Woodhouse v Thalis

1. [1]

   By a summons filed on 22 June 2017, Andrew Lance Woodhouse (“the plaintiff”) seeks orders in respect of a decision of the NSW Civil and Administrative Tribunal (“the Tribunal”) of 27 April 2017 dismissing proceedings brought by him against Philip Thalis (“the defendant”). The orders sought in the summons are pleaded in the following terms:

   1. (1)

      Leave to appeal from the (sic) all the decisions in the NCAT case.

   2. (2)

      Appeal be allowed.

   3. (3)

      Orders of the NCAT decision be set aside.

   4. (4)

      The matter be returned to the Tribunal for completion with recommendations in the plaintiff’s favour.

   5. (5)

      Fees, charges and costs if appropriate be allowed in favour of the plaintiff.

   6. (6)

      A time extension for lodgement of this appeal be allowed.

   7. (7)

      Transcripts NCAT hearings be provided

   8. (8)

      Costs assessments application lodged by the respondent be held in abeyance or refused

   9. (9)

      Leave be granted to lodge an Amended summons

2. [2]

   A total of 15 grounds of appeal are pleaded in the following terms:

3. [3]

   The matter is before me for the purposes of determining the plaintiff’s application to extend time to commence the proceedings. That application is opposed by the defendant.

The application for an adjournment of the hearing

1. [4]

   At the commencement of the hearing before me, the plaintiff, who appeared in person, sought an adjournment on the basis that he had not been given a sufficient opportunity “to present (his) case in full”. In particular, the plaintiff submitted that he had been denied that opportunity because of the late provision of submissions on behalf of the defendant. The application for an adjournment was refused and I indicated that I would give my reasons for that decision when handing down judgment.

2. [5]

   Quite apart from the fact that the defendant’s submissions were in fact served within the timetable set by the court, the plaintiff received them two weeks prior to the hearing before me. It is also apparent that the plaintiff was in breach of orders made by the Registrar requiring him to file and serve material in relation to the proceedings. When asked why this had occurred, the plaintiff said that he had been “involved in (his) general work and wasn’t able to”. A further order requiring him to file and serve written submissions was also breached.

3. [6]

   As I pointed out to the plaintiff at the time of hearing submissions in support of the application, there is a fundamental difficulty in seeking an adjournment of a matter listed for hearing in circumstances where there has been a repeated failure to comply with orders of the court. The plaintiff has had ample opportunity to prepare his case. For those reasons the application was refused.

The evidence

1. [7]

   A court book prepared on behalf by the defendant was admitted and marked Exh. A. In the course of admitting that evidence I ruled upon various objections raised by the plaintiff. Those rulings will appear in the transcript of the proceedings. A supplementary court book prepared by the plaintiff was admitted without objection and marked Exh. B.

The proceedings brought by the plaintiff in the Tribunal

1. [8]

   The defendant was elected as a councillor on the Council of the City of Sydney (“the Council”) at Local Government elections which were held on 10 September 2016. By an application filed in the Tribunal on 9 December 2016, the plaintiff sought orders in the following terms:

   1. (1)

      Philip Thalis be disqualified from being a councillor.

   2. (2)

      All decisions involving Philip Thalis and the City of Sydney Council be rescinded.

   3. (3)

      Philip Thalis be prohibited from standing for any council.

The decision of the Tribunal

1. [9]

   On 27 April 2017 the Tribunal (M Craig QC (Principal Member), R Titterton, (Senior Member) and B Thomson (General Member)) made orders (inter alia) dismissing that application. Follow that decision, the plaintiff made an application to the Tribunal for a written statement of reasons. That statement of reasons was provided on 17 May 2017: Woodhouse v Thalis [2017] NSWCATAD 260.

The reasons of the Tribunal

1. [10]

   Commencing at [5], the Tribunal recounted, at some length, the procedural history of the proceedings brought by the plaintiff, and noted that such history lay at the heart of its decision to dismiss them The Tribunal’s summary of the procedural history covered 34 paragraphs of its judgment. Whilst I do not propose to canvass the entirety of the matters contained in those paragraphs, the following are of particular relevance to the Tribunal’s determination.

2. [11]

   A directions hearing in the proceedings was fixed for 20 March 2017. On the evening of Sunday 19 March 2017, the plaintiff contacted the Tribunal Registry stating that “due to illness” he would not be able to attend. He identified his illness as a throat infection which had caused him to lose his voice, and stated that a relapse of Legionnaires Disease was suspected. He attached a pro-forma medical certificate stating that he would be “unfit for work” for one day.

