McGee v Independent Assessor[2022] QSC 257

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   At the 2016 Local Government elections the applicant was elected as a councillor of the Cloncurry Shire Council. On 28 November 2017 he attended an ordinary council meeting and participated in the meeting. During the meeting he advanced a motion;

“That the Procurement Policy COR1004 Version 4 be adopted as presented”

The motion was seconded and was carried.

2. [2]
   The first respondent is established by section 150CT of the Local Government Act 2009 (‘LGA’) and one of the functions it is to prosecute offences against the conduct provisions of the LGA (see section 150CU(1)(c)). The second respondent is established by section 150DK. The first respondent claims to be “reasonably satisfied” that the applicant engaged in misconduct in participating in the meeting (see section 150AI) and has applied to the Councillor Conduct Tribunal (the second respondent, see section 150DK) to decide whether the applicant has engaged in misconduct (See section 150AJ, see also section 150W). If the first respondent is reasonably satisfied that a councillor has engaged in misconduct (see section 150AI) and makes an application to the second respondent then the second respondent must conduct a hearing about the application (see section 150AL) at which the second respondent must decide, after conducting a hearing, whether or not the councillor has engaged in misconduct and if so what action should be taken to discipline the councillor (see section 150AQ).
3. [3]
   A copy of the application made by the first respondent to the second respondent is exhibited to an affidavit of the applicant,^[1] Exhibit “DEM1”.
4. [4]
   The applicant has applied for an order “that the application filed by the first respondent with the second respondent (dated 4 October 2019) be permanently stayed as an abuse of process”. In advance of the hearing the second respondent filed a submitting appearance and took no further part in the application.
5. [5]
   In the application to the second respondent tribunal the first respondent alleges that the applicant “engaged in misconduct as defined in section 176(3)(b)(ii) of the Local Government Act 2009, in that his conduct contravened section 173(4) of the Act” and thus failed “to deal with the real or perceived conflict of interest in a transparent and accountable way”.
6. [6]
   Relevant to this application section 173 of the LGA in the version applicable at this hearing provided:

Councillor’s conflict of interest at a meeting

1. (1)
   This section applies if—

   1. a matter is to be discussed at a meeting of a local government

…; and

2. (b)
   the matter is not an ordinary business matter; and
3. (c)
   a councillor at the meeting—

   1. has a conflict of interest in the matter (the real conflict of interest); or
   2. could reasonably be taken to have a conflict of interest in the matter (the perceived conflict of interest).

2. (2)
   A conflict of interest is a conflict between—

   1. a councillor’s personal interests; and
   2. the public interest;

that might lead to a decision that is contrary to the public interest.

3. (3)
   However, a councillor does not have a conflict of interest in a matter—

…

1. (a)
   if the councillor has no greater personal interest in the matter than that of other persons in the local government area.

4. (4)
   The councillor must deal with the real conflict of interest or perceived conflict of interest in a transparent and accountable way.
5. (5)
   Without limiting subsection (4), the councillor must inform the meeting of—

   1. the councillor’s personal interests in the matter; and
   2. if the councillor participates in the meeting in relation to the matter, how the councillor intends to deal with the real or perceived conflict of interest.

7. [7]
   The applicable version of section 176 provides:

What this division is about

1. (1)
   This division is about dealing with complaints abut the conduct and performance of councillors, to ensure that—

…

1. (a)
   a councillor who engages in misconduct … is disciplined.

…

2. (2)
   Misconduct is conduct, …

   1. that is or involves—

…

1. (i)
   a breach of the trust placed in the councillor;

The application to the second respondent

8. [8]
   At the hearing of the application my attention was drawn to the application to the second respondent made by the first respondent (Exhibit “DEM1”). The material parts of the application are set out below:^[2]

“Conduct the subject of this Application

It is alleged that on 28 November 2017, Councillor Damien McGee, a councillor of Cloncurry Shire Council, engaged in misconduct as defined in section 176(3)(b)(ii) of the Local Government Act 2009, in that his conduct contravened section 173(4) of the Act, which was in force at that time, to deal with the real or perceived conflict of interest in a transparent and accountable way.

