Milingimbi School principal Jennifer Sherrington fails in bid to sue former Commissioner Ken Fleming for $3m

A remote school principal who was the subject of unsubstantiated corruption allegations has failed in her bid to sue the former corruption chief.

A former principal who once was the subject of allegations she stole $500,000 from a remote school has failed in her bid to sue the then-embattled corruption chief.

Jennifer Lea Sherrington tried to sue ICAC and the former Commissioner Ken Fleming for $3m accusing them of “acting in bad faith” while investigating her as the principal of Milingimbi School.

Justice John Burns dismissed Ms Sherrington’s application on September 9, saying a finding of bad faith would have a chilling effect on the watchdog’s powers.

Justice Burns said a finding of bad faith required a high threshold, and simply proving that the Commissioner had not followed the ICAC Act was not enough.

The court heard the ICAC was sent reports of alleged improper activities at East Arnhem school conduct dating back to 2015.

Ms Sherrington has never been charged in relation to the allegations.

During the “highly confidential” investigation, Ms Sherrington was transferred out of the school and told not to contact staff or reveal she was the subject of an ICAC inquiry.

After receiving the interim report, Ms Sherrington asked for a copy of all material and was sent a list of 52 documents.

Independent Commissioner Against Corruption Ken Fleming QC. Picture: Keri Megelus

Her legal team was given 23 days to respond to the allegations and material.

In response Ms Sherrington prepared a 241-page response, including a five page cover-letter, an annotated copy of the draft report with a response to each allegation, and 13 appendices of additional information.

Less than four week later the ICAC published its 18-month joint investigation with the Education Department.

In its report the ICAC alleged Ms Sherrington falsified thousands of attendance records in a bid to secure $1.4m in additional future funding for the school.

It also alleged she diverted $507,796 school funds for her own personal use, including travel and accommodation, car hire for personal shopping and fine dining for herself and her family and friends.

It also claimed she failed to comply with school governance policies, and did not properly manage conflicts of interest when hiring four family members.

In response, Ms Sherrington accused the corruption boss of ”misfeasance in public office”, that he acted in bad faith and denied her “natural justice” by not allowing her to respond to all claims.

Ms Sherrington claimed there was no real attempt to determine the truth, that the ICAC Act was not followed and Mr Fleming was driven by “personal motivations” to publish the report.

However, Justice Burns dismissed these claims.

He said the ICAC did everything it was obliged to do under the act, including notifying her about the investigation, providing material, and allowing her to respond to the draft report.

“The applicant clearly disagrees with the conclusions reached by the ICAC … She is, of course, entitled to take that view,” Justice Burns said.

“(It) does not mean, however, that the investigation undertaken by the ICAC was so deficient as to permit an inference to be drawn that the ICAC was acting in bad faith at the time.”

Justice Burns also dismissed Ms Sherrington’s claims that the corruption boss was influenced by “ulterior motives” to publish.

Ms Sherrington said the ”sensationalist report making serious allegations against a named individual” was part of a strategy to divert the media away from internal scandals within his office and from personal criticisms against him as he stepped down from the role.

Former Northern Territory ICAC Commissioner Ken Fleming QC. Picture: Supplied

“This reasoning is based upon speculation rather than a logical process,” Justice Burns said.

Justice Burns found that while most allegations were given to Ms Sherrington in the interim report, the ICAC did deny her procedural fairness for two claims.

He said the principal was not able to respond to allegations that she used school funds to hire a car for personal reasons and to buy her friends and family fast food and quality dining.

“(But) the failure of the ICAC to afford the applicant procedural fairness on this issue does not support a reasonable inference that the ICAC was acting in bad faith. “

Justice Burns said for the ICAC to function, a bad faith case had to meet a high threshold.

He said failing to follow the ICAC Act was not proof, in itself, that the investigation was in bad faith.

Justice Burns said “good” and “bad faith” referred to a “purely subjective state of mind on the part of the ICAC”.

“These terms would be likely to have a dampening effect on the ICAC’s efficacy in achieving its statutory object,” he said.

“It would be inconsistent with this statutory framework to hold that, in order for the ICAC to be performing his or her functions in good faith, he or she must conduct their investigation in a certain way or to a certain judicially determined standard. “

Justice Burns said only a case where the ICAC investigation was “so inadequate as to effectively not amount to an investigation at all” could a bad faith finding be made.

“The functions of the ICAC are immeasurably more complicated, requiring the exercise of judgment and discretion.”

Originally published as Milingimbi School principal Jennifer Sherrington fails in bid to sue former Commissioner Ken Fleming for $3m