McGee v Independent Assessor[2023] QCA 225

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  The appellant invokes the general supervisory jurisdiction of the Supreme Court of Queensland over the respondents.  In exercise of that jurisdiction the appellant seeks an order staying an application which the first respondent has before the second respondent on abuse of process grounds.  The respondents to this appeal accepted that the Supreme Court had supervisory jurisdiction over the first and second respondents, essentially in reliance on Walton v Gardiner.^[1]
2. [2]
   However, in Walton v Gardiner the judgment of the plurality assumed the existence of jurisdiction, noting that their Honours did not read any of the provisions of the relevant Act as expressly or impliedly cutting down that jurisdiction.^[2]  The same cannot be said about the provisions of the legislative framework which is presently relevant.  As Cooper J has noted, the presently relevant legislative framework contains operative privative provisions.
3. [3]
   Whether, after Kirk v Industrial Court (NSW),^[3] such privative provisions could have any effect on what would otherwise be the general jurisdiction of the Supreme Court to order a stay on abuse of process grounds was not the subject of argument before this Court.  Nor was the question whether, even if they could, they should be so construed.
4. [4]
   On the assumption that there is jurisdiction to do so (which, as I have observed, the respondents have been content to make), I agree with Cooper J for the reasons which he gives that the jurisdiction should be exercised in this case and in the manner which he proposes.

5. [5]
   DALTON JA:  I agree with the orders proposed by Cooper J and with his reasons.
6. [6]
   COOPER J:  The appellant was a councillor of the Cloncurry Shire Council (Council) between 2016 and 2020.  During that period, he also owned an air-conditioning and electrical contracting business which provided services to the Council.  Complaints of misconduct were made about the appellant having voted, on two separate occasions, in favour of the Council adopting a procurement policy which conferred an advantage on his own business.
7. [7]
   The first complaint was dealt with by the Department of Infrastructure, Local Government and Planning (Department).  It was referred to a Regional Conduct Review Panel (Panel) which found, by majority, that the complaint of misconduct was not sustained.
8. [8]
   The second complaint is presently being dealt with by the first respondent, the Office of the Independent Assessor (Assessor).^[4]  The Assessor has applied to have the second respondent, the Councillor Conduct Tribunal (Tribunal), determine the second complaint and decide whether the appellant has engaged in misconduct.  As will be seen, although the conduct founding this second complaint was essentially the same as gave rise to the earlier complaint, the assertion of misconduct is based on a different statutory obligation.
9. [9]
   The appellant commenced proceedings seeking to stay the prosecution of the second complaint as an abuse of process.  He also argued that the decision of the Assessor to refer the second complaint for determination was irrational or unreasonable and, consequently, was infected with jurisdictional error because the Assessor could not be “reasonably satisfied” of the necessary jurisdictional fact: namely, that the appellant engaged in misconduct.
10. [10]
    The learned primary judge dismissed the application.  By the present appeal, the appellant seeks to reverse that outcome.
11. [11]
    For the following reasons, the appeal should be allowed and the referral of the second complaint to the Tribunal should be stayed as an abuse of process.

The legislative framework for the complaints

12. [12]
    On the hearing below and on this appeal, it was common ground that the first complaint fell to be determined, and the second complaint falls to be determined, under provisions in Chapter 6, Division 5 of the LGA which governed the obligations of councillors prior to 3 December 2018.^[5]
13. [13]
    Section 172 addressed the situation where a councillor had a material personal interest in a matter which was to be discussed at a council meeting.  A councillor would have a material personal interest in the matter if the councillor stood to gain a benefit or suffer a loss, either directly or indirectly, depending upon the outcome of the consideration of the matter.^[6]  Where a councillor had a material personal interest in a matter then, subject to an ability to obtain an approval from the Minister which is not presently relevant, the councillor was required to inform the meeting of his or her material personal interest in the matter and to leave the meeting room while the matter was being discussed and voted on.^[7]  Importantly for this appeal, s 172(3) provided that a councillor did not have a material personal interest in a matter:

“…if the councillor has no greater personal interest in the matter than that of other persons in the local government area.”

14. [14]
    Section 173 addressed the situation where a councillor had a real or perceived conflict of interest in a matter which was to be discussed at a council meeting.  A conflict of interest was defined as a conflict between a councillor’s personal interests and the public interest that might lead to a decision that is contrary to the public interest.^[8]  Where a councillor had a real or perceived conflict of interest, the councillor was required to deal with that conflict in a transparent and accountable way.^[9]  At a minimum, that required that the councillor inform the meeting of his or her personal interest in the matter and, if the councillor proposed to participate in the meeting, how he or she intended to deal with the conflict.^[10]  Again, it is important for the purposes of this appeal to note s 173(3)(b) which provided that a councillor would not have a conflict of interest in a matter:

“… if the councillor has no greater personal interest in the matter than that of other persons in the local government area.”

15. [15]
    The effect of ss 172(3) and 173(3)(b) is that a councillor who had “no greater personal interest in the matter than that of other persons in the local government area”:

    1. had no material personal interest in the matter for the purposes of s 172; and
    2. did not have a conflict of interest in the matter for the purposes of s 173,

such that the obligations otherwise imposed by those provisions would not apply in respect of the relevant matter.