The particulars of the alleged conduct which could amount to misconduct are as follows:

1. a.
   On 28 November 2017, an Ordinary Council Meeting was held. One of the matters for consideration was whether to adopt the amended Procurement Policy COR1004 version 4.

1. b.
   The key amendment to the Procurement Policy, which was adopted at the meeting was a change to the definition of “Local Supplier”. The policy involved the creation of two tiers of local supplier, being Local Supplier Level 1 and Local Supplier Level 2. A business qualifying as a Local Supplier Level 1 was eligible for a 20% local advantage whereas a business qualifying as a Local Supplier Level 2 was eligible for a 10% local advantage. The change to the policy enabled businesses that did not meet the requirements of the Local Supplier definition under the previous version of the policy, to access half of the local supplier advantage.

1. c.
   The matter was not an ordinary business matter.

1. d.
   Councillor McGee attended the Ordinary Council Meeting.

1. e.
   Councillor McGee is the owner of an electrical and refrigeration company, Oz E Cool Pty Ltd, which has supplied services to Council since 2015.

1. f.
   Councillor McGee’s personal interest in the matter did not arise merely because of the circumstances specified in section 173(3) of the Act.

1. g.
   Councillor McGee’s personal interest in the matter could be deemed as being a real conflict of interest or perceived conflict of interest because under the Procurement Policy, Oz E Cool Pty Ltd, qualified as a Local Supplier Level 1.

1. h.
   As a Local Supplier Level 1, Oz E Cool Pty Ltd had an advantage over Local Suppliers Level 2 and over non-local suppliers.

1. i.
   At the Ordinary Council Meeting on 28 November 2017, Councillor McGee did not deal with the real conflict of interest or perceived conflict of interest in a transparent and accountable way.

Information forming a part of this Application

Annexure A to this Application is a Statement of Facts that sets out:

• Details of a complaint received and investigated by the Office of the Independent Assessor (OIA) in relation to the above matter.
• The allegation of misconduct, and the associated particulars, the subject of this Application.
• The facts and circumstances of this matter relied on in proof of the allegation of misconduct being the facts and circumstances that form the basis for my reasonable satisfaction.

Annexure B ...

Annexure C ...

Annexure D ...

Statement of Independent Assessor pursuant to s 150AJ

Based on the material contained in Annexures A – D of this Application, I am reasonably satisfied that the subject councillor has engaged in misconduct and hereby refer this matter to the tribunal to decide whether the councillor has engaged in misconduct.”

9. [9]
   The terms of the application quoted above make reference to a number of Annexures. At the hearing the application was placed before me. A copy of Annexure A referred to in the application was tendered into evidence.^[3]  The effect of the tender and the way in which the hearing before me finally proceeded had the effect that the facts or matters set out in Annexure A were not challenged by either party nor were the facts or matters set out in the application challenged. What was in issue is whether the facts or matters contained in the application and in Annexure A were capable of sustaining a conclusion by the first respondent of being “reasonably satisfied” that the applicant had engaged in misconduct. This requires some explanation by reference to the way in which the hearing before me proceeded.
10. [10]
    Before turning to the submissions made by counsel for the parties it is necessary to say something about the hearing before me. The first day of hearing was 5 February 2021. Mr Forbes appeared for the applicant and Mr Keim SC for the first respondent. It was apparent from the opening submissions that the application involved the resolution of some factual disputes, the identification of relevant statutory provisions in the LGA in force at relevant times and some others relevant to the application depending upon the content of transitional provisions and in light of that consideration of what conclusions could be drawn from the application of the relevant legislation in light of the facts as found by myself. The hearing on 5 February took the whole day yet counsel for the applicant had not concluded his opening. The application had all the hallmarks of a complicated lengthy matter and I was little the wiser,^[4] the fog of obscurity was thick. Directions for the further conduct of the application were discussed, a directions and review date was set for 2 March 2021 and further hearing dates set for 4 and 5 May 2021.
11. [11]
    When the hearing resumed on 4 May 2021 Mr Savage QC appeared (leading Mr Forbes) for the applicant. It became apparent that the issues to be agitated and the thrust of submissions by the parties had changed in substantial ways effectively rendering the hearing on 5 February 2021 irrelevant and, it seemed to me, diminished the utility of the directions made on 5 February and the review hearing and directions on 2 March. There was no longer a factual dispute for me to resolve. For the purposes of the hearing the facts asserted in the application (“DEM1”)^[5] and its Annexure (Exhibit 2) were not challenged. What was to be the subject of submissions was the characterisation of the facts or conduct in light of the relevant or applicable legislation. In submissions Mr Keim SC was emboldened to characterise the issue or argument as a ‘pleading point’.^[6]
12. [12]
    In his opening at the renewed hearing on 4 May^[7] Mr Savage QC said:

“We make, essentially, two contentions: the first contention that we make is that the first respondent could not lawfully commence the complaint procedure – or the complaint – which is referred to in the material as the second complaint because the first respondent could not, as the legislation required, be reasonably satisfied that there was misconduct.

Secondly, that if one could be reasonably satisfied that one could only be reasonably satisfied by proceeding to inadmissibly challenge the decision arrived at in respect of what is termed in the material, the first complaint. The first contention simply involves a proposition that the determination by the delegate which founds the jurisdiction of the second respondent is outside jurisdiction. So it involves a question of whether it’s a jurisdictional error. The second involves the claim that there is an abuse of process which arises by challenging … the first determination …”

13. [13]
    In submissions the second contention was occasionally referred to as the ‘Rogers v The Queen’ contention.^[8] Mr Savage QC went on to emphasise that I was not required to make a finding upon certain factual disputes.^[9] In his closing address in reply^[10] Mr Savage acknowledged that the case so far as an abuse of process was concerned depended upon the applicability of Rogers v The Queen. Whereas the other contentions raised an essentially jurisdictional thresh hold issue, whether on the facts alleged in the application (“DEM1”) and the Annexure (Exhibit 2) the first respondent could be ‘reasonably satisfied’ that the applicant had engaged in misconduct. In this outcome Mr Savage foreshadowed that relief in the form of a declaration and injunction may be appropriate.^[11] Thus the hearing before me proceeded, no persons were cross-examined and the parties made lengthy submissions by reference to the applicable legislation in light of the application and the Annexure A frequently referring to what I was told were uncontroverted facts or events.

The Rogers v The Queen submission

14. [14]
    To support his submission that there should be a permanent stay because of an abuse of process Mr Savage QC relied upon the decision of the High Court in Rogers v The Queen.^[12]
15. [15]
    In order to understand his submission some additional history must be noted. The meeting of 28 November 2017 is not the only meeting attending by the applicant resulting in controversy. On 20 December 2016^[13] the applicant attended a special meeting:

“16. ... Under agenda item 6.2, Council resolved to review and adopt Procurement Policy COR1004 version 3.

17. Councillor McGee attended the Special Meeting on 20 December 2016. The minutes show that neither Councillor McGee nor any other Councillor declared an interest or left the meeting during consideration of that agenda item.
18. Councillor McGee was a local business owner at the time of the Council meeting on 20 December 2016, and, at that meeting he voted to change the definition of Local supplier in the Procurement Policy version 3.
19. The former version of the Procurement Policy defined “local business/supplier” as:

“A registered business operating from land with appropriate land use approvals or deemed approved use that provides goods or services in exchange for money, and operates within Cloncurry Shire by a local resident who contributes to the community physically and financially.”

20. Version 3 of the Procurement Policy changed the definition of “Local Business/Supplier” to:

“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 operating from a compliant business premises.”

21. The effect of this change to the definition of “Local Business/Supplier” was to exclude businesses without a head office in Cloncurry Shire from being eligible to receive the local advantage under the Procurement Policy.

A complaint was made in relation to the applicant’s alleged failure to declare a material personal interest at this meeting. The complaint was referred to the Regional Conduct Review Panel (RCRP)^[14] for determination. On 7 May 2018 the RCRP determined the allegation of misconduct against the applicant was not sustained.

