision under review and remit the matter to the CCT.[2]

   [2]Applicant’s Submissions filed 5 November 2024, [35].

4. The parties’ agreed position derives from the joint contention that the decision in McGee establishes principles which bind the Tribunal in the instant case, the relevant…