16. [16]
    Although contravention of s 173(4) was not an offence, it was expressly defined as misconduct on the part of a councillor.^[11]
17. [17]
    Although voting on a matter in which a councillor had a material personal interest in contravention of s 172(5) constituted an offence it was not expressly defined as misconduct.  Nevertheless, it seems clear that such conduct would fall within the following descriptions in the definition of misconduct:

    1. conduct that could adversely affect the honest and impartial performance of the councillor’s responsibilities or exercise of the councillor’s powers;^[12]
    2. conduct that involves the performance of the councillor’s responsibilities, or the exercise of the councillor’s powers, in a way that is not honest or impartial;^[13] or
    3. conduct that involves a breach of the trust placed in the councillor.^[14]
18. [18]
    Complaints of misconduct by a councillor could be heard and determined by a regional conduct review panel established under Chapter 6, Part 4 of the LGA or, for the most serious complaints of misconduct, by the local government remuneration and discipline tribunal established under Chapter 6, Part 3 of the LGA.^[15]  A decision by either a panel or the tribunal was declared not to be subject to appeal.^[16]  The effect of this was that such a decision could not be “appealed against, challenged, reviewed, quashed, set aside, or called into question in any way”.^[17]

The first complaint

19. [19]
    On 20 December 2016, a Council meeting was held at which the councillors considered whether to adopt a new procurement policy (the 2016 policy).  The 2016 policy excluded businesses which did not have a head office within Cloncurry Shire from receiving a financial advantage for local businesses by amending the definition of “Local Business/Supplier” to be:

“A business/supplier that is majority owned by a resident or ratepayer in the local government area of Cloncurry Shire.  The head office is to be within Cloncurry Shire and operating from a compliant business premises.”

20. [20]
    The Local Business/Supplier Advantage conferred by the 2016 policy was:

    1. nil for purchases with a value of $50 or less;
    2. 20% based on the quoted price for purchases with a value between $51 and $15,000;
    3. 10% based on the quoted price for purchases with a value between $15,001 and $199,999;
    4. a 20% weighting under the criteria of Local Business in the assessment of tenders for purchases with a value of $200,000 or more, with a Local Business/Supplier given a score of 5 (out of 5) for that criteria and non-local business/suppliers given a score of 0.
21. [21]
    The appellant owned several corporate entities which provided air-conditioning and electrical contracting services under the name “Oz E Cool”.  The Oz E Cool business undertook substantial work for the Council.  In the period between 1 July 2015 and 18 December 2016, it issued invoices to the Council totalling $1,964,100.83 and received payments from the Council totalling $1,921,666.13.  The appellant had disclosed the relevant interests in a register of interests maintained by the Council.
22. [22]
    The Oz E Cool business met the requirements of a Local Business/Supplier under the 2016 policy.  Although there was no evidence of the value of individual contracts performed by the Oz E Cool business for the Council, the application below and this appeal were conducted on the basis that the relevant financial advantage conferred on it by the 2016 policy in tendering for Council work was 20% of the quoted price.
23. [23]
    The appellant did not declare any personal interest when the Council considered whether to adopt the 2016 policy.  All councillors, including the appellant, voted to adopt the 2016 policy.
24. [24]
    On 11 April 2017, the Council wrote to Mr Bennett, who resided in Cloncurry Shire and operated an electrical business which employed local residents but whose head office was outside the Shire.  The Council advised Mr Bennett that his business did not qualify as a local business under the 2016 policy.  Mr Bennett wrote a response to the Council in which he complained that the appellant had a conflict of interest because, by reason of the new definition of local business, the 2016 policy would confer a 20% pricing advantage on Oz E Cool over Mr Bennett’s business, which competed with Oz E Cool for Council work.  At about the same time, Mr Bennett also complained to the Crime and Corruption Commission (CCC) about the appellant’s conduct.
25. [25]
    On 26 May 2017, the Council referred Mr Bennett’s complaint to the Department for its consideration.
26. [26]
    In June 2017, there was correspondence between the Department and the CCC concerning Mr Bennett’s complaint.  The outcome of this appears to have been that the CCC also referred the complaint it received to be dealt with by the Department.
27. [27]
    On 12 February 2018, the Department decided to refer the first complaint to the Panel for hearing and determination and wrote to both the appellant and the chief executive officer of the Council, Mr Milligan, informing them of its decision.
28. [28]
    The misconduct alleged in the referral was stated to be as follows:

“It is alleged Councillor McGee engaged in corrupt conduct when he failed to declare a material personal interest (MPI) in relation to a Local Government Procurement Policy that provided 20% default weighting for local businesses over their competitors.  Councillor McGee has a local business.”

29. [29]
    The particulars of the first complaint included a statement of the Department’s view that there was sufficient evidence to establish that the appellant breached s 172 of the LGA by voting to adopt the 2016 policy and thereby obtain a competitive advantage for the Oz E Cool business from the amended definition of “Local Business/Supplier”.
30. [30]
    On 7 May 2018, a majority of the Panel decided that the allegation of misconduct arising from the first complaint was not sustained.  After examining the legislative history of s 172 of the LGA, including the Explanatory Notes for the Local Government and Other Legislation Amendment Bill 2012 (Qld) which introduced s 172(3), the majority stated their reasons as follows:^[18]

“The benefits of [the 2016 policy] could be enjoyed equally by any and all businesses/suppliers who, presently or in the future whilst [the 2016 policy] was in force, met the definition of local business/supplier.  Every person in the Council’s local government area had an equal/common interest in the matter of the Council’s review and adoption of [the 2016 policy].  There is nothing in [the 2016 policy] that gives Cr. McGee’s business a greater or additional benefit or interest than that which is common [to] all other persons, whether currently or in the future businesses/suppliers, in the Council’s local government area.

