Swalling v Independent Assessor
[2024] QCAT 467
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- Unreported Judgment
- Swalling v Independent Assessor[2024] QCAT 467
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Swalling v Independent Assessor[2024] QCAT 467
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: |
|
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]
- [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]
- [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 circumstances here being entirely indistinguishable from those which pertained in McGee.
- [5]The consequence said by the parties to flow inevitably is that the CCT decision under review constitutes an abuse of process with the result that it must be set aside.
- [6]It should be pointed out here that earlier joint written submissions[3] sought “consent orders” included in which were orders purporting to direct the Conduct Tribunal to make orders which would have directed the Independent Assessor to act in a particular way. Those orders, and the issues raised in the written submissions supporting them, raised issues as to the scope of this Tribunal’s power.
- [7]Yesterday, the Tribunal received written submissions for the applicant drafted by Mr Ritchie of counsel. He appears for the applicant today. He confirmed that his submissions were, for his client’s part, intended to replace the earlier joint version of the submissions and orders sought (neither of which were drafted by him).
- [8]Mr Ritchie’s draft orders, and his written submissions in support, avoid the difficulties of the earlier version. The solicitor for the respondent adopted Mr Ritchie’s submissions and the orders sought.
- [9]The questions for the Tribunal are:
- Does the Tribunal agree with both parties that the decision in McGee and the facts and circumstances of the instant case lead to the conclusion that the CCT proceedings which resulted in the order under review were an abuse of process?
- If so, does the Tribunal agree with the orders proposed or should a different order be made?
How did the Proceedings before the Conduct Tribunal arise?
- [10]Mr Swalling was elected in 2016 as a Councillor on the Cloncurry Shire Council. He also ran a plumbing business within the region. From time to time, that business did work for the council. When elected, Mr Swalling disclosed his interest in the business.
- [11]On 20 December 2016, a resolution of the council adopted a policy giving greater weight to bids for council work from local businesses. Mr Swalling was present at that meeting and voted in favour of the resolution. No conflict of interest was declared.
- [12]Another councillor on the same council, Mr McGee, was in the same position as Mr Swalling. He too owned a local business that undertook work for the council from time to time. He too was present for the meeting; voted for the resolution and did not declare a conflict of interest.
- [13]Both men were the subject of subsequent complaints which in each case were referred to the Panel which is the predecessor to the current Conduct Tribunal. The complaints asserted each man had a conflict of interest within the meaning of the LGA.
- [14]The heading to s 173 of the LGA at the relevant time was “Councillor’s conflict of interest at a meeting”.[4] The section defines the relevant conflict of interest and the councillor’s obligations if that definition is met. However, the section also contains an exemption.
- [15]Sub-section (3) provides for a specific situation in which a councillor does not have a conflict of interest:
However, 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.
- [16]The CCT heard the complaints in relation to each councillor and in separate decisions found that sub-section availed each councillor. That is, the CCT determined that neither councillor had engaged in misconduct by reference to the alleged conflict of interest.
- [17]However, prior to those complaints and their determination, a second meeting of the council was held on 28 November 2017. That meeting considered a resolution concerning an amendment to the policy dealt with at the earlier meeting.
- [18]Again, both men were present at the meeting. Each voted. Neither declared a conflict of interest. A second complaint against both men was subsequently made.
- [19]Mr Swalling argued before the CCT that the sub-section earlier referred to applied. He also argued that the CCT proceeding with the complaint was an abuse of process. The CCT rejected both arguments and found misconduct was established.
- [20]The instant proceedings concern a review of that decision.
- [21]In the meantime, however, Mr McGee dealt with the complaint against him in a different manner. Rather than contest the matter in the CCT, he sought a stay of the proceedings and applied to the Supreme Court. That court rejected his application but Mr McGee’s subsequent appeal to the Court of Appeal was successful.
- [22]It is that court’s decision that is said to compel the Tribunal in this case to set aside the decision against Mr Swalling in the CCT.
The Decision in McGee
- [23]The Court of Appeal noted that the second complaint arising from the circumstances earlier outlined was based on the conduct which was “essentially the same” but was “based on a different statutory obligation”.[5]
- [24]Notwithstanding that difference, and notwithstanding that the second complaint was based on a “second and later incident than that which gave rise to the first determination”,[6] the Court held that the bringing of a second complaint was an abuse of process.
- [25]Noting that the task of determining if there was an abuse of process begins “by identifying the relevant issue”, the court held:[7]
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.
- [26]In the instant case, the ultimate issue determined in the first complaint was whether the councillor “had no greater interest than that of other persons in the local government area”. The determination of the second complaint turned on the same ultimate issue already decided in relation to the first complaint. In this case, as in McGee:
… 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 [relevant] Shire.[8]
- [27]In the instant review of the CCT’s decision, the “tribunal must hear and decide [the] review by way of a fresh hearing on the merits”.[9]
- [28]In doing so, by reason of the matters earlier outlined, the decision in McGee binds this Tribunal to conclude that the Assessor’s allegation “… [is] vexatious, oppressive and unfair to [Mr Swalling] because it expose[s] him to re-litigation of the same ultimate issue”[10] as that already determined by the CCT.
