Kelly v Szatow

1. [1]

   HER HONOUR: These proceedings concern an appeal in respect of five determinations made in the NSW Civil and Administrative Tribunal (“the Tribunal”).

2. [2]

   The plaintiff in the proceedings is Mr Peter Kelly. The first defendant is Ms Cheryl Szatow, the second defendant is Mr Martin Smith, the third defendant is Ms Donna Greenfield and the fourth defendant is Mr Jeff Pettett. All of the parties are Councillors on Ku-ring-ai Council.

3. [3]

   There are three notices of motion before the Court for determination.

   1. (1)

      The second is the defendants’ notice of motion filed 27 May 2019 seeking orders that:

4. [4]

   The third is the plaintiff’s amended notice of motion dated 4 June 2019 seeking an extension of time to file the appeal pursuant to UCPR 50.3(1)(c) and leave to amend his summons filed 27 March 2019.

5. [5]

   The parties rely upon a joint court book.

6. [6]

   At the outset of the hearing for these proceedings, counsel for the plaintiff agreed to deal with the orders sought in paras [2]-[5] of the defendant’s notice of motion, and agreed that the orders sought in para [1] of the defendant’s notion of motion should be dismissed (T 19-20). For reasons which I set out later in this judgment, it will not be necessary to consider order [5] of the defendant’s notice of motion.

7. [7]

   I will deal with the issues raised in the following order, noting that some of the considerations in relation to these issues overlap:

   1. (1)

      firstly, whether an extension of time should be granted to appeal;

   2. (2)

      secondly, whether leave should be granted to file the amended summons; and

   3. (3)

      thirdly, the appeal to this Court.

The Local Government and Smith Proceedings

1. [8]

   Before I turn to consider extension of time, it is convenient that I set out a chronology and reasons for the Tribunal decisions that are the subject of this appeal.

2. [9]

   On 25 October 2017, the plaintiff filed two applications in NCAT pursuant to s 440 of the Local Government Act 1993 (NSW). These applications were made against Ms Szatow (in NCAT proceedings 2017/343149) and Messrs Smith, Pettett and Ms Greenfield (in NCAT proceedings 2017/343156) (collectively, “the Local Government Proceedings”). These applications sought orders in relation to the regulation of a “code of conduct” complaint that the plaintiff had made against the respondents on 15 October 2017.

3. [10]

   On the same day, 25 October 2017, the plaintiff filed another application in NCAT, this time pursuant to s 329 of the Local Government Act against Mr Smith (in NCAT proceedings 2017/343134) (“the Smith Proceedings”). This application alleged that a candidate information sheet completed by Mr Smith, asserting that he had no close association with a property developer, was false. It argued that as a result, the candidate information sheet caused an irregularity in the manner in which he had been elected and determined that he should therefore be disqualified from office. Specifically, the plaintiff alleged that Mr Smith had failed to disclose whether he was a property developer or close associate of a corporation that, or an individual who, was a property developer in accordance with reg 290 of the Local Government (General) Regulation 2005 (NSW) (“the Local Government Regulation”).

4. [11]

   On 21 February 2018, The Local Government Proceedings were heard concurrently and dismissed (“the Local Government Decision”).

5. [12]

   On 4 May 2018, the plaintiff was ordered to pay the defendants’ costs of the Local Government Proceedings. This costs decision is Kelly v Szatow [2018] NSWCATOD 64 (“the Local Government Costs Decision”).

6. [13]

   The plaintiff subsequently appealed the Local Government Costs Decision to an Appeal Panel. On 24 July 2018, an Appeal Panel reviewed this decision. The appeal was dismissed, and costs were ordered against the plaintiff (“the Appeal Panel Decision”). Reasons were delivered ex tempore in relation to both the dismissal of the appeal and the question of costs.

7. [14]

   On 4 May 2019 the Smith Proceedings were heard in the Tribunal. In a decision handed down on 5 June 2018, the Smith Proceedings were dismissed. Written reasons were delivered in Kelly v Smith [2018] NSWCATAD 122 (“the Smith Decision”). Costs were ordered against the plaintiff on 2 July 2018 by written reasons delivered in Kelly v Smith (No 2) [2018] NSWCATAD 141 (“the Smith Costs Decision”).

8. [15]

   I have set out a summary of the reasons provided for the relevant decisions here. In so doing, I acknowledge that I have largely adopted the defendants’ submissions.

9. [16]

   The reasons for the Local Government Decision are recorded in the Local Government Costs Decision. These reasons record that at the hearing of the Local Government Proceedings, the plaintiff conceded, and it became common ground, that the matter was not within NCAT’s jurisdiction. This concession was clear, unambiguous and unequivocal. The plaintiff also repeated in the hearing before the Appeal Panel that he had conceded at the hearing of the Local Government Decision that the Tribunal had no jurisdiction to deal with the matter, and he made no argument to the contrary.

10. [17]

    The reasons for the making of the Local Government Decision can be summarised as follows:

    1. (1)

       the Tribunal was satisfied that:

    2. (2)

       The above circumstances constituted special circumstances such that costs should be ordered, although an application for indemnity costs was rejected.

11. [18]

    In summary, the Tribunal determined that the plaintiff’s applications lacked merit. Once the plaintiff had been given the respondents’ arguments regarding jurisdiction the decision to continue proceedings amounted to an abuse of process.

12. [19]

    In considering the plaintiff’s appeal from the Local Government Costs Decision, the Appeal Panel began its decision by identifying the relevant questions for determination. The Appeal Panel held that neither the Local Government Decision nor the Local Government Costs Decision were “internally appealable decisions”, and therefore concluded it did not possess the requisite jurisdiction to hear and determine the appeal.

13. [20]

    The Appeal Panel nevertheless considered the other issues in the appeal, in the event it was wrong on the question of jurisdiction. It found the plaintiff’s appeal did not disclose any question of law. The Appeal Panel concluded that the Tribunal correctly identified the need for special circumstances before making the costs order in the Local Government Costs Decision.

14. [21]

    The Appeal Panel concluded that the Tribunal had correctly applied relevant legal principles and that the discretion to award costs did not miscarry. The Appeal Panel also held that even if it had jurisdiction, leave to bring the appeal should not be granted because there was no issue of principle or public importance. The Appeal Panel found that special circumstances existed and accordingly made an order for costs in favour of the respondents.

15. [22]

    In the Smith Decision at [25], the Tribunal first found that there was no evidence to support that the information in the candidate information sheet was incorrect. In cross examination, the plaintiff conceded that despite “scouring” the internet, he had not obtained any information to support his application aside from ASIC searches that he obtained after the commencement of proceedings. He had also accepted that he had no evidence to contradict Mr Smith’s affidavit concerning the accuracy of the Candidate Information Sheet: see [13] of the Smith Decision.