Consequently, the majority of the Panel finds that Cr. McGee, at the special general meeting of the Council on 20 December 2016, had no greater personal interest in the matter of [the 2016 policy] than that of other persons in the local government area and, pursuant to subsection 172(3) of the Act did not have a MPI in the matter requiring him to declare a MPI.”

The second complaint

31. [31]
    On 28 November 2017, prior to the referral of the first complaint to the Panel, a Council meeting was held at which the councillors considered whether to adopt a further revised procurement policy (the 2017 policy).  At that time the appellant was not aware that the first complaint of misconduct had been made, and no one who attended the meeting informed him of the existence of that complaint.  The effect of the 2017 policy was to create two levels of local businesses.  A Local Supplier Level 1 was a business with a head office in Cloncurry Shire.  A Local Supplier Level 2 was a business which operated from local premises and employed local staff but whose head office was outside Cloncurry Shire.
32. [32]
    The Local Business/Supplier Advantage conferred by the 2017 policy was:

    1. nil for purchases with a value of $50 or less;
    2. for purchases with a value between $51 and $15,000, 20% based on the quoted price for a Local Supplier Level 1 and 10% based on the quoted price for a Local Supplier Level 2;
    3. for purchases with a value between $15,001 and $199,999, 10% based on the quoted price for a Local Supplier Level 1 and 5% based on the quoted price for a Local Supplier Level 2;
    4. a 30% weighting under the criteria of Local Business in the assessment of tenders for purchases with a value of $200,000 or more, with a Local Supplier Level 1 given a score of 5 (out of 5) for that criteria, a Local Supplier Level 2 given a score of 2.5 and non-local business/suppliers given a score of 0.
33. [33]
    The effect of the alterations made to the 2017 policy was to permit businesses which did not meet the head office requirement of the Local Business/Supplier definition in the 2016 policy to access half of the local supplier advantage.
34. [34]
    The appellant’s Oz E Cool business met the description of a Local Supplier Level 1 under the 2017 policy and thereby continued to receive the same local advantage as had been conferred by the 2016 policy.  However, its comparative advantage over businesses which now met the requirements of a Local Supplier Level 2 was halved.
35. [35]
    The appellant did not declare any personal interest when the Council considered whether to adopt the 2017 policy.  All councillors, including the appellant, voted to adopt the 2017 policy.
36. [36]
    On 30 November 2017, Mr Milligan provided information to the Department about the Council meeting on 28 November 2017, including that the appellant did not declare an interest in the adoption of the 2017 policy.  The Department did not record this as a complaint about the appellant’s conduct at that time.
37. [37]
    After Mr Milligan received notice of the Department’s decision to refer the first complaint to the Panel (see [27] above), he wrote to the Department, referring to his earlier correspondence concerning the meeting on 28 November 2017, and asked whether the referral to the Panel related to that later meeting as well as the 20 December 2016 meeting at which the 2016 policy was adopted.  After further correspondence with the Department, Mr Milligan confirmed that he had made a complaint about the appellant’s failure to declare his interest when the 2017 policy was adopted.
38. [38]
    On 24 April 2018, the acting Director-General of the Department decided to refer the second complaint to the CCC as suspected corrupt conduct.
39. [39]
    On 3 October 2018, the CCC wrote to the Department advising that it had carefully considered the concerns regarding the appellant’s conduct arising from the first complaint and the second complaint.  The CCC noted that the allegation of misconduct arising from the first complaint were dealt with by the Panel, with the majority finding that the allegation was not sustained.  The CCC stated that it held concerns about that finding and the reasons given by the majority of the Panel and sought the Department’s advice about what appeal options, if any, were available to have that finding reconsidered.  Finally, the CCC advised that it considered it appropriate for the Department to deal with the allegation of misconduct arising from the second complaint.
40. [40]
    The Department responded to the CCC by letter dated 11 October 2018 stating, among other things, that the Department shared the CCC’s concerns about the decision of the Panel dated 7 May 2018 but that the decision was not subject to appeal, referring to ss 176(9) and 244 of the LGA.
41. [41]
    The Assessor was created when substantial amendments to the LGA took effect on 3 December 2018 and, thereafter, became responsible for undertaking the councillor complaints function previously performed by the Department.  The second complaint was referred to the Assessor as part of this transition.
42. [42]
    On 22 January 2019, the Assessor wrote to the appellant advising him that it had decided to investigate the second complaint because, having considered the information provided to it, it reasonably suspected that the complaint, if proven, involved misconduct contrary to s 173 of the LGA.
43. [43]
    The Assessor wrote to the appellant again on 30 August 2019, informing him that it was reasonably satisfied that his conduct was misconduct and that it was considering making an application to the Tribunal to deal with the matter.  Before doing so, the Assessor was required to provide the appellant with an opportunity to provide a statement or information about the alleged conduct and to say why the Assessor should not refer the second complaint to the Tribunal to be dealt with.  The alleged misconduct was described in the following terms:

“It is alleged that on 28 November 2017, Councillor McGee, a councillor of the Cloncurry Shire Council, engaged in misconduct as defined in section 176(3)(b)(ii) of the [LGA], in that his conduct contravened section 173(4), which was in force at that time, to deal with the real or perceived conflict of interest in a transparent and accountable way.”