3. [12]

   A further directions hearing was fixed for 7 April 2017, with the final hearing of proceedings fixed for 17 May 2017. The plaintiff acquiesced to both of those dates being set. By an email sent to the Tribunal Registry on 5 April 2017, the plaintiff advised that he would not be able to attend the directions hearing fixed for 7 April 2017. Once again, he stated that this was due to medical reasons, including the fact that his doctor had ordered a further test for Legionnaires Disease, and had recommended that he not do any work or perform any activities for the next two days. A pro-forma medical certificate attached to the email stated that the plaintiff would be “unfit for work for a period of two days”, namely on 6 and 7 April 2017.

4. [13]

   The final date for hearing was then confirmed and the proceedings were fixed for 27 April 2017 for the hearing of any outstanding interlocutory applications. In making those orders, the Tribunal directed that any further application for an adjournment by the plaintiff on medical grounds was to be supported by an affidavit from an appropriately qualified medical practitioner, giving reasons why the plaintiff was unable to participate in the proceedings. The plaintiff was advised of that (and other) orders, and of the need to strictly observe them.

5. [14]

   The plaintiff failed to attend the hearing on 27 April 2017. As had been the case on the two previous occasions, he sent an email to the Tribunal Registry shortly beforehand, indicating that he could not appear due to illness and seeking an adjournment. His email again attached a pro-forma medical certificate, indicating that he was “unfit for work” for the days nominated in that certificate. Contrary to the direction which had been made by the Tribunal, the plaintiff did not provide any affidavit from a medical practitioner explaining why he could not attend, and participate in, the hearing.

6. [15]

   When the matter came before the Tribunal on 27 April 2017, a number of other parties appeared and opposed the plaintiff’s application for an adjournment. The application was refused for the reasons which were given by the Tribunal at the time. The plaintiff did not request a statement of those reasons. Summonses issued by the plaintiff for the production of documents to the solicitor for the defendant, as well to the Electoral Commission, were dismissed. Subject to one document being produced, a further summons issued to the Council was also dismissed.

7. [16]

   On that occasion, the view taken was that the Council ought to be joined as a party to the proceedings. Accordingly, after refusing the plaintiff’s application for an adjournment, the presiding member made further orders requiring (inter alia) the plaintiff to join the Council to the proceedings and confirming the final hearing date of 17 May 2017.

8. [17]

   The plaintiff contacted the Tribunal Registry on 11 May 2017 seeking to have the proceedings relisted so as to deal with “relevant matters”. The Registrar subsequently advised all parties that the proceedings would remain listed for hearing on 17 May 2017, at which time the Tribunal would hear any application that the plaintiff sought to make.

9. [18]

   The plaintiff then contacted the Tribunal Registry on 15 May 2017, forwarding (inter alia) a pro-forma medical certificate, stating that he would be “unfit to work for a period of two days on 14 and 15 May 2017”. Neither of those dates were dates upon which the plaintiff was required to attend the Tribunal for the hearing of the proceedings. That email was accompanied by what was, in effect, an application for an adjournment of the hearing, with the plaintiff proposing a new hearing date of 8 September 2017.

10. [19]

    The Registrar was directed to (and did) inform the plaintiff that the matter remained listed for hearing on 17 May 2017 and that any application for an adjournment was to be made at that time, either by the plaintiff himself, a legal practitioner appearing on his behalf, or a person representing him by leave. The Registrar further informed the plaintiff that any such application would be required to be supported by evidence. It was further directed that in the event that medical evidence was to be relied upon, it was to be in the form of an affidavit sworn by a qualified medical practitioner who was available to be cross-examined, either by attending the Tribunal in person or being available for that purpose by telephone.

11. [20]

    The parties, including the plaintiff, were advised of those orders early on the afternoon of 16 May 2017. Later that afternoon, the plaintiff again contacted the Tribunal Registry asserting that the orders made on 27 April 2017 “should be rescinded”. He made no reference in that correspondence to the email which the Tribunal had sent to him only a matter of hours before confirming the hearing date of 17 May 2017.

12. [21]

    At 5.00pm on 16 May 2017, yet another email was received by the Registrar from the plaintiff. It attached a pro-forma medical certificate issued by another doctor at the medical practice from which the previous certificates had been issued. This certificate stated that the plaintiff would be “unfit for work for a period of two days from 16 May 2017”. In that email, the plaintiff referred to advice which he attributed to his doctor that he was not to perform work “tomorrow” because he had a throat infection, had “lost most of his voice” and was unable to speak “without an uninterrupted hacking cough”. Nothing in the medical certificate specifically supported those contentions. In the same email, the plaintiff reiterated that he was unable to attend the hearing and sought a further adjournment, asserting that the granting of an adjournment would be “in line” with the Tribunal’s obligation to achieve a “just, quick, cheap resolution of the proceedings”.

