Jennifer Sherrington loses appeal to sue ex-ICAC Ken Fleming KC over Milingimbi report

A former remote principal has lost her last-ditch attempt to sue the Territory’s inaugural corruption watchdog Ken Fleming KC, after the courts ruled incompetence was not a ‘misfeasance’.

Ken Fleming KC was the Territory’s first Independent Commissioner Against Corruption. Picture: Keri Megelus

The Supreme Court has confirmed Territorians cannot sue their overseers for incompetence, after dismissing an ex-principal’s $3m case against the NT’s former corruption watchdog.

Jennifer Lea Sherrington tried to sue former Independent Commissioner Against Corruption Ken Fleming KC, accusing him of “acting in bad faith” while investigating her role as the principal of Milingimbi School.

In 2021, Mr Flemming released a damning report alleging Ms Sherrington stole $500,000 from the remote school, failed to comply with school governance policies, hired family members and falsified thousands of attendance records in a bid to secure $1.4m in additional future funding for the school.

Ms Sherrington has never been charged in relation to the allegations and for two years has accused Mr Flemming of “misfeasance in public office”.

Jennifer Lea Sherrington tried to sue former Independent Commissioner Against Corruption Ken Fleming KC accusing him of ‘acting in bad faith’. Photo: Emma Murray

The former educator argued in the Supreme Court that Mr Flemming either knew his report was false or misleading, or was reckless to that fact.

Ms Sherrington said before Mr Fleming released his 18-month investigation, she was given just 23 days to respond to 52 documents.

Despite being denied an extension, her legal team still managed to provided a 241-page response by the deadline

Only a week later the ICAC published his joint Department of Education investigation and Ms Sherrington said the final report did not adequately summarise her response, and she was not told the public statement would be released.

She alleged the ICAC acted in “bad faith” however, needed to apply to the Supreme Court to proceed with her lawsuit against the former corruption boss.

The former educator argued in the Supreme Court that ICAC Ken Fleming KC either knew his report was false or misleading, or was reckless to that fact.

In September 2022 Justice John Burns dismissed Ms Sherrington’s application, saying a finding of bad faith would have a chilling effect on the watchdog’s powers.

In her appeal of that decision, she argued Justice Burns applied an “unnecessarily constrained interpretation of ‘bad faith’”, did not properly engage with her arguments and set too high a bar for “substantial reasons” to sue.

On Friday, the Court of Appeal upheld Justice Burn’s decision, finding there were no errors in his reasoning when dismissing her case.

The panel of three judges found a public officer cannot be found to be acting in bad faith if they “engaged in an honest attempt to exercise power, albeit incompetently”.

It said to prove a “bad faith” investigation, Ms Sherrington would have to prove that the ICAC did not hold an honest belief he was acting in accordance with the act.