44. [44]
    On 3 September 2019, the appellant provided his statement in response to the Assessor.  That statement referred, among other things, to the decision of the Panel that the first complaint had not been sustained.  It extracted the reasons of the majority for that decision (see [30] above).  It also referred to the wording used in s 173(3)(b), as well as in s 172(3): that a councillor does not have a conflict of interest in a matter if the councillor “has no greater personal interest in the matter than that of other persons in the local government area”.
45. [45]
    On 4 October 2019, the Assessor applied to the Tribunal to hear and determine the allegation of misconduct arising from the second complaint.  The allegation of misconduct was expressed in the same terms as had been previously provided to the appellant (see [43] above).
46. [46]
    The particulars of the alleged conduct which could amount to misconduct were stated to be:

    1. the adoption of the 2017 policy at the Council meeting on 28 November 2017;
    2. the change to the definition of “Local Supplier” in the 2017 policy to create two levels of local suppliers and the amount of local advantage to which a business qualifying for the respective levels of local supplier would be entitled;
    3. the matter was not an ordinary business matter;
    4. the appellant attended the Council meeting;
    5. the appellant is the owner of the Oz E Cool business which had supplied services to the Council since 2015;
    6. the appellant’s personal interest in the matter did not arise merely because of the circumstances specified in s 173(3) of the LGA;
    7. the appellant’s personal interest in the matter could be considered a real conflict of interest or a perceived conflict of interest because under the 2017 policy the Oz E Cool business qualified as a Local Supplier Level 1;
    8. as a Local Supplier Level 1, the Oz E Cool business had an advantage over Local Suppliers Level 2 and over non-local suppliers;
    9. at the Council meeting on 28 November 2017, the appellant did not deal with the real conflict of interest or perceived conflict of interest in a transparent and accountable way.
47. [47]
    The application attached a Statement of Facts (Annexure A), the notice providing the appellant with an opportunity to respond to the allegation (Annexure B), the appellant’s response to the allegation (Annexure C) and the brief of evidence prepared by the Assessor in relation to the matter (Annexure D).  It also included, as required by s 150AJ of the LGA, a statement that, based upon the material contained in those annexures, the delegate of the Assessor was reasonably satisfied that the appellant had engaged in misconduct and referred the matter to the Tribunal to decide that issue.

The primary judge’s reasons

48. [48]
    On the question of abuse of process, the primary judge acknowledged that the complaints involved conduct that had strikingly similar features but nevertheless found that, because they each concerned a different meeting, a different procurement policy and a different legislative provision asserting a different form of misconduct, the Assessor’s decision to refer the second complaint did not involve unfairness or unconscientious conduct calling for the court’s intervention and did not amount to a collateral attempt to impugn the Panel’s determination of the first complaint.
49. [49]
    As to the unreasonableness argument, the primary judge concluded that the facts relied upon by the Assessor in deciding to refer the second complaint to the Tribunal provided a basis for it to be reasonably satisfied that the appellant had engaged in misconduct regarding the adoption of the 2017 policy.

Appeal grounds

50. [50]
    The appellant relies on two substantive grounds of appeal which reflect his arguments below.  Ground 1 asserts that the primary judge erred in law in failing to find that the prosecution of the second complaint is an abuse of process.  Ground 3 asserts that the learned primary judge erred in law in finding that the Assessor could have been reasonably satisfied that the appellant’s conduct concerning the 2017 policy amounted to misconduct.
51. [51]
    The appellant also raised two grounds of appeal, grounds 2 and 4, concerning the adequacy of the reasons given by the primary judge for the conclusions he reached on the two substantive issues.  During argument on the hearing of the appeal, Mr Savage KC, who appeared with Ms Ahern and Mr White of counsel for the appellant, accepted that grounds 2 and 4 do not add anything to the two substantive grounds.^[19]  It is therefore not necessary for this court to consider them further.

Abuse of process – relevant principles

52. [52]
    The doctrine of abuse of process is informed in part by considerations of finality and fairness.  The doctrine is capable of application in circumstances in which a subsequent proceeding would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.  Consequently, it has been recognised that raising an issue which was made or raised and determined in an earlier proceeding can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.  That is so even if the party seeking to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.^[20]
53. [53]
    The appellant placed particular emphasis upon three High Court cases as authority for the proposition that, in certain circumstances, it may be an abuse of process for a prosecuting authority to seek to re-litigate in a subsequent proceeding an issue which was decided in a previous proceeding: Walton v Gardiner,^[21] Rogers v The Queen^[22] and R v Carroll.^[23]
54. [54]
    In Walton, complaints referred to the New South Wales Medical Tribunal in 1986 alleging misconduct in the treatment of patients had been permanently stayed as an abuse of process because of the prolonged delay in making the complaints after the relevant facts were known.  Fresh complaints were then made in 1991 against the same medical practitioners.  Those complaints were not the same as the earlier complaints but arose out of the same pattern of professional conduct which had given rise to the earlier complaints and raised issues which substantially overlapped with those that would have arisen under the earlier complaints.  A majority of the High Court upheld the decision of the New South Wales Court of Appeal to stay the fresh complaints on the ground that they were so unfairly and unjustly oppressive as to constitute an abuse of process.
55. [55]
    The majority stated that the inherent jurisdiction of a superior court to stay proceedings on grounds of abuse of process:^[24]

“extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.”

56. [56]
    Their Honours then went on to say:^[25]

“[P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”

57. [57]
    The majority held that the concept of abuse of process also applied to the Medical Tribunal but that its application required some adjustment to reflect the fact that, although the Tribunal was not a court, its jurisdiction was protective of the public, noting:^[26]

“[T]he question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations.  Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.  The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings.  In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.”