16. [23]

    In the Smith Decision at [26], the Tribunal also found that even if the information was found to have been incorrect, there was no evidence that the irregularity would have resulted in a different outcome to the election.

17. [24]

    Therefore, in order for the plaintiff to successfully appeal the Smith Decision in this Court, it is necessary to appeal not only the second limb of the Tribunal’s reasoning, but the first, which entails overturning a finding as to the state of the evidence concerning the accuracy of the Candidate Information Sheet.

18. [25]

    In the Smith Costs Decision at [15]-[16], the Tribunal found that the plaintiff’s application was “so weak as to be untenable” and “so obviously untenable or manifestly groundless as to be utterly hopeless” and in this sense vexatious.

19. [26]

    The Tribunal noted that the plaintiff did not make any submission to counter this argument. Although the Tribunal found that this amounted to special circumstances, it declined to order indemnity costs: see [17]-[19] of the Smith Costs Decision.

Whether an extension of time should be granted to appeal

1. [27]

   On 4 June 2019, the plaintiff filed a notice of motion seeking an order granting an extension of time to file the appeals under UCPR 50.3(1)(c). The defendants opposed the granting of such an order.

2. [28]

   Rule 50.3 of the UCPR provides guidelines concerning the time for appeal. It states:

3. [29]

   The material date in these proceedings is the date on which notice of the decision was provided to the plaintiff. The material dates of the Appeal Panel Decision, the Smith Decision and the Local Government Costs Decision are 24 July, 5 June and 4 May 2018 respectively.

4. [30]

   The plaintiff filed his summons in relation to the Appeal Panel Decision 7 months out of time, his summons in relation to the Smith Decision 8 months out of time and his summons in relation to the Local Government Costs Decision 9 months out of time.

5. [31]

   The principles that apply to an extension of time to appeal are well established. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff’s case and consideration of whether the defendants would be prejudiced by a granting of the application: see Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty (No 2) [2007] NSWCA 369 at [55].

6. [32]

   The plaintiff bears the onus of demonstrating that strict compliance with the timeframe would work an injustice upon him: see Gallo v Dawson (1990) HCA 30; 93 ALR 479 (“Gallo”). In Gallo, McHugh J stated at [2]:

7. [33]

   The plaintiff’s explanation for delay is set out in his affidavit of 27 May 2019 and can be summarised as follows.

8. [34]

   In 2007, the plaintiff was diagnosed with Post Traumatic Stress Disorder.

9. [35]

   In 2016, he was appointed by former Senator Brian Burston to the position of Parliamentary Advisor.

10. [36]

    In 2017, he was elected a Councillor to Ku-Ring Gai council.

11. [37]

    In March 2018, the plaintiff says that he was unfairly dismissed as a parliamentary advisor.

12. [38]

    On 24 July 2018, the decisions in the Tribunal were determined in the Appeal Panel decision.

13. [39]

    The 28 day period to appeal the decision of the Appeal Panel expired on 22 August 2018. The plaintiff says that he was “pre-occupied with the immediacy of the Unfair Dismissal impact which affected [his] personal relationship” [37].

14. [40]

    Since April 2018, the plaintiff says that he has been “subjected to psychiatric assessment and medical treatment…resulting in loss of cohesion and attentiveness in making prompt application to this Court for full appeal of the decisions of the Tribunal” [38].

15. [41]

    During August 2018, he says that he was “affected by a number of threatening telephone calls which were reported to the Police” [38].

16. [42]

    In 2019, the plaintiff “applied for Comcare compensation which again was time delimited and consumed much of [his] time”. The plaintiff claims that the claim “consumed entirely [his] immediate time and energies in order to comply with that statutory framework” [39].

17. [43]

    The plaintiff continues to receive counselling from psychiatrist Dr Graham Altmann and psychologist Dr Kathi Pauncz.

18. [44]

    The plaintiff explained that he “simply lost sight of the time and was unaware of [his] appeal rights against the primary decisions below in making this Application out of time” [40].

19. [45]

    The plaintiff relied on a report of his psychologist, Kathi Pauncz, dated 8 June 2019 (Ex A). Ms Pauncz opined at [4]-[7]:

20. [46]

    Pursuant to UCPR 50.12(4)(c), the plaintiff submitted that leave to appeal out of time should be granted for the following reasons:

21. [47]

    The defendants submitted that leave to appeal out of time should be refused for the following reasons:

    1. (1)

       The delay in question is significant and gross.

    2. (2)

       The plaintiff’s evidence that attempts to explain the delay is wholly unsatisfactory. It is irrelevant whether he was aware of his appeal rights or not. The fact of the matter is that he chose to spend his time pursuing other litigation or compensation claims instead of directing his attention and obtaining legal advice with respect to the decisions he now seeks to appeal. On his own evidence, he did not seek legal advice until March 2019. There is no apparent reason why that could not have occurred in mid-2018, but for the plaintiff’s own decision not to prioritise these matters. Further, the opinion expressed by his treating psychologist Ms Pauncz, going to the effect his mental health may have had in bringing this proceeding is of no probative weight. It sets the bar at nought. If the “explanation” provided by the plaintiff is found to warrant the granting of leave it will have the effect of rendering the time limitations imposed by the Court’s rules as meaningless for future matters.

    3. (3)

       Leave should be refused when regard is had to the history of the proceedings and the plaintiff’s conduct before the Tribunal. This includes findings that the Local Government Proceedings lacked merit and that their continuation was an abuse of process. It similarly includes findings that the Smith Proceedings were vexatious in the sense that they were manifestly groundless and utterly hopeless. It is significant that neither the summons nor the proposed summons seeks to appeal those particular findings. Further, the plaintiff conceded that the Tribunal lacked the jurisdiction to determine the Local Government Proceedings. He also acknowledged in the Smith Proceedings during cross examination that he had no evidence contrary to the respondent's evidence attesting to the accuracy of the Candidate Information Sheet. To the extent that these proceedings seek to appeal the Local Government Decision and Smith Decision they therefore constitute an attempt by the litigant to resile from concessions unequivocally and clearly made. There is no evidence as to why the plaintiff should be allowed to resile from those concessions. Such conduct is a significant reason why leave to appeal out of time should be refused.

