Berridge v The Independent Assessor & Anor

Berridge v The Independent Assessor & Anor [2023] QSC 228
Supreme Court of Queensland
Muir J
Administrative law – the applicant was a former bookkeeper who was elected as a councillor for the Redland City Council – she published a post on Facebook explaining her reasons for voting against a decision of the Council to enter into a commercial lease with Eureka Productions to film a television show called ‘Holey Moley’ at a bushland site in Redlands – the Independent Assessor appointed under s150CV of the Local Government Act 2009 (Qld) received a notification that the applicant may have engaged in misconduct as a result of statements made in the post – the applicant was given notice of and took up the opportunity to respond to the notification – the Independent Assessor made a decision under s150W(1)(c) of the Local Government Act that she was reasonably satisfied that the applicant had engaged in misconduct and that she would make an application referring the notification to the Council Conduct Tribunal – the applicant applied for judicial review of this decision under s20(2)(e) and s23(b) of the Judicial Review Act 1991 (Qld) – the sole ground of review was that the Independent Assessor erred by failing to take a relevant consideration into account, namely the applicant’s submissions in response – held: as distinct from migration cases, this case involved a statutory process which (a) provides an opportunity for the applicant to make submissions; (b) requires that the Independent Assessor reach reasonable satisfaction that the applicant’s conduct is misconduct before making a referral to the Council Conduct Tribunal; and(c) provides for Council Conduct Tribunal and not the Independent Assessor to make a decision, on the balance of probabilities, about the applicant’s conduct – that is, the decision made by the Independent Assessor is not determinative of the allegations made about the applicant’s conduct – the Court was not satisfied that the Independent Assessor had failed to adequately consider the applicant’s submissions in response before making her decision – the consideration required to be undertaken by the Independent Assessor must be understood in the context of the statutory framework, and bearing in mind the relatively low threshold requirement to refer the matter to the Council Conduct Tribunal – the referral was underpinned by an allegation which was detailed and carefully particularised, and there was nothing irrational, unreasonable or illogical about this reasoning – the mandatory requirement of the Independent Assessor was to consider the applicant’s submissions before making her decision, and not to demonstrate how and why she dealt with and disposed of those submissions – the Court was not satisfied that the Independent Assessor had made any error – application dismissed.
Berridge