58. [58]
    The majority also accepted that, in the weighing process their Honours described, regard could be had to the notions of fairness to an accused person which underlie the common law principle against double jeopardy, stating:^[27]

“The earlier jeopardy of loss of the right to practise and of pecuniary penalty to which the respondents had been subjected in the proceedings based on particular allegations involving the use of deep sleep therapy and associated electro-convulsive therapy on particular patients at Chelmsford prior to 1979, were renewed in the proceedings based on more generalized and wider, but essentially similar, complaints.  It is true that the absence of an earlier hearing on the merits and the variations between personal complainants and the details of the complaints mean that, even if a strict rule against double jeopardy is applicable to proceedings in the Tribunal, the current proceedings would not fall within it.  The sense of injustice which inspires the doctrine against double jeopardy was, however, plainly present in large measure.  It was … ‘an important factor to be weighed in the balance’.”

59. [59]
    In Rogers, there had been a finding in an earlier criminal trial that records of interview were not made voluntarily and, consequently, were inadmissible.  Following that finding, the appellant was acquitted of two counts of armed robbery.  The appellant was later indicted on different charges of armed robbery.  At the subsequent trial, the prosecution proposed to rely upon admissions contained in the same records of interview which had previously been held inadmissible.  A majority of the High Court held that this would constitute a direct challenge to the earlier determination of admissibility and would amount to an abuse of process.
60. [60]
    Deane and Gaudron JJ stated:^[28]

“Strictly, the 1989 ruling on voluntariness was concerned only with those parts of the records of interview relevant to the offences for which the appellant then stood trial.  However and as already indicated, the statements which the prosecution wishes to tender in the appellant's forthcoming trial are, so far as voluntariness is concerned, exactly the same as those tendered in the 1989 proceedings.  In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned.  The challenge is one which invites ‘the scandal of conflicting decisions’.  And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and where there is no claim of ‘fresh evidence’ or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness.”

61. [61]
    Mason CJ, who agreed with the reasons of Deane and Gaudron JJ, observed that the statements of the majority in Walton extracted at [55] above indicate that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.  His Honour concluded:^[29]

“The tendering of the confessions by the prosecution was vexatious, oppressive and unfair to the appellant in that it exposed him to re-litigation of the issue of the voluntariness of the confessional statements in the records of interview.  This issue had already been conclusively decided in the appellant's favour because the confessions sought to be tendered — although relating to different crimes — were made at the same time and in exactly the same circumstances as the confessions that were the subject of the voir dire.  Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue.”

62. [62]
    In Carroll, the respondent’s conviction for murder had been quashed on appeal and a verdict of not guilty had been entered.  At his trial he had given evidence that he did not kill the victim.  This evidence was directed to the only issue at the trial, namely whether the respondent killed the victim.  The respondent was later charged with perjury in respect of the evidence he gave at his murder trial.  The High Court held that the perjury indictment was an abuse of process and should have been permanently stayed because conviction on that indictment would contradict the respondent’s earlier acquittal of murder in circumstances where both charges raised the same ultimate issue.
63. [63]
    Gleeson CJ and Hayne J concluded that, on the facts in Carroll, there was “manifest inconsistency” between the charge of perjury and the acquittal of murder.^[30]  However, their Honours accepted that a second prosecution may be oppressive and an abuse of process “even though there is no direct inconsistency between the new charge and the earlier verdict”.^[31]  Where it is said that the second prosecution seeks to controvert an earlier verdict of acquittal it is necessary to consider the elements of the relevant offences, there being “much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged”.^[32]  That is because “it is what is decided in litigation that is final” and cannot be controverted.^[33]  Their Honours also accepted that the “[f]inality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision”,^[34] giving the example of cases where similar fact evidence was tendered even though the accused had been acquitted of an offence said to be constituted by that conduct.
64. [64]
    Gaudron and Gummow JJ, citing Walton and Rogers, stated that the laying of the perjury indictment in Carroll “was vexatious or oppressive in the sense necessary to constitute an abuse of process; in substance, there was an attempt to re-litigate the earlier prosecution.”^[35]
65. [65]
    McHugh J also concluded that a conviction for perjury, where the perjury consisted of a denial that the respondent killed the victim, would be a direct contradiction of the acquittal for murder and the perjury proceedings should be stayed as an abuse of process.^[36]
66. [66]
    The High Court’s reasoning in Carroll has been considered on a number of occasions by intermediate appellate courts.
67. [67]
    In R v Gilham,^[37] McClellan CJ at CL (with whom Hidden and Latham JJ agreed) reviewed the reasons in Carroll and observed that the incontrovertibility principle discussed in those reasons will be engaged if one or more of the elements necessary to establish the earlier offence is sought to be established in the second prosecution.^[38]
68. [68]
    In R v Sulemanov,^[39] Redlich JA cited the reasons of Gleeson CJ and Hayne J in Carroll^[40] as authority for the proposition that where an accused has been acquitted of an offence, a fact relating to that offence may be relied upon in relation to another offence so long as the acquittal does not give rise to an inference that the particular fact was negatived by the jury.
69. [69]
    An example of this can be seen in the decision of the New South Wales Court of Criminal Appeal in Nash v R.^[41]  The appellant in that case was acquitted of the offence of driving under the influence of alcohol.  At the hearing of that charge, he gave evidence as to the amount of alcohol he had consumed at a golf club prior to driving his vehicle.  He later obtained damages against the State of New South Wales in civil proceedings he brought for unlawful arrest, assault and malicious prosecution.  At the civil trial, the appellant gave the same evidence about the amount of alcohol he had consumed as he had given at his criminal trial.  He also tendered CCTV footage from the golf club that was consistent with his evidence on that issue.  The police later became aware that the CCTV footage had been edited and that the original footage showed the appellant purchasing more drinks than he had previously given evidence about at the two trials.  The appellant was then charged with having committed perjury at both his criminal trial and the civil trial.  He sought an order that the charge of perjury in relation to his criminal trial be permanently stayed on the ground that, by that charge, the prosecution sought to controvert his acquittal on the charge of driving under the influence of alcohol.  That relief was refused.
70. [70]
    Macfarlan JA, with whom Harrison and Hamill JJ agreed, concluded that the perjury charge, and the evidence proposed to be called in support of it, did not directly contradict the earlier acquittal.  That was because the subject of the perjury charge was not whether the appellant was under the influence of alcohol when he drove his vehicle, but how much alcohol he consumed before driving.  The evidence which he had given about that at his criminal trial was material, but it was not determinative.  It would have been different if the appellant had been charged with perjuring himself by giving evidence at his criminal trial that he was not under the influence of alcohol when he drove his vehicle.  In that case, a finding of perjury would have directly contradicted the basis of his acquittal of the earlier charge because, it being accepted that the appellant drove his vehicle, the only issue at his earlier criminal trial was whether he was under the influence of alcohol when he did so.^[42]
71. [71]
    A further example can be seen in R v P, NJ (No 2).^[43]  Following a trial by judge alone, the appellant was acquitted on a charge of attempted murder after a stabbing but found guilty of wounding with intent to cause grievous bodily harm.  The reason for the acquittal on attempted murder was that the judge was not satisfied beyond reasonable doubt that the appellant had, at the time of the stabbing, intended to kill the victim.
72. [72]
    After those verdicts, the victim died from the injuries inflicted by the stabbing.  The appellant was then charged with murder.  On the second trial, the prosecution accepted that the acquittal on the charge of attempted murder would be controverted if, on the trial for murder, it alleged that the appellant had an intention to kill the victim and that, based on High Court authorities including Rogers and Carroll, it was precluded from doing so.  Instead, the prosecution proposed to allege that the appellant’s intention was to inflict grievous bodily harm, that being an alternative and sufficient mental state upon which a conviction for murder might be based.
73. [73]
    White J (with whom Duggan J agreed) held that, framed in that way, the second prosecution did not involve a tension between the acquittal on the charge of attempted murder on the one hand and the prosecution of the charge of murder on the other.^[44]
74. [74]
    These cases demonstrate that a determination whether—in the absence of a direct inconsistency between a new charge and an earlier acquittal—the second prosecution amounts to an abuse of process will depend upon the circumstances of the particular case.^[45]  However, it seems clear that a direct inconsistency between the later conviction or evidence and the earlier acquittal will render the later proceedings an abuse of process.^[46]
75. [75]
    The appellant also relied upon the following statement of principle of Giles CJ Comm D in State Bank of New South Wales Ltd v Stenhouse Ltd,^[47] later followed by Handley JA (with whom the other members of the New South Wales Court of Appeal agreed) in Rippon v Chilcotin Pty Ltd:^[48]