    4. (4)

       The nature of the litigation in question is not unique, special, or a matter of public importance warranting the grant of leave. This is particularly so in the cases with the Local Government Costs Decision, Smith Costs Decision and Appeal Panel Decision. There, the nature of the litigation relates solely to questions of costs dependant on the particular chronology and course of conduct between the parties. As stated in the Appeal Panel Decision, they are “orthodox decisions” correctly arrived at in the usual course. The Smith Decision and Local Government Decision do not raise any question of principle or a matter of public interest warranting the grant of leave. The Local Government Decision is a decision by the Tribunal stating it lacks jurisdiction, when that fact was “common ground” between the parties and no application has been made by the plaintiff to resile from that concession. It would be contrary to public interest to grant leave in such circumstances. The Smith Decision similarly raises no question of principle, decided as it was principally on the basis of a factual finding (that there was no evidence at all to establish the Candidate Information Sheet was incorrect).

    5. (5)

       The prospects can only be said to be poor. This is another reason why leave to appeal out of time should be refused. It is concerning that despite the lengthy passage of time, retention of representation, and formulation of an amended summons, the plaintiff can still not clearly identify questions of law or fact he seeks to appeal from (or any questions of law that would have utility).

    6. (6)

       If leave is granted it will cause significant prejudice to the defendants. The time limitations in bringing an appeal are, in part, to safeguard defendants from the time and expense inherent in protracted litigation. The defendants will be exposed to such expense, with little hope of recourse from a plaintiff who openly acknowledges he is in a precarious financial position. It is also not proportionate or appropriate to grant leave in these proceedings.

22. [48]

    The appeal was lodged seven months out of time. The plaintiff’s explanation is that he suffers from PTSD. His psychologist opines that the delay of approximately five months “can possibly” be explained by his PTSD, as it is common for people with PTSD to procrastinate and avoid dealing with issues, particularly when those issues are stressful. Nevertheless, in 2018 after the NCAT decisions were handed down, the plaintiff says that he was able to deal with a Comcare claim which consumed his immediate time and energy.

23. [49]

    The plaintiff says that he lost track of time and was unaware of his appeal rights in relation to the primary decisions of NCAT. However, he did not seek any advice as to his appeal rights in these proceedings until March 2019. It therefore appears that the plaintiff simply elected to prioritise pursuing his employment compensation claim, in respect of which he was able to comply with relevant time frames.

24. [50]

    So far as the plaintiff’s prospects of success are concerned, the Tribunal has made findings that the Local Government Proceedings lacked merit and that their continuation was an abuse of process. The Tribunal similarly found that the Smith Proceedings were vexatious in the sense of being manifestly groundless and utterly hopeless. At the Tribunal, the plaintiff conceded that it lacked jurisdiction to determine the Local Government Proceedings. He also acknowledged in the Smith Proceedings that he possessed no evidence that was contrary to the respondent’s evidence that supported the accuracy of the Candidate Information Sheet. To the extent that these proceedings seek to appeal the Local Government Decision and the Smith Decision, the plaintiff attempts to resile from concessions he made at the hearing. Taking these matters into account, the prospects of success are poor.

25. [51]

    While it may be possible that ss 329 and 440 of the Local Government Act concern matters of public importance, the issues raised in this appeal do not, as the plaintiff is bound by the way he ran the litigation in the Tribunal.

26. [52]

    For these reasons, and in the exercise of my discretion, I refuse the plaintiff’s application to extend time to appeal.

27. [53]

    In the event that I am wrong, I will turn to consider the plaintiff’s application for leave to file the amended summons.

Whether leave should be granted to file the amended summons

1. [54]

   On 27 March 2019, the plaintiff filed a summons seeking to appeal the Smith Decision, the Local Government Costs Decision and the Appeal Panel Decision. He subsequently filed a statement of grounds identifying three grounds of appeal.

2. [55]

   In his summons, the plaintiff sought firstly to appeal the Smith Decision, the Local Government Costs Decision and the Appeal Panel Decision pursuant to cl 29(2)(b), Sch 5 of the CAT Act. Clause 29(2)(b) provides for a party to proceedings in which a “profession decision” is made to appeal against the decision to the Supreme Court.

3. [56]

   Secondly and in the alternative, the plaintiff sought leave to appeal on a question of law against those three decisions.

4. [57]

   Thirdly and in the in alternative, the plaintiff sought orders affirming, setting aside, varying or remitting the matters to be heard by the Tribunal in accordance with the directions of the Court.

5. [58]

   Fourthly, the plaintiff sought leave to appeal a decision as to costs in accordance with the requirement set out in cl 29(6), Sch 5 of the Cat Act.

6. [59]

   On 4 June 2019, the plaintiff filed an amended notice of motion seeking leave to amend the summons to expand his appeal to the Local Government Decision, the Local Government Costs Decision, the Appeal Panel Decision, the Smith Decision and the Smith Costs Decision.

7. [60]

   In lieu of the orders sought in the summons filed 27 March 2019, the plaintiff by the proposed amended summons sought a number of orders. They are:

8. [61]

   In lieu of the statement of grounds filed 4 January 2019, the plaintiff outlined the grounds on which he sought to appeal the Tribunal’s decisions as follows:

9. [62]

   In accordance with UCPR 50.12(4), the plaintiff further stated:

10. [63]

    The proposed amended summons is the plaintiff’s first attempt to seek an appeal in respect of the Local Government Decision and the Smith Costs Decision. The appeals in respect of these two decisions have been brought over 15 and 10 months out of time, respectively.

11. [64]

    At the hearing of these proceedings, counsel for the plaintiff submitted that the amendments to the summons are required in order to conform with court rules and to clarify the issues in question.

12. [65]

    The defendants submitted that the amended motion should be dismissed because the proposed amended summons is futile, bound to fail and fails to properly identify questions of law. In addition, there has been a delay in bringing the amendment motion.

13. [66]

    The defendants maintain that the plaintiff foreshadowed an amendment of his summons. He was ordered to file any such motion by 13 May 2019. No such motion was filed. The defendants wrote to the plaintiff on 27 May 2019 indicating they were proceeding on the basis that no such amendment was being pressed. On 31 May 2019, the plaintiff made no indication to the Court or sought any orders re-agitating an amendment application, despite the matter being raised by counsel. Notwithstanding this, on 3 June 2019, the plaintiff wrote to the defendants indicating an intention to rely on the proposed amended summons. The amended motion was filed the following day. As late as 8 July 2019, the defendants’ lawyers wrote to the plaintiff’s lawyers seeking confirmation that the amended motion was being pressed, in circumstances where it was omitted from the plaintiff’s own proposed index to the court book.

14. [67]

    Further, the defendants submitted that the plaintiff has not given an explanation for his delay in bringing the amendment motion that that this Court has not been equipped with the evidence it requires to properly engage the weighting exercise required under ss 56-58 of the Civil Procedure Act. The defendants maintain than an explanation for delay is a jurisdictional threshold required before the Court may exercise its discretion to grant leave. The plaintiff has elected not to put on evidence sufficient to meet that threshold requirement. As such, the amended motion should be dismissed.