13. [22]

    The proceedings came before the Tribunal on 17 May 2017, at which time the plaintiff did not appear. The defendant was represented by his solicitor who opposed any adjournment. The adjournment sought by the plaintiff was refused by the Tribunal and the proceedings were dismissed.

14. [23]

    Commencing at [40], and having recounted the history of the proceedings (including those aspects to which I have referred above) the Tribunal emphasised the need for the expeditious determination of the proceedings, in circumstances where the plaintiff alleged that there was invalidity attaching to the election of a councillor, and consequent invalidity in decisions made by the Council in which that councillor had participated. The Tribunal pointed out (at [41]) that the longer the proceedings took to be determined, the greater the risk of Council decisions being impugned.

15. [24]

    The Tribunal made reference to s. 36 of the Civil and Administrative Tribunal Act 2013 (NSW) which is in the following terms:

16. [25]

    Against that background, the Tribunal (commencing at [44]) noted that there had been two occasions, namely 20 March 2017 and 7 April 2017, on which it had, with the consent of the defendant and other interested parties, extended indulgences to the plaintiff on the basis that he was a self-represented litigant, either by adjourning the proceedings or by vacating directions hearings that had been fixed. The Tribunal also noted that notwithstanding the directions which had been made on 7 April 2017, the plaintiff persisted in making what were described as two further “eleventh-hour applications for adjournment” supported by pro-forma medical certificates, despite a direction requiring the filing of sworn evidence. The Tribunal found (at [45]-[46]) that the certificates provided by the plaintiff were entirely unsatisfactory for the purposes of founding an application for an adjournment: AHB v NSW Trustee and Guardian [2014] NSWCA 40 per Macfarlan JA at [4]; Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139 per McColl JA at [221].

17. [26]

    Commencing at [51], the Tribunal made reference to the plaintiff’s failure to comply with its directions before turning to consider the correspondence received by the plaintiff on 15 May 2017 (commencing at [56]). In particular, the Tribunal said:

The proceedings in this Court

1. [27]

   The plaintiff seeks leave to appeal against the decision of the Tribunal. In that regard, s. 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the Act”) is in the following terms:

2. [28]

   Further, s. 84 of the Act is in the following terms:

3. [29]

   Rule 50.3 of the Uniform Civil Procedure Rules (2005) (NSW) is in the following terms:

4. [30]

   Rule 50.2 defines the term “material date” as follows:

5. [31]

   The term “court” is defined in s. 3(1) of the Civil Procedure Act 2005 (NSW) as follows:

6. [32]

   In the present case, the orders of the Tribunal were pronounced on 27 April 2017, with formal reasons being delivered on 17 May 2017. Accordingly, for these purposes, the application for leave to appeal against the decision of the Tribunal was required to be brought within 28 days of 27 April 2017. The summons seeking leave to appeal was filed and sealed in this Court on 13 July 2017.

7. [33]

   In support of his application for an extension of time, the plaintiff variously asserted that:

Consideration

1. [34]

   The delay in bringing the present proceedings is relatively short. However, nothing advanced by the plaintiff provides a cogent explanation of why the proceedings were commenced out of time.

2. [35]

   Moreover, in my view, the plaintiff’s proposed appeal has no prospects of success. Having regard to the provisions of s. 83 of the Act, appeals to this Court from decisions of the Tribunal are appeals by leave and are limited to appeals on a question of law. The decision of the Tribunal to dismiss the proceedings brought by the plaintiff was a discretionary one. It is clear that the Tribunal exercised its discretion having regard (inter alia) to the conduct of the plaintiff in which he (inter alia) repeatedly applied for adjournments of the proceedings on what might be described as questionable bases, failed to comply with orders made by the Tribunal, and generally failed to properly prosecute the proceedings which he had instituted. It is evident, in particular, the Tribunal viewed the plaintiff’s various applications to adjourn the proceedings with considerable scepticism. The Tribunal was completely justified in taking that approach.

3. [36]

   On the evidence before me, there is no basis upon which to conclude that in exercising its discretion to dismiss the proceedings, the Tribunal erred, or that its discretion otherwise miscarried in any way, let alone in a way which would give rise to any question of law.

ORDERS

1. [37]

   I make the following orders:

   1. (1)

      The application for an extension of time is refused.

   2. (2)

      The proceedings are dismissed.

   3. (3)

      The question of costs of the proceedings is reserved.

   4. (4)

      Absent reaching any agreement as to costs, the parties are to file written submissions with my Associate by Friday 2 February 2018, such submissions not to exceed two pages in length.