Cloncurry councillor Damien McGee wins appeal, cleared of misconduct

A former NQ councillor has won a long-running court case after the Court of Appeal found complaints lodged against him were an ‘abuse of process’. Here’s why.

Cr Damien McGee.

A watchdog in charge of overseeing local Queensland councils has been told it abused its power, and will have to cover a former councillor’s legal bills after it lost in the Court of Appeal.

The case involved former Cloncurry Shire councillor Damien McGee and the Office of The Independent Assessor.

Mr McGee was a well-known business owner in the outback town, and it was this electrical and airconditioning company Oz E Cool which caused him to be accused of ‘corrupt conduct’.

While serving on council in 2016, Mr McGee voted on a proposed change to the local procurement policy which affected what businesses the council would prioritise for contracts.

Mr McGee voted without declaring he was a local business owner who benefited from council contracts, and his failure to do so led to a misconduct complaint being lodged against him.

Damien McGee. Picture: Peter Rogalski

The complaint was lodged by another electrical business owner who competed for council work against Mr McGee, and was disadvantaged by the new council policy because his head office was outside the Shire.

In 2018, a majority panel from the Regional Conduct Review dismissed the first complaint after finding Mr McGee would benefit no more than any other Cloncurry Shire business from the change.

But in 2017 when the council voted on a slight change to the local procurement policy, a second misconduct complaint was lodged against Mr McGee and this one didn’t fall over when it was handed up in late 2018.

The complaint was referred to a brand new watchdog, the Office of the Independent Assessor, which claimed it was “reasonably satisfied” misconduct had occurred and referred the issue to the Councillor Conduct Tribunal.

Mr McGee ended up in the Supreme Court of Queensland seeking to dismiss the complaint as an abuse of process, arguing his actions could not constitute misconduct and pointing to the dismissal of the first charge as proof.

Justice David North presided over the case in May 2021 and held off making a ruling on the issue until October 2022 - one year and five months later.

Justice North ruled in favour of the Office of the Independent Assessor, and found the second complaint was not an abuse of process and ordered Mr McGee to cover legal costs.

Mr McGee appealed the decision to the Court of Appeal, where independent judges ruled in the former councillor’s favour on November 17, 2023.

In their report, the judges found the continuation of the second complaint was an abuse of process, ordered the misconduct allegation be axed, and all costs be paid by the Office of The Independent Assessor.

Councillors are expected to declare a conflict of interest in a matter if there is a difference between their personal interest, and the public interests.

However, they do not have to declare a conflict of interest if the councillor has no greater personal interest in a matter than any other persons in the Shire.

It was this wording (‘any other persons in the Shire’) which ultimately proved Mr McGee hadn’t been involved in misconduct when he voted on the Shire-wide policy changes without declaring any personal interests.

Originally published as Cloncurry councillor Damien McGee wins appeal, cleared of misconduct