15. [68]

    The defendants do not consent to the filing of the amended summons. The plaintiff foreshadowed filing a motion to amend his summons by 13 May 2019. When he had not done so by 27 May 2019, the defendants wrote to him indicating that they would proceed on the basis that he was not pressing the amendment.

16. [69]

    It was not until 3 June 2019 that the plaintiff wrote to the defendants’ solicitors indicating that it would rely on the proposed amended summons, which caused further delay.

17. [70]

    The plaintiff has failed to comply with court directions and with no proper explanation. In these circumstances, it is my view that I should not grant leave to the plaintiff to amend his summons. However, in the event that I am wrong, I will deal with the issues raised in the amended summons and the amendments sought, as the defendants have provided submissions.

The appeal to this Court

1. [71]

   Paragraph (3) of the defendants’ notice of motion seeks that leave to appeal from the NCAT costs decisions be refused. Paragraph (4) of the defendants’ notice of motion seeks that leave to appeal from NCAT on questions other than law be refused.

2. [72]

   Despite the defendants’ separation of these issues, the grounds of review as articulated in the plaintiff’s amended summons do not separately address the appeals in relation to the costs decisions, and the appeals in relation to questions other than law. Rather, the plaintiff’s grounds of appeal refer variously to “NCAT” or “each decision”.

3. [73]

   Furthermore, for the reasons I discuss under the next heading, although leave is required to bring an appeal in relation to the Local Government Costs Decision, the Smith Costs Decision and the Appeal Panel Decision, the Local Government Decision and the Smith Decision may be appealed as of right.

4. [74]

   Sections 82 and 83 of the CAT Act govern appeals against appealable decisions. They read:

5. [75]

   The Appeal Panel Decision is an appealable decision under s 82(1)(a). As such, s 83(1) of the CAT Act provides that the plaintiff must seek leave to appeal the Appeal Panel Decision and may seek to appeal only in respect of questions of law.

6. [76]

   The Local Government Decision, Local Government Costs Decision, Smith Decision and Smith Costs Decision are not appealable decisions under s 82 of the CAT Act. As such, the plaintiff appears to seek an appeal in relation to these decisions pursuant to cl 29, Sch 5 of the CAT Act. It relevantly reads:

7. [77]

   The Local Government Decision, Local Government Costs Decision, Appeal Panel Decision, Smith Decision and Smith Costs Decision are “profession decisions” under cl 29(1)(f), being decisions for the purposes of the Local Government Act. The Appeal Panel Decision is also a “non-lawyer appeal” under cl 29(4)(b).

8. [78]

   It would appear that the effect of these provisions is as follows. Pursuant to cl 29(1)(b), Sch 5 of the CAT Act, the plaintiff may appeal as of right on a question of law, or with the leave of this Court on other grounds, in respect of the Local Government Decision and the Smith Decision. Pursuant to cl 29(6)(c), Sch 5 the CAT Act, the plaintiff may seek leave to appeal on a question of law in respect of the Local Government Costs Decision and Smith Costs Decision. Finally, pursuant to either cl 29(6)(c), Sch 5 or s 83(1) of the CAT Act, the plaintiff may seek leave to appeal on a question of law in respect of the Appeal Panel Decision.

9. [79]

   Because of the effect of these provisions, in addition to the framework of the plaintiff’s grounds of appeal, it is convenient that I address the issues raised in paras [3] and [4] of the defendants’ notice of motion as they arise in the plaintiff’s grounds of appeal and proposed grounds of appeal.

10. [80]

    The grounds of appeal as they relate to the Local Government Costs Decision, Appeal Panel Decision, and Smith Costs Decision require leave. The defendants oppose the granting of leave.

11. [81]

    The plaintiff submitted that leave should be granted for the following reasons: firstly, because NCAT erred in construing and applying the statutory tests as to whether s 329 of the Local Government Act was breached by each defendant in his or her capacity as a councilor; secondly, on the basis that NCAT erroneously relied on disputed common law tests as to disputed returns rather than the statutory tests under the Local Government Act framework; and thirdly, because NCAT erred in construing and applying the statutory discretions and powers as to costs under s 60 of the CAT Act, and that because “integrity should be done and should be seen to be done in the conduct of local government”, the issues raised in the plaintiff’s appeal are in the public interest.

12. [82]

    The defendants submitted that in order to appeal to this Court, a question of law is required, and even then, that does not of itself grant a right of appeal. Relevant factors to take into consideration of whether to grant leave include the length of the delay and the prospects of success of the appeal: Woodhouse v Thalis [2018] NSWCA 97.

13. [83]

    Whenever considerations of leave are involved, it is appropriate for the Court to have regard to s 60 of the Civil Procedure Act. Further, the principle of finality in litigation must dictate that on appeal a litigant is bound by concessions made at first instance. This is relevant to the extent that any grounds of appeal seek to detract from concessions made and require leave to proceed. Further, no litigant, whether represented or not, should be afforded “special” treatment or allowances in the conduct of a hearing of another party. What is required by the obligation to afford procedural fairness is dictated by practical considerations and depends on the circumstances of the individual case: Whall v Stamp [2019] NSWCA 163; Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13; Bauskis v Liew [2013] NSWCA 297.

14. [84]

    Issues of competency under UCPR, r 50.16A arise when there are issues as to whether the grounds put forward are capable of satisfying any necessary leave requirements and potentially when there are issues as to form and compliance with the rules in the summons: Crane v Mission to Seafarers Newcastle Inc [2018] NSWSC 429 at [25] per Davies J.

15. [85]

    Two cases which set out the principles governing leave to appeal are Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (“Das”) and Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 (“Lee”).

16. [86]

    In Das, the Court of Appeal set out the principles to be considered in deciding whether leave to appeal should be granted. At [32]-[33], [35], Basten JA stated:

17. [87]

    Similarly, in Lee, Bathurst CJ at [12] outlined the principles relevant to the granting of leave as follows:

18. [88]

    Where, as here, an appeal can only be on a question of law, then the absence of identifiable questions of law will obviously be fatal to a leave application.

19. [89]

    An appeal on a question of law is not merely a qualifying condition to the right of appeal. Rather, the question of law must comprise the subject matter of the appeal: see Davis v NSW Land and Housing Corporation [2016] NSWCA 325 per McColl JA at [77]. Questions of law are not to be distilled from the grounds of appeal itself, but should be clearly identified: see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 per French CJ, Gummow and Bell JJ at [21]. Questions of law should not simply be statements to the effect that the Tribunal made legal errors, but should state questions of law to support the orders sought on appeal: see Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; (2003) 202 ALR 450 per Branson J at [47].

