Former Milingimbi School principal Jennifer Sherrington revives lawsuit against ex-ICAC Ken Fleming KC

Jennifer Sherrington argues Ken Fleming KC may have acted in ‘bad faith’ by making no attempt to fact check his allegations against her, ‘including through honest ineptitude’.

One time Milingimbi School Principal Jennifer Sherrington has been granted a second chance to sue former ICAC Ken Fleming KC (pictured). Picture: Keri Megelus

A former Territory school principal accused of misappropriating more than $500,000 in public funds has revived a bid to sue the NT’s former corruption watchdog for “misfeasance in public office”.

Jennifer Sherrington had her lawsuit against former Independent Commissioner Against Corruption, Ken Fleming KC, thrown out by the Supreme Court last year.

But after appealing that decision, Ms Sherrington was last week granted leave to argue before the Court of Appeal as to why the suit should be allowed to go ahead.

Ms Sherrington had claimed Mr Fleming published a public statement on his findings into her time at the Milingimbi School, which “caused her significant embarrassment and shame, as well as adversely affecting her capacity to obtain future employment”.

“The applicant also alleged that, in publishing and promoting the public statement, Mr Fleming intended to cause harm to her,” appeal judge Justice Peter Barr said.

“Alternatively, (she claims he) knew that it would cause injury or harm to her or (and) was recklessly indifferent to that fact.”

Ms Sherrington argued the previous judge, Justice John Burns, had erred in “applying a narrow construction of bad faith concerned exclusively with a subjective state of mind”.

“The judge below ought to have found that bad faith may be established where, objectively, the ICAC made no real attempt (including through honest ineptitude) to determine whether or not the serious allegations were true,” the grounds of appeal read.

“The judge below (also) erred in failing to consider or evaluate all of the evidence showing that Mr Fleming had predetermined to make adverse findings against the appellant by 31 January 2021, and certainly before receiving her response to the allegations on 9 June 2021.”

In overruling Justice Burns, Justice Barr said it was “by no means clear” the original ruling was “wrong or attended with sufficient doubt so as to warrant its reconsideration on appeal”.

But Justice Barr said that was “not the relevant test”, with Ms Sherrington only required to show “that the interests of justice make it desirable to grant leave”.

“Some at least of the many grounds (and sub-grounds) relied on by the applicant are arguable, and I have not formed ‘a clear opinion adverse to the success of the proposed appeal’, to use the words of the High Court,” he said.

“In those circumstances, noting that the order made by (Justice Burns) was one which effectively put an end to the applicant’s proceeding, or intended proceeding against the respondent personally, I consider that I should … grant leave to appeal.”

The Court of Appeal will hear further arguments at a later date.