16. [16]
    In submissions Mr Savage QC took me to some of the statements in the judgment of members of the court in Rogers v The Queen. In an attempt to distinguish the point in issue from arguments that might arise when an estoppel is asserted he pointed to the statement of Mason CJ^[15] where his Honour said that the prosecution amounts to an abuse of process that emphasised that the doctrine of issue estoppel is not applicable to criminal proceedings.
17. [17]
    Relying upon the statements of principle by Mason CJ Mr Savage QC drew support from:^[16]

“I agree with the reasons given by Deane and Gaudron JJ for concluding that the prosecutions tender of the records of interview constituted a direct challenge to the 1989 determination and was therefore an abuse of process.”

18. [18]
    In this vein Mr Savage thought to draw support from observations in Walton v Gardiner^[17] invoking the observation that proceedings should be stayed if the continuance would be unjustifiably vexatious and oppressive for the reason that there is an attempt to litigate a newer case which has already been disposed of by earlier proceedings.^[18]
19. [19]
    Out of consideration to the careful submission by Mr Savage it was apparent that he sought to derive support from the judgment of Mason CJ where his Honour said:^[19]

“In the present case, a weighing of these consideration inevitably compels the conclusion that a stay should be ordered. The public interest in securing the convictions of the appellant is clearly outweighed by other relevant considerations. 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 appellants favour because a confession sought to be tendered although relating to different crimes – were made at the same time and in exactly the same circumstance 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 forward and fresh evidence) but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issues. These considerations necessarily prevail over any compelling public interest in the securing of convictions against the appellant.”

20. [20]
    Mr Savage QC submitted that the institution of the application to the Conduct Tribunal dated 4 October 2019 was an abuse of process because it had the inevitable consequence of attempting to controvert the determination of the Regional Conduct Review Panel made on 7 May 2018.
21. [21]
    For his part Mr Keim SC on behalf of the first respondent sought to distinguish the decision of Rogers v The Queen and rebut any latent claim based on estoppel. In lengthy and comprehensive submissions^[20] he developed a submission relying upon a number of authorities that no basis in law for a permanent stay of proceedings was made out, in other words the initiation of the proceeding by the application made by the first respondent to the second respondent was not an abuse of process.^[21]
22. [22]
    In submissions Mr Keim SC took me to his outline of submissions of 22 January 2021^[22] where he outlined a number of factors that he submitted were pertinent supporting his submission that there was no basis for a stay.^[23] Mr Keim emphasised that the “2016 complaint” and the “2017 complaint” concerned different meetings, different procurement policies and different misconduct allegations including different sections of the LGA. Materially the complaint arising out of the 2016 meeting relied upon a different section, section, 172^[24] and the allegation of a different term, ‘material personal interest’, whereas the complaint arising out of the 2017 meeting concerned section 173 and the asserted ‘conflict of interest’.
23. [23]
    The distinguishing features pointed to by Mr Keim SC are, I think significant. It is true that the circumstances in Rogers v The Queen arose in the context of separate proceedings, the second set of proceedings being commenced some years after the first, but it inevitably concerned an attempt to circumvent a ruling by the court that certain evidence was tainted having been obtained involuntarily. It was the circumstance of the attempt to circumvent a ruling involving the same piece of evidence that led the court to find that there was an abuse of process.
24. [24]
    The “2016 complaint” and the “2017 complaint” do involve conduct that has strikingly similar features. But the circumstance that the complaints concerned different meetings, involved different procurement policies and were founded upon different sections asserting different misconduct allegations, on the one hand ‘material personal interest’ and on the other hand ‘conflict of interest’, lead me to the conclusion that neither an unfairness nor any unconscientious conduct arises calling for the intervention of the court. Nor does the making of the 2017 complaint initiate a collateral attempt to impugn the 2016 complaint and proceeding. They concern different circumstances, different issues and raise different questions for consideration. Further, as I have noted above they concern complaints to different tribunals.
25. [25]
    In my view the applicant’s claim on this basis is not made out.

