Legal action against the former ICAC by a principal accused of misappropriating more than $500,000 has been revived after an appeals court overturned a previous ruling preventing the action.
Former principal of Milingimbi school Jennifer Sherrington had her lawsuit against Ken Fleming thrown out of the Supreme Court last year, in which she alleged Mr Fleming had committed “misfeasance in public office”, had unfairly targeted her to “cause harm” and did not provide her procedural fairness for all allegations against her.
However, Ms Sherrington won an appeal last week to proceed with the legal arguments at the Court of Appeal.
The July 2021 ICAC report concluded that Ms Sherrington had used money intended “for the poorest cohort of children in the country” for her own personal use, including for charter flights, hire cars, shopping sprees and fine dining.
The investigation – which was run jointly with the Department of Education – also found she had hired family members against rules and attempted to manipulate enrollment numbers at the remote school for more government funding.
She denied the allegations of corrupt conduct and launched a lawsuit against Mr Fleming last year in which she claimed he “acted in bad faith”, had “ulterior” motives for releasing the report and that she had been unfairly cast as the “villain” in the “sensationalist” report.
The report was completed by Rex Wild in his role as deputy commissioner in the Office of the ICAC.
Ms Sherrington’s lawyer, Trevor Moses, also alleged last year that the investigation was full of errors and that Ms Sherrington had not been afforded natural justice or procedural fairness and that her response to the ICAC’s allegations were not considered thoroughly before the public statement was made. She had alleged Mr Fleming “recklessly” caused reputational harm by releasing the public statement about the investigation’s findings.
Justice John Burns tossed the lawsuit out on the grounds that there was insufficient evidence that Mr Fleming acted in “bad faith”.
Ms Sherrington, in her appeal, argued that Justice Burns had erred by “applying a narrow construction of bad faith concerned exclusively with a subjective state of mind” and that he “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”, according to filed documents.
Justice Peter Barr overruled Justice Burns’ decision last week saying while “it is by no means clear that the decision of Burns J is wrong or attended with sufficient doubt so as to warrant its reconsideration on appeal”, Ms Sherrington only needed to show “that the interests of justice make it desirable to grant leave” for legal action.
“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,” Justice Barr said.
He added that noting the decision had “effectively put an end to” Ms Sherrington’s action, “I consider that I should … grant leave to appeal”.
The Appeals Court is expected to hear further arguments at a later date.
Mr Fleming retired as the NT’s Independent Commissioner Against Corruption in July 2021.
It seems that his whole term was bungled report after bungled report. The current ICAC hasn’t even justified his existence. Perhaps Riches is an appropriate name for someone that collects a wage for no result.