“… The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are —

1. the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;
2. the opportunity available and taken to fully litigate the issue;
3. the terms and finality of the finding as to the issue;
4. the identity between the relevant issues in the two proceedings;
5. any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; …
6. the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
7. an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.”

76. [76]
    Finally, reference should be made to the summary of the principles governing the exercise of the court’s power to grant a permanent stay of proceedings given by Bell P (as the Chief Justice of New South Wales then was) in Moubarak by his tutor Coorey v Holt:^[49]

“From a trilogy of decisions of the High Court between 1989 and 2006, the following uncontroversial propositions may be derived:

1. the onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant;
2. a permanent stay should only be ordered in exceptional circumstances;
3. a permanent stay should be granted when the interests of the administration of justice so demand;
4. the categories of cases in which a permanent stay may be ordered are not closed;
5. one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive;
6. the continuation of proceedings may be oppressive if that is their objective effect;
7. proceedings may be oppressive where their effect is ‘seriously and unfairly burdensome, prejudicial or damaging’;
8. proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party; and
9. proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people.”

77. [77]
    That summary was accepted by Bowskill CJ in Willmot v State of Queensland,^[50] and in this Court on the appeal from that decision.^[51]
78. [78]
    Although the assertion of abuse of process in both Moubarak and Willmot arose in different circumstances,^[52] the appellant accepted that the principles summarised above are relevant to the exercise of this Court’s power to stay proceedings as an abuse of process.

Abuse of process in this case

79. [79]
    It is necessary at the outset to address two matters arising from submissions advanced in oral argument by Mr Keim SC, who appeared with Mr Wilkinson of counsel for the Assessor.
80. [80]
    First, Mr Keim SC submitted, by reference to the facts of previously decided cases, that the abuse of process principles discussed above do not extend to circumstances where, as in this case, the second proceeding is based on a separate and later incident than that which gave rise to the first determination.^[53]
81. [81]
    That submission cannot be accepted.  As Mason CJ observed in Rogers:^[54]

“The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories.  Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.”