20. [90]

    Further, s 60 of the Civil Procedure Act dictates that the practice and procedure of this Court should be implemented with the object of resolving the dispute in question proportionately with the importance and complexity of its subject-matter. Consequently, where the costs of the trial are disproportionate to the amount in dispute, the incurring of additional costs, for a potentially uncertain return, will be a factor weighing heavily against a grant of leave. That principle must apply with even more force where there has already been a trial and a first appeal.

21. [91]

    Section 58 of the Civil Procedure Act requires this Court to act in accordance with the dictates of justice and applies in respect of an application for leave. One of the factors to be taken into account pursuant to s 58 is “the degree of injustice that would be stifled by the respective parties as a consequence of any order or direction”: s 58(2)(b)(vi). That provision recognises that questions of injustice are relative. The delay and cost of further litigation constitutes a form of injustice to the successful party below, whatever the outcome of the appellate process.

22. [92]

    With these principles in mind, in relation to the decisions which require leave, I will consider whether the questions raised in the plaintiff’s grounds of appeal are more than merely arguable.

23. [93]

    The amended grounds of appeal are set out at para [3] of the plaintiff’s amended summons and reproduced earlier in this judgment.

24. [94]

    Although it is not clear from the amended summons, grounds 3(a), (c), (d), (f) and (g) must relate solely to the Smith Decision. It also appears from the plaintiff’s submissions that ground 3(i) relates to the Local Government Costs Decision, Smith Costs Decision and Appeal Panel Decision. Ground 3(b) appears to relate to the Smith Costs Decision. Grounds 3(e) and (h) appear to relate to the Smith Decision and the Smith Costs Decision. Ground 3(j) appears to relate to the Local Government Decision and the Appeal Panel Decision. Finally, ground 3(k) must relate solely to the Local Government Costs Decision, the Smith Costs Decision and the Appeal Panel Decision.

25. [95]

    Plainly, the plaintiff has not separated his grounds of appeal in relation to the decisions which require leave to appeal, and those which may be appealed as of right. Where a ground of appeal relates to the Local Government Costs Decision, Appeal Panel Decision and/or Smith Costs Decision, I will consider whether the ground of appeal raises questions of law which are more than merely arguable, such as to grant leave. Where a ground relates to the Local Government Decision and the Smith Decision, for which leave is not required, I will consider whether to uphold the plaintiff’s appeal.

26. [96]

    As several grounds relate to substantially similar alleged errors of law, it is convenient that I consider those grounds together. As such, I will consider the grounds of appeal in the following order: firstly, grounds 3(a), (c), (d), (f), and (g) together; secondly, ground 3(i); thirdly, ground 3(b); fourthly, grounds (e) and (h) together; fifthly, ground 3(j); and finally, ground 3(k).

27. [97]

    These grounds of appeal are as follows:

28. [98]

    Again, although it is not clear from the amended summons, the plaintiff’s submissions indicate that these grounds must relate solely to the Smith Decision. Under cl 29(1)(b) Sch 5 of the CAT Act, the plaintiff may appeal as of right on a question of law, or with the leave of this Court on other grounds, in respect of the Smith Decision.

29. [99]

    The plaintiff submitted that in the Smith Decision, the Tribunal considered the relationship between Cr Smith and a developer in circumstances where it appeared that Cr Smith held a substantial interest in a development company, but where he contended that he had no voting rights. Councillor Smith did not produce the company records to demonstrate that he didn’t have voting rights, or to demonstrate that he had no influence over the company's affairs.

30. [100]

    At the hearing of these proceedings, the plaintiff submitted that in the Smith Decision, the Tribunal erred in stating at par 25:

31. [101]

    The plaintiff submitted that this statement was clearly incorrect. At par 11 of its reasons, the Tribunal set out Cr Kelly’s submissions as follows:

32. [102]

    The plaintiff argued that he had made submissions to the Tribunal in relation to Mr Smith’s father’s company, of which Mr Smith admitted to owning at least 20% shares, as opposed to the two companies which Mr Smith had said weren’t property development companies.

33. [103]

    The plaintiff submitted that in dismissing or refusing to examine the matter, NCAT referred in error to the principle that it was “necessary for Mr Kelly to demonstrate that the result of any irregularity would have rendered the results of the election uncertain”, where the question related to the qualification and standing of Crs Szatow and Smith in the candidate disclosure, which reasonably may have had that result, rather than any irregularity in the conduct or mechanics of the poll by the returning officer: Chanter v Blackwood [No 1] (1904) 1 CLR 39; [1904] HCA 2 (“Blackwood”) per Griffith CJ.

34. [104]

    According to the plaintiff, after the Electoral Commission conducted an investigation into the issues in this case at his request, it recommended to him, after withholding its investigation report, that he proceed before NCAT with his concerns. According to the plaintiff, he informed NCAT of this course and proceeded under s 329 of the Local Government Act. The plaintiff submitted that this was a reasonable course to take, and not a basis for the imposition of a costs order against him.

35. [105]

    Firstly, the defendants submitted that the evidential basis for saying that it was the Electoral Commission that “recommended” to the plaintiff that he take his matter to NCAT is not identified. It is not clear how that fact, even if evidenced and correct, has any bearing on whether the plaintiff has identified an error of law in appealing the Smith Costs Decision. Rather, it would appear to be an additional factual matter which would be relevant, should the plaintiff wish to raise it, if entitled to a rehearing on the merits of the Smith Costs Decision.

36. [106]

    The defendants submitted that the other grounds of appeal relate to the second component of the Tribunal’s ratio in the Smith Decision, namely, that even if the information on the Candidate Information Sheet was found to have been incorrect, there was no evidence to show that the irregularity would have resulted in a different election outcome. The first component of the Tribunal’s ratio was its finding of fact that there was no evidence on which it could be found that information in the Candidate Information Sheet was incorrect.

37. [107]

    The defendants also submitted that there is no ground in the plaintiff’s summons which relates to the principle basis on which the Smith Decision was made. That finding of fact must be challenged in order for any appeal from the decision to have utility. As no ground has been raised in respect of the factual finding that there was no evidence to show that the Candidate Information Sheet was incorrect, the defendants submit that even if these two grounds of appeal were made out, the appeal from the Smith Decision would still be futile.

38. [108]

    Section 329 of the CAT Act reads:

39. [109]

    The plaintiff brought his application to the Tribunal in the Smith Proceedings under s 329 of the CAT Act, alleging that incorrect disclosures made on Mr Smith’s Candidate Information Sheet constituted an “irregularity” under s 329(1)(a).

40. [110]

    The Tribunal’s reasons for dismissing the plaintiff’s application in the Smith Decision are at [25]-[26]:

41. [111]

    The first ground of appeal seeks to challenge the Tribunal’s finding of fact at [25] of its decision that there was no evidence on which it could find that the information in the Candidate Information Sheet was incorrect.