“Reasonable satisfaction” of misconduct

26. [26]
    Section 150AI requires that the first respondent must be “reasonably satisfied” that the applicant has engaged in misconduct before the first respondent can make an application to the second respondent alleging misconduct.
27. [27]
    The misconduct alleged in the application (“DEM1”) is “a breach of the trust placed in the councillor” (see section 176(3)(b)(ii)). It is alleged that his conduct contravened section 173(4) which requires the councillor to deal with a real or a perceived conflict of interest in a transparent and accountable way.
28. [28]
    Thus the application requires the first respondent to establish that the applicant failed to deal with a real or a perceived conflict of interest in a transparent and accountable way and that the conduct, whether by act or omission (or by a combination) constituted misconduct capable of being a breach of the trust stipulated by section 176(3)(b)(ii).
29. [29]
    As the title suggests, broadly speaking, section 173 concerns conflict of interest at a meeting. One way in which a councillor confronted with a real or perceived conflict of interest may begin to address their requirement of section 173(4) is to inform the meeting of the matters stated in section 173(5). It will be seen that both section 173(4) and section 173(5) are in mandatory terms^[25] but complying with section 173(5) may not in the circumstances satisfy section 173(4). More may be required of a councillor than stipulated by section 173(5).^[26]
30. [30]
    In his submissions Mr Savage QC acknowledged that the challenge to the application made to the second respondent did not involve a merits review or whether the facts and circumstances were accurately stated. Rather he acknowledged that the challenge was jurisdictional, that the facts and matters asserted in the application (“DEM1”) and the Annexure (Exhibit 2) as a breach of section 173(4) could not constitute misconduct as defined by section 176(3)(b)(ii). More particularly that the first respondent could not be “reasonably satisfied” of the matters stated in her statement pursuant to section 150AJ at the conclusion of the application.^[27]
31. [31]
    In this context Mr Keim SC reminded me of Minister for Immigration & Citizenship v SZMDS & Anor [2010] 240 CLR 611 concerning the need to show that a state of satisfaction was irrational, illogical and not based on findings or inferences of fact supported by logical grounds where the state of satisfaction was a condition precedent to the exercise of a power or doing an act.
32. [32]
    Mr Savage QC effectively made the same point when he submitted that his client could not succeed if I concluded that there was an arguable case that the first respondent could be “reasonably satisfied” upon the matters and facts raised by the application and Annexure.^[28] Mr Savage submitted that the allegations relating to personal interest (section 173(2)(a)) in particular paragraph e of “DEM1” was deficient and did not explain how the unidentified services gave rise to a personal interest.^[29] Further to this Mr Savage submitted that the particulars failed to give content to the asserted public interest.^[30]
33. [33]
    But the submission by Mr Savage QC of a deficiency in the reasoning concerning personal interest is answered by particulars e to i and the facts asserted in Exhibit 2. Each of the particulars e to i effectively plead the essential requirements of section 173(1) to (5) sufficient to outline a coherent contention that the applicant had failed to deal with a conflict of interest in a transparent and accountable way. When these particulars are considered with particulars a to d and the contents of Annexure A (Exhibit 2), particularly paragraphs 15 and 22 to 31, an arguable case is apparent that the applicant or his business stood to gain a pecuniary advantage over some competitors and potentially at the expense of rate payers by the adoption of the policy. The evidence in Exhibit 2 supporting the application reveals that the applicant’s business must be substantial. His invoices to the council were substantial. (See paragraph 30). His failure to inform the meeting of his personal interest and otherwise address section 173(5)(b) has hallmarks of a breach of the trust section 176(3)(b)(ii) speaks of. There is a demonstrated basis for the reasonable satisfaction the first respondent speaks of in the application. The reasoning by the first respondent leading to her conclusion of “reasonable satisfaction” has not been shown to be irrational or illogical. In fact I find the conclusion to be arguable.
34. [34]
    The observation I have made concerning the policy and the conduct of the meeting on 28 November 2017 should not be interpreted as an implied criticism of the policy considered. There may be sound community and economic reasons for such a policy in a community such as Cloncurry. Nor should my reasons imply a finding critical of the applicant. The jurisdictional challenge to the application by the first respondent has been made upon the basis of unchallenged assumed facts before me.

Conclusion

35. [35]
    The jurisdictional challenge to the application has failed. The making of the application has not been shown to be an abuse of process. The application should be dismissed. In my view costs should follow the event but I will give some leave to the parties to submit for a different order if desired.