McGee v Independent Assessor & Anor

In this case, the appellant, as a member of the Cloncurry Shire Council took part in two council votes which would advantage his small business. A complaint was made against the appellant in relation to each of those votes. In relation to the first, the Regional Conduct Review Panel determined no misconduct occurred. A proceeding in relation to the second vote was before the Councillor Conduct Tribunal. The appellant applied to have the proceeding permanently stayed as an abuse of process on the basis that the proceeding sought to relitigate an issue that was determined in the first proceedings. In accepting that argument, the Court of Appeal analysed the law of abuse of process as it applied to relitigating proceedings.

Bond and Dalton JJA and Cooper J

17 November 2023

The appellant was a member of the Cloncurry Shire Council. [6]. The appellant also owned an air-conditioning and electrical contracting business which provided services to the Council. [6]. On 20 December 2016, the Council adopted a new procurement policy (“the 2016 Policy”). [19]. The 2016 Policy made it easier for businesses with a head office in Cloncurry Shire to get contracts with the Council. [19]–[20]. The appellant’s business had a head office in Cloncurry Shire. [20]. On 28 November 2017, another amendment was made to the Council’s policy which benefitted businesses that operated from local premises and employed local staff (“the 2017 Policy”). [32]. That policy did not change the advantage given to the businesses benefited by the 2016 Policy, but it extended a small advantage to other businesses. [34]. The appellant voted in favour of both policies.

Separately, misconduct complaints were made against the appellant in relation to the 2016 and 2017 policies. In relation to the 2016 Policy, it was alleged that the appellant engaged in misconduct by failing to declare a material personal interest in the 2016 Policy contrary to s 172 of the Local Government Act 2009 (“LGA”). [28]–[29]. In relation to the 2017 Policy, the misconduct was said to arise under s 173 of the LGA which relates to conflicts of interest. [14]. Under ss 172(3) and 173(3)(b), a Councillor would not have a material personal interest or a conflict of interest (respectively) in a matter if they have “no greater personal interest in the matter than that of other persons in the local government area”. [14].

The complaint in relation to the 2016 Policy was dismissed on the basis that the appellant had no greater interest in the vote than other persons in the local government area in accordance with s 172(3). [30]. Subsequently, the respondent referred the complaint concerning the 2017 Policy to the Councillor Conduct Tribunal for determination. [8]. The appellant applied to have that proceeding permanently stayed on the basis that it was an abuse of process.

In considering whether the proceedings in relation to the 2017 Policy were an abuse of process, Cooper J (with Bond and Dalton JJA agreeing) considered the authorities. [52]–[78]. His Honour noted that the doctrine of abuse of process can arise where subsequent proceedings would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. [52]. Later proceedings cannot seek to controvert an acquittal in earlier proceedings. [60]–[61], [67], [74]. This will occur where there is a direct inconsistency between a later conviction and an earlier acquittal. [74]. Where there is no direct inconsistency, whether an abuse of process will arise will depend on the particular case. [74].

In the present case, Cooper J (with Bond and Dalton JJA agreeing) noted that the court cannot engage in an analysis of the correctness of the earlier decision. [85]. In addition, the mere fact that the second proceeding is based on a separate and later incident than that which gave rise to the first determination did not mean that no abuse of process could arise. [80]–[83]. Rather, in effect, the sole issue to be determined in the proceeding before the Tribunal was whether the appellant had no greater personal interest in the 2017 Policy than other members of the local government area. [88], [90]. To reach that conclusion the Tribunal would directly contradict the earlier finding in relation to the 2016 Policy, which conferred on the appellant’s business a benefit which was not relevantly different from that granted by the 2017 Policy. [88]. On that basis, the proceeding before the Tribunal were an abuse of process, and the Court ordered that it be permanently stayed. [97].

L Inglis