42. [112]

    The Tribunal’s summary of the available evidence is set out at [13]-[18] of its decision. At [13], the Tribunal addressed the evidence of Mr Kelly, including that his ASIC searches, “scouring” of the internet, and other efforts had produced no evidence to contradict the affidavit of Mr Smith that he was not a property developer. At [15]-[18], the Tribunal outlined the evidence given by Mr Smith that he was not a property developer, or a close associate of a corporation that is a property developer within the meaning of reg 290 of the Local Government Regulations. The Tribunal noted at [16] that the onus is not on the defendant, but on the plaintiff to prove his case. Nevertheless, the defendant’s evidence was not contradicted by the plaintiff.

43. [113]

    The Tribunal’s finding of fact at [25] was supported by evidence and reasons, and is not subject to appeal in this Court. For these reasons, the Tribunal did not err. Grounds 3(c) and (d) fail.

44. [114]

    Grounds 3(a), (f) and (g), although phrased in different ways, further allege that the Tribunal erred in the test it set out at [26] of its decision, where the Tribunal stated that to succeed in his application, the plaintiff would have to have demonstrated that “the result of any irregularity would have rendered the results of the election uncertain.” Counsel for the plaintiff has argued that the Tribunal’s test at [26] sets too high a bar for the plaintiff, who should only have been required to demonstrate that the alleged incorrect information “could have made a difference” to the election.

45. [115]

    The Tribunal’s reasons in relation to its finding at [26] appear at [19]-[22] of its decision. At [19], the Tribunal set out s 329 of the Local Government Act as reproduced above. At [20]-[22], the Tribunal stated:

46. [116]

    The Tribunal went on to state at [23]-[24] that the onus of proof rests with the plaintiff, on the balance of probabilities: see Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATOD 137 at [18]; Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at [10]-[11].

47. [117]

    At the hearing of these proceedings in this Court, counsel for the plaintiff referred to Blackwood at 58-59 per Griffith CJ, where his Honour stated:

48. [118]

    Counsel for the plaintiff submitted that in these proceedings, which involve an alleged failure by the candidate to disclose a relationship in accordance with regulations, requiring the plaintiff to prove that the alleged irregularity affected the election would require breaching the secrecy of the ballot (T 40.43-46). For those reasons, the Court in Blackwood stated that all that the plaintiff must show is that the alleged irregularity “could have made a difference” to the election (T 40.48).

49. [119]

    It is my view that the plaintiff’s submissions are misguided. Firstly, the authorities to which the Tribunal refers in its reasons set out a clear test, which is reflected in the Tribunal’s determination at [26]. In Bourne v Murphy [1996] NSWCA 59, to which the Tribunal refers in the Smith decision at [22], Beazley JA stated at 358 that “it is not any irregularity which suffices for the purpose of s 329 [of the Local Government Act]. Rather, it must be an irregularity such that the result of the election is thereby uncertain.” It is this test to which the Tribunal referred at [26], where it held that the plaintiff bore the onus of proof in his application.

50. [120]

    Secondly, the requirement in Blackwood is that there be reasonable ground to believe that the majority of electors may have been prevented from electing their preferred candidate. This is not the same as the plaintiff’s submission that he only be required to prove that the alleged breach of regulations “could have made a difference” to the election. The Tribunal’s phrasing of “would have rendered the results of the election uncertain” seems to fit the plaintiff’s statement of the test in any regard.

51. [121]

    Finally, and most importantly, the test set out in Blackwood is one which is met by the first part of the Tribunal’s decision, which is that there was no evidence that the information was incorrect. That is to say, the Tribunal had found that there was no reasonable ground to believe that the majority of electors may have been prevented from electing their preferred candidate. For these reasons, it is my view that the Tribunal did not err. Grounds 3(a), (d), (f) and (g) also fail.

52. [122]

    This ground of appeal is that each decision was made in excess of jurisdiction. Although it is not clear from the amended summons, the submissions suggest that the ground relates to the Local Government Costs Decision, Smith Costs Decision and Appeal Panel Decision. Pursuant to cl 29(6)(c), Sch 5 of the CAT Act, the plaintiff must seek leave to appeal on a question of law in respect of the Local Government Costs Decision and Smith Costs Decision. The same is true of the Appeal Panel Decision, pursuant to either s 83(1) or cl 29(6)(c), Sch 5 of the CAT Act. As such, I will now turn to consider whether this ground of appeal raises a question of law that is more than merely arguable.

53. [123]

    The plaintiff submitted that the Tribunal erred in making an order as to costs in circumstances where it lacked authority to hear the matter. Counsel for the plaintiff referred to Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 (“Gaynor”) as authority for the proposition that where NCAT lacks jurisdiction to hear a case, it also lacks jurisdiction to make an order as to the costs of the proceedings. In Gaynor, Leeming JA at [106] stated:

54. [124]

    The plaintiff submitted that NCAT never issued a determination with reasons nor published orders. He referred to Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; 241 CLR 390 and Minister for Immigration v SZVFW [2018] HCA 30; 357 ALR 408 as cases which outline the Court's role in exercising review of such cases. The plaintiff also referred to Gaynor v Burns [2016] NSWCA 44 (“Burns”) per McColl JA and Emmett AJA, where the Court of Appeal granted leave to appeal on costs as part of an appeal from an NCAT appeal panel.

55. [125]

    On 3 September 2019, after the hearing of these proceedings in this Court, the case of Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134 (“Cornish”) was handed down. The plaintiff sought to address the Court in respect of the relevance of Cornish to the issue of jurisdiction in these proceedings. By further written submissions, the plaintiff submitted that similarly to Cornish, the relevant order sought by the plaintiff in these proceedings in his amended summons pursuant to cll 29(2)(b), (4)(b), (7) and (8), Sch 5 of the CAT Act and/or the Court’s powers under s 69 of the Supreme Court Act was that each determination be set aside or reviewed and/or quashed.

56. [126]

    The plaintiff submitted that in Cornish, the Court held that if the underlying decision for review in NCAT is void, NCAT is deprived of jurisdiction. Without jurisdiction, NCAT is unable in such cases to make costs orders. In Cornish, the Council and then NCAT purported to rely on s 440J and/or 440N for its powers, which were non-existent, resulting in an absence of NCAT’s jurisdiction to determine the matter and requiring this Court to make an order quashing the decision with costs.

57. [127]

    The plaintiff reiterated his submission that in Gaynor, the Court of Appeal determined that NCAT had no power to make a costs order in absence of jurisdiction in a particular matter. The Court of Appeal granted leave to appeal from the costs order made and then declared the order void, along with the proceedings in the final hearing.