- [29]The decision of the Councillor Conduct Tribunal must be set aside.
What Orders Should be Made?
- [30]As has been seen, the parties contend for an order that, upon the order being set aside, the matter be returned to the CCT for reconsideration by it. That course is certainly open to this Tribunal by reason of the powers conferred by s 24(1)(c) of the QCAT Act.
- [31]Reference to the now superseded joint submissions of the parties reveals an agreed course of action if the matter is returned to the CCT. Further to that, it is said that the Independent Assessor has given an undertaking that the application to the CCT will be withdrawn[11] if the matter is returned to it.
- [32]Section 24(1)(c) also empowers this Tribunal to substitute its own decision for that of the CCT. That course, if available, is more expeditious and involves the parties (and community) in less expense.
- [33]
- [34]The agreed position of the parties is plainly designed to not have the Independent Assessor’s application proceed if the matter is returned to the CCT. That is plainly appropriate in light of this Tribunal’s finding that the application proceeding would constitute an abuse of process.
- [35]In the Tribunal’s opinion, the same result can be achieved by this Tribunal setting aside the decision of the CCT and ordering a permanent stay of the Independent Assessor’s application before the CCT.
- [36]The question is whether this Tribunal has the power to make an order for permanent stay. That question arises because the Tribunal’s powers are limited to those given to it by the legislation conferring those powers.
- [37]In the instant case, the review jurisdiction conferred on the Tribunal by the LGA must be exercised as prescribed by s 19 of the QCAT Act within proceedings of a type prescribed by s 20. The latter section requires the Tribunal to conduct a fresh hearing on the merits with the purpose of producing the correct and preferable decision.
- [38]The correct and preferable decision in this case involves two propositions. First, the order of the CCT cannot stand. Secondly, an abuse of process should be prevented by ensuring the current application by the Independent Assessor cannot proceed.
- [39]The powers available to the Tribunal are prescribed by s 24 of the QCAT Act. In substituting its own decision, the Tribunal has the powers given to the CCT under the enabling Act (in this case, the LGA) and the QCAT Act.
- [40]No specific provision provides for the Tribunal to order a permanent stay in a final decision. However, s 114 of the QCAT Act provides:
114 Conditions and ancillary orders and directions
The tribunal’s power to make a decision in a proceeding (the primary power) includes a power—
- to impose conditions on the decision; and
Example of a condition—
that something required to be done by the decision be done within a stated period
- to make an ancillary order or direction the tribunal considers appropriate for achieving the purpose for which the tribunal may exercise the primary power.
Examples of ancillary orders or directions—
- an order adjourning the proceeding
- an order or direction that a person give an undertaking to the tribunal
- [41]The term “ancillary order” is not defined. It cannot, though, be construed so as to enlarge the powers given to the Tribunal by the QCAT Act or enabling legislation.
- [42]
Section 114 of the QCAT Act gives the Tribunal power to impose a condition on the decision or to make an ancillary order or direction considered appropriate for achieving the purpose for which the Tribunal may exercise the primary power. These are not the conferral of additional primary powers. An example of a condition that can be imposed is a condition that something required to be done by the decision be done within a stated period. An example of an ancillary order or direction is an order adjourning the proceedings or an order that a party give an undertaking to the Tribunal. The power given by this section is not intended to create extra jurisdiction where it does not otherwise exist. It cannot be used to do so.
- [43]Issues raised in some earlier decisions of the Tribunal centre on the question of whether a contemplated ancillary order has the effect of enlarging the powers given to the Tribunal by statute.[15]
- [44]In the Tribunal’s view an order for permanent stay does not seek to enlarge the powers otherwise given to the Tribunal. Rather it is an order which acts in aid of achieving the two purposes to which the review is properly directed in this case.
- [45]We would order that, consequent upon the decision of the order of the CCT being set aside, the application by the Independent Assessor be permanently stayed.
- [46]The parties are agreed there be no order for costs.
Orders
- 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.
- 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.
- No order as to costs.
Footnotes
[1] [2023] QCA 225 (‘McGee’).
[2] Applicant’s Submissions filed 5 November 2024, [35].
[3] Joint Submissions filed 9 September 2024.
[4] The LGA was amended by the Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld) to remove this version of s 173.
[5] McGee, [8].
[6] McGee, [80]. References to the shire have been anonymised and the appellant’s name added to avoid confusion with the instant applicant.
[7] McGee, [88] (Cooper J, with Bond & Dalton JJA agreeing).
[8] McGee, [89].
[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 20(2).
[10] McGee, [95].
[11] See LGA s 150AKA(2).
[12] QCAT Act s 20(1).
[13] QCAT Act ss 3(b) and 4(c).
[14] [2022] QCATA 177.
[15] See, e.g. Nursing and Midwifery Board of Australia v Dunjey [2024] QCAT 96.