82. [82]
    To similar effect, in Batistatos v Roads and Traffic Authority (NSW),^[55] a majority of the High Court stated that “[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories.  Development continues.”^[56]
83. [83]
    Having regard to those statements, an analysis of the facts of previously decided cases cannot support the submission advanced by the Assessor.  The question that must be addressed is whether the application of the principles discussed above to the facts of this case compels a conclusion that the Assessor’s reference of the second complaint to the Tribunal amounts to an abuse of process.
84. [84]
    Secondly, Mr Keim SC accepted in the course of argument that the answer to this question must be the same whether this Court considers the Panel’s decision on the first complaint to be correct or not.^[57]  Later, he appeared to depart from that concession to some extent by submitting that for this Court to conclude that the Tribunal would be bound to come to the same decision as that reached by majority of the Panel would be more likely to bring the system of justice into disrepute than to allow the Tribunal to take the Panel’s decision on the first complaint into account and determine for itself whether it finds that earlier decision persuasive.^[58]  Implicit in that submission was the Assessor’s view that the Panel’s decision on the first complaint was “patently wrong”.^[59]
85. [85]
    The initial concession made by Mr Keim SC was properly made.  In considering whether the referral of the second complaint to the Tribunal constitutes an abuse of process it would not be appropriate for this Court to form any view as to the correctness of the Panel’s decision.
86. [86]
    The task of determining whether there has been abuse of process in seeking to re-litigate an issue previously determined must begin by identifying the relevant issue.
87. [87]
    The first complaint was not sustained because the majority of the Panel found that the appellant had no greater personal interest in the Council’s adoption of the 2016 policy that that of other persons in Cloncurry Shire.  This finding meant that, by reason of the exemption conferred by s 172(3) of the LGA, the appellant’s failure to inform the 20 December 2016 meeting that he owned a business that would receive a financial advantage under the 2016 policy did not contravene s 172(5).
88. [88]
    While the conduct giving rise to the second complaint arises from a separate incident—the appellant’s conduct at the 28 November 2017 meeting—the same issue will arise for determination if the second complaint is assessed by the Tribunal.  For the second complaint to be sustained, the Tribunal would have to find that the appellant contravened s 173(4) of the LGA.  Such a finding could only be made if the Tribunal were to conclude that the appellant had a greater personal interest in the adoption of the 2017 policy than that of other persons in the Cloncurry Shire such that the exemption afforded by s 173(3)(b) was not engaged.  On the evidence, there is no relevant difference between benefit conferred on the appellant’s business by the 2017 policy and that which it received under the 2016 policy.
89. [89]
    Considered in that way, there is an identity between the issue determined by the Panel’s decision and the issue which would arise for determination upon the Tribunal’s consideration of the second complaint: namely, whether the appellant had any greater personal interest in the Council’s adoption of the (relevantly similar) policies than that of other persons in the Cloncurry Shire.
90. [90]
    Further, this issue is an ultimate issue which was determinative of the Panel’s decision on the first complaint, and which would be determinative of the Tribunal’s assessment of the second complaint.  On the determination of the first complaint, there was no dispute that the appellant owned a business which would receive a financial benefit under the 2016 policy.  Nor was there any suggestion that the appellant had complied with the obligations imposed by s 172(5) in the event he was required to do so.  The only issue which arose for determination by the Panel was whether the appellant’s personal interest was exempted from disclosure by s 172(3).  The position would be no different upon an assessment of the second complaint.  There would be no issue as to the benefit the appellant’s business would receive if the Council adopted the 2017 policy or the fact that the appellant did not comply with the requirements of s 173(4).  The only issue which would arise for determination by the Tribunal would be whether the exemption afforded by s 173(3)(b) was engaged.
91. [91]
    Given the identity between the issue determined by the Panel and that which would arise for determination by the Tribunal, and its importance as an ultimate issue determinative of each complaint, there would be manifest inconsistency between the Panel’s decision and any finding by the Tribunal that the exemption in s 173(3)(b) was not engaged.  This is not a case in which a finding by the Tribunal that the appellant had a greater personal interest in the adoption of the 2017 policy than that of other persons in Cloncurry Shire would have only the “incidental effect of casting doubt upon, or even demonstrating the error of”^[60] the Panel’s earlier decision that the first complaint was not sustained.
92. [92]
    That is so despite the second complaint arising from the appellant’s personal interest in a separate matter—the Council’s consideration of the 2017 policy—than that which founded the first complaint.  The differences between the terms of the 2017 policy and those of the 2016 policy would have no bearing upon the determination of the ultimate issue by the Tribunal.  As already noted, the benefit conferred on the appellant’s business under the 2017 policy was the same as it had previously enjoyed under the 2016 policy.  There is no suggestion that, between the two meetings, the appellant’s interest in the business changed in a way which would lead to a different conclusion on the relevant issue.  There is nothing in the material which could be considered fresh evidence which would explain such a different conclusion.
93. [93]
    It is not to the point that, as the Assessor submitted, a conflicting decision by the Tribunal on the relevant ultimate issue in the second complaint would not deprive the appellant of the benefit of the Panel’s decision that the first complaint was not sustained.  A finding by the Tribunal that the appellant contravened s 173(4), because his personal interest in the Council’s consideration of the 2017 policy was greater than that of other persons in the Cloncurry Shire, would deprive him of the benefit of a finding on the same ultimate issue in the earlier decision of the Panel which was final and not subject to appeal.  That is sufficient to raise the issues of finality and fairness which underpin the doctrine of abuse of process.
94. [94]
    There is a legitimate public interest in the disposition of complaints of misconduct on the part of councillors, particularly in respect of conduct which might be influenced by a councillor’s personal interests.  Disciplinary hearings in respect of such complaints have a protective character.  The importance of protecting the public from councillors making decisions based on their own personal interests is a relevant factor to be weighed in the determination of this appeal.
95. [95]
    In the circumstances of this case, however, that public interest is outweighed by other considerations.  The Assessor’s referral of the second complaint to the Tribunal was vexatious, oppressive and unfair to the appellant because it exposed him to re-litigation of the same ultimate issue which has already been decided in his favour in relevantly identical circumstances in the Panel’s determination of the first complaint.  Further, such re-litigation would have the potential to generate conflicting decisions on the same ultimate issue and thereby bring the administration of justice into disrepute.
96. [96]
    Appellate review of the refusal to stay the prosecution of the second complaint looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration.  If so, this Court may reach its own decision in substitution for that of the primary judge.^[61]
97. [97]
    In this case, the primary judge did not take into account the issues raised by the re-litigation of the ultimate issue upon an assessment of the second complaint.  Balancing the competing considerations identified above leads to the conclusion that, contrary to his Honour’s decision, the referral of the second complaint to the Tribunal should be stayed as an abuse of process.

Unreasonableness as jurisdictional error

98. [98]
    Having reached that conclusion, the second substantive ground of appeal can be disposed of more briefly.
99. [99]
    If the Assessor is reasonably satisfied that the appellant has engaged in misconduct, it may apply to the Tribunal to decide that issue.^[62]  The appellant submitted that the Assessor could not have been reasonably satisfied that there was misconduct on his part.  In those circumstances, the decision to make the application was infected by jurisdictional error.
100. [100]
     In making that submissions, the appellant relied upon the following principles:

     1. where a state of satisfaction on the part of a decision maker is a condition precedent to the exercise of the relevant power then it is a jurisdictional fact upon which the exercise of the power or authority is conditioned;^[63]
     2. a decision will be infected with jurisdictional error where it is irrational, illogical, and not based on findings or inferences of fact supported by logical grounds; ^[64]
     3. the legislature is taken to have intended that a discretionary power conferred by statute will be exercised reasonably;^[65]
     4. it may be open to a court to conclude that a decision which lacks an evident and intelligible justification is unreasonable in the relevant sense.^[66]
101. [101]
     The appellant’s submissions on jurisdictional error were advanced on the basis of five propositions.
102. [102]
     Proposition 1 is that the Assessor could not be reasonably satisfied that the relevant conduct—as particularised in the application—constituted misconduct given the Panel’s decision on the first complaint and, in particular, the finding that, notwithstanding his ownership of a business that would receive a benefit under the relevant procurement policy, the appellant had no greater personal interest in the matter than that of other persons in the Cloncurry Shire.  Putting aside the question of abuse of process, on which the appellant has already succeeded, the Assessor’s failure to accept the correctness of the Panel’s finding was not unreasonable in the sense referred to in the authorities relied upon by the appellant.  That is, having regard to the material facts, it was reasonably open to the Assessor to reach a different conclusion on the operation of the exemption in s 173(3)(b) than that reached by the Panel on the operation of s 172(3).
103. [103]
     Proposition 2 is that the Assessor failed to consider that, given the Panel’s finding, the appellant’s conduct was exempt from the statutory definition of misconduct by reason of a 173(3)(b).  The material establishes that the Assessor was aware of the Panel’s finding but considered that finding to be incorrect.  As explained in addressing Proposition 1, that was a course that was reasonably open to the Assessor.
104. [104]
     Proposition 3 is that the charge arising from the second complaint is incoherent because:

     1. the charge fails to specify the relevant personal interest of the appellant or the countervailing public interest;
     2. the application does not state whether the asserted conflict is a real conflict or a perceived conflict of interest but instead asserts both;
     3. the charge does not state when the interests were in conflict;
     4. the charge does not state what the appellant should have done.
105. [105]
     None of these criticisms render the Assessor’s decision to make the application unreasonable in the sense submitted by the appellant.
106. [106]
     As to the criticism in [104](a), particulars (e), (g) and (h) of the alleged misconduct set out in the application, when read together, sufficiently identify the appellant’s personal interest: namely, his ownership of a business that would receive an advantage over other businesses under the 2017 policy.  There is a public interest in having matters such as the adoption of the 2017 policy determined by councillors without regard to their own personal interests.
107. [107]
     As to the criticism in [104](b), the application should be properly understood as asserting that the appellant’s personal interest gave rise to, at least, a perceived conflict of interest.
108. [108]
     As to the criticism in [104](c), the fact that the charge alleges misconduct on 28 November 2017, and particulars (a) and (i) of the alleged misconduct refer to the Council meeting held on that date, make it sufficiently clear that the perceived conflict of interest is alleged to have existed when that meeting was held.
109. [109]
     As to the criticism in [104](d), the minimum obligations of a councillor who has a conflict of interest, real or perceived, are set out in s 173(5).  Those obligations include informing the meeting of the appellant’s personal interest in the matter under consideration.  Paragraph 27 of the statement of facts included as Annexure A to the application asserts that the appellant did not declare an interest at the 28 November 2017 meeting.  This makes it sufficiently clear that the basis of the charge is that the appellant should have, at least, informed the meeting of his personal interest in the matter.
110. [110]
     Proposition 4 is that no particular of the charge specifies how the appellant failed to deal with the alleged conflict in a transparent and accountable way.  This criticism is sufficiently addressed by the matters in [109].  There is no reason to think that the decision maker did not turn her mind to this requirement.
111. [111]
     Proposition 5 is that the Panel’s finding concerning the appellant’s personal interest in the adoption of the 2016 policy makes it an abuse of process for the Assessor to contend for a contrary finding in respect of the 2017 policy and that the statement of facts included as Annexure A to the application does not address the effect of the Panel’s earlier decision.  The appellant’s abuse of process argument has already been accepted.  However, for the reasons in [102] and [103], I would not conclude that the Assessor’s failure to accept the correctness of the Panel’s decision made the decision to make the application to the Tribunal unreasonable in the relevant sense.
112. [112]
     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

113. [113]
     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.