58. [128]

    The plaintiff submitted that as Basten JA made clear in Cornish, NCAT has no jurisdiction to consider or make such orders, and that this Court should properly exercise its supervisory jurisdiction under Kirk v Industrial Relations Commission of New South Wales [2010] HCA to set aside the Tribunal’s wrongful decision.

59. [129]

    The plaintiff conceded that in the case of the Smith Costs Decision, the issue is more complicated. Councillor Kelly brought his claim under s 329 of the Local Government Act. The plaintiff submitted that the unreasonableness of the application as to costs in the Smith Proceedings under s 60(2) of the CAT Act is that the Electoral Commission recommended to Cr Kelly that he take the matter to NCAT. However, the plaintiff submitted that he was not responsible for what occurred in NCAT in relation to costs, as he appeared for himself.

60. [130]

    The plaintiff submitted that the issue of jurisdiction in relation to the adverse costs order made against him is as follows. The Tribunal sat in the wrong division, being the Administrative and Equal Opportunity Division instead of the Occupational Division. As such, the plaintiff submitted that the Tribunal acted without jurisdiction: see cl 4, Sch 5 of the CAT Act.

61. [131]

    There are special provisions in the constitution of the Tribunal and in respect of the panel qualifications for each division under different statutes. These differentiate the Occupations Division from the Administrative and Equal Opportunity Division where the Tribunal sat in error. The plaintiff submitted that cl 16(2), Sch 3 of the CAT Act provides that “[t]he functions of the Tribunal in relation to enabling legislation that are allocated to a Division of the Tribunal are to be exercised in that Division.” The plaintiff submitted that such a jurisdictional restriction was not relevant to this case.

62. [132]

    Accordingly, the plaintiff submitted that if the Court does not accept his argument that the wrong test under s 329 was adopted, the costs order should not have been made because the Tribunal acted without jurisdiction.

63. [133]

    The defendants submitted that the Local Government Decision did not involve any question of jurisdiction. The Tribunal simply applied established principles in its finding that special circumstances merited an award for costs. Further, the defendants submit that the two sections in the CAT Act, which the plaintiff referred to as a basis for this ground of appeal, are not relevant to the Local Government Costs Decision. This ground is therefore of no application to that decision and is bound to fail.

64. [134]

    Secondly, the defendants submitted that the Appeal Panel Decision proceeded on the basis that the Tribunal lacked jurisdiction, but in any event would not have granted leave to appeal and considered no discretion had miscarried. That is, both possibilities of jurisdiction are covered by the ratio of the decision. The argument that the Tribunal did not have jurisdiction to decide that it did not have jurisdiction is difficult to comprehend. It is impossible to fathom how such an argument could succeed. In any event, even if such an argument was somehow successful, as no ground is brought in the summons appealing the findings that formed the secondary part of the Tribunal’s ratio, the appeal from this proceeding is futile.

65. [135]

    The defendants submitted that Cornish is not authority for the proposition proposed, because Cornish does not concern any question of costs or jurisdiction to make costs orders with respect to a void decision of NCAT. Costs were only referred to in the decision at [3] and [94] in the sense that the unsuccessful party was ordered to pay the costs of the successful party. The defendants submitted that Cornish really concerns whether a particular decision of NCAT was without jurisdiction, or erroneously involved NCAT making a decision limiting its jurisdiction: see [17]-[18]. These jurisdictional issues were specific to the decision in Cornish, and not analogous to these proceedings.

66. [136]

    Further, the defendants submitted that the plaintiff has incorrectly stated that in Cornish, an absence of jurisdiction resulted in the Court making “an order quashing the decision with costs”. Nowhere in Cornish did the Court quash the previous decision insofar as it related to costs. On the contrary, the orders at [94] state that the Court “Set aside the order of the Civil and Administrative Tribunal made on 12 July 2018”. The defendants submitted that the underlying decision of Cornish at [16] states that the question of costs was reserved, and the only order made was that “The respondent’s right to payment is suspended for a period of three months from the date of these reasons”. As this was the only order made, this was the only order set aside on appeal in Cornish. This explains the reference that is made to “consequential relief” in Cornish at [92].

67. [137]

    Section 60 of the CAT Act relates to costs. It reads:

68. [138]

    Section 29 of the CAT Act sets out the Tribunal’s jurisdiction. It relevantly reads:

69. [139]

    Section 4 of the CAT Act relevantly defines:

70. [140]

    Under s 60(2) of the CAT Act, the Tribunal may award costs in relation to “proceedings before it” where it is satisfied that special circumstances warrant an award of costs. Section 60(5) states that “costs” include the costs of, or incidental to, the proceedings in the Tribunal. Although s 60 of the CAT Act does not refer to circumstances in which the Tribunal lacks jurisdiction to decide the case before it, s 29(2)(a) states that the Tribunal has general jurisdiction to make “ancillary decisions” in its proceedings, which are defined under s 4 to include decisions concerning the awarding of costs.

71. [141]

    At the hearing of these proceedings in this Court, counsel for the defendants referred to Trust Company Ltd v Diamond Certification Laboratory of Australia Pty Ltd [2016] NSWCATAP 63 (“Diamond”). In Diamond, an NCAT Appeal Panel addressed the effect of s 60 of the CAT Act as follows:

72. [142]

    In Doula Spirit Pty Ltd v Andrew Argyrou [2014] NSWCATCD 227 (“Doula”), the case to which the Appeal Panel in Diamond referred at [30], the Appeal Panel determined that a finding that the Tribunal lacked jurisdiction to hear a claim may be relevant to determining whether to award costs, as such proceedings may for that reason have been “misconceived or lacking in substance” under s 60(3)(e) of the CAT Act.

73. [143]

    When presented with the defendants’ submissions in relation to ss 60, 29 and 4 of the CAT Act at the hearing of these proceedings, counsel for the plaintiff referred to the cases of Burns and Gaynor. As the plaintiff made substantial submissions in relation to these decisions, it is necessary to consider the cases in some detail.

74. [144]

    The proceedings which gave rise to the decision in Gaynor involved the question of whether the Tribunal had jurisdiction to hear a claim brought under the Anti-Discrimination Act 1977 (NSW) against Mr Gaynor, a non-resident of NSW. The Tribunal at first instance had determined it had jurisdiction, and made an adverse order against him as to costs. On appeal to the NSW Court of Appeal in Gaynor, Mr Gaynor was successful in reversing the Tribunal’s decision as to jurisdiction. In respect of the decision, Leeming JA at [105] stated:

75. [145]

    At [106], Leeming JA stated that in those circumstances, it was appropriate to accede to Mr Gaynor’s submission, and simply dismiss the appeal. It was established that the costs order made against Mr Gaynor by NCAT could not be enforced.

76. [146]

    In Gaynor at [105]-[106], Leeming JA dismissed the respondent’s concurrent appeal in relation to costs, with the result being that the original costs order against Mr Gaynor in respect of the overturned decision could not be enforced.

77. [147]

    At [105] of his decision, Leeming JA limited his determination to the circumstances of that case. However, if his Honour’s statements at [105]-[106] are to stand for a general proposition, it is at best that where a party is successful in appealing a decision of NCAT, and an adverse costs order has been made against the party in respect of that decision, it may be that the adverse costs order is not enforceable. This relatively uncontroversial statement does not support the plaintiff’s submission in these proceedings that where NCAT lacks jurisdiction to hear a claim, it lacks jurisdiction to award costs.

78. [148]

    The “costs order” to which Leeming JA referred at [106] of his decision was the subject of Burns. In Burns, the Court of Appeal (per McColl JA and Emmett AJA) considered an appeal from the decision of an NCAT Appeal Panel, which had found that special circumstances warranted an award of costs against Mr Gaynor under s 60(3) of the CAT Act. Amongst other considerations, the Appeal Panel had taken into account Mr Gaynor’s conduct before the Tribunal at first instance. In Burns, the Court of Appeal held that because s 60 of the CAT Act confers jurisdiction to the Tribunal to determine costs in respect of “proceedings before it”, the question of whether the proceedings at first instance were relevant to a determination under s 60(3) involved an issue of principle warranting a grant of leave to appeal.

79. [149]

    In Burns at [40]-[42], the Court of Appeal stated:

80. [150]

    Again, in my view I do not see how Burns stands for the principle advanced by the plaintiff in these proceedings. Burns considers whether an NCAT Appeal Panel may take into consideration matters outside of the “proceedings before it”, such as the conduct of a party in the hearing at first instance. The Court of Appeal held that this issue raised a real question of law and warranted a grant of leave to appeal. As in Gaynor, however, the Court of Appeal does not provide authority for the proposition that where NCAT lacks jurisdiction to hear a case, it also lacks jurisdiction to make an order as to the costs.

81. [151]

    After the hearing of these proceedings, Cornish was handed down in this Court. In further written submissions, the plaintiff sought to argue that in Cornish, the Court held that where NCAT makes a decision that is later found to be void, the Tribunal is deprived of jurisdiction to make a costs order with respect to the original decision. This is an analogous argument to that originally submitted by the plaintiff in relation to Burns and Gaynor above. For the reasons given below, it is my view that the plaintiff’s further written submissions concerning Cornish did nothing to advance his argument, but simply provided a pretext for him to elaborate on his earlier submissions.

82. [152]

    Like these proceedings, Cornish also concerned the Tribunal’s jurisdiction under the Local Government Act. In Cornish, the Court considered an appeal brought by Mr Cornish, a civil councillor, from a Tribunal decision to suspend his right to payment for breaching his Council’s Code of Conduct.

83. [153]

    In respect of the issues on appeal in Cornish, Basten JA stated at [17]-[18]:

84. [154]

    For reasons which are not relevant to these proceedings, Basten JA in Cornish determined that there had been no basis on which to refer the disciplinary proceeding to NCAT. As such, Mr Cornish was entitled to have the Tribunal’s decision to suspend his pay set aside, and the primary application dismissed ([93]).

85. [155]

    Having made his determination that the Tribunal lacked jurisdiction, Basten JA made the following orders at [94]:

86. [156]

    I agree with the defendants’ submission that “the order” to which Basten JA refers in order (1) above is the Tribunal’s singular order of 12 July 2018 that Mr Cornish’s right to payment be suspended for a period of three months. As such, Basten JA makes no orders as to the costs of the proceedings before the Tribunal. Moreover, it does not follow from the reasons in Cornish that where the Tribunal lacks jurisdiction, it lacks jurisdiction to award costs.

87. [157]

    Section 60(2) of the CAT Act states that the Tribunal may award costs in relation to “proceedings before it” where it is satisfied that special circumstances warrant an award of costs. Section 60(5) states that “costs” include the costs of, or incidental to, the proceedings in the Tribunal. Section 29(2)(a) of the CAT Act further states that the Tribunal has general jurisdiction to make “ancillary decisions” in its proceedings, which are defined under s 4 to include decisions concerning the awarding of costs. The legislation confers the Tribunal with jurisdiction to award costs in relation to proceedings before it. The plaintiff has failed to demonstrate that any of the decisions as to costs were made in error. In my view, ground 3(i) does not raise a question of law which is more than merely arguable. Leave to appeal on this ground is refused.

88. [158]

    This ground of appeal is that each decision misconstrued Schs 3 and 5 of the CAT Act. It appears from the plaintiff’s submissions that ground 3(b) relates to the Smith Costs Decision. Pursuant to cl 29(6)(c), Sch 5 of the CAT Act, the plaintiff must seek leave to appeal on a question of law in respect of the Smith Costs Decision. As such, I will now turn to consider whether this ground raises a question of law which is more than merely arguable.

89. [159]

    By further written submissions, the plaintiff submitted that in the Smith Costs Decision, the Tribunal sat in the wrong division. The reasons are published stating the division as the Administrative and Equal Opportunity Division, rather than the Occupational Division. As such, the plaintiff submitted that the Tribunal acted without jurisdiction: see cl 4, Sch 5 of the CAT Act.

90. [160]

    The plaintiff submitted that there are special provisions as to the constitution of the Tribunal and appeal panel qualifications for each division under different statutes, and which differ in this case from the Administrative and Equal Opportunity Division where the Tribunal sat in error: see, for example, cl 16(2), Sch 3 of the CAT Act which provides, “The functions of the Tribunal in relation to enabling legislation that are allocated to a division of the Tribunal are to be exercised in that Division.” That restriction, which is jurisdictional, was not observed in this case.

91. [161]

    Accordingly, the plaintiff submitted that if the Court does not accept his primary argument that the wrong test under s 329 was adopted, the costs order should not have been made, as the Tribunal acted without jurisdiction.

92. [162]

    The defendants submitted that this argument was not previously articulated on the pleadings, in submissions or at the hearing. For these reasons alone, and in light of considerations of procedural fairness, it should be disregarded.

93. [163]

    In any event, the proposition put is predicated on the premise that jurisdiction of the Tribunal is separated out into divisions (to the exclusion of other divisions). Yet nowhere in Part 3 of the CAT Act does the conferral of jurisdiction on the Tribunal bear out such a distinction or premise. The plaintiff’s supplementary submissions do not identify case law or a provision which supports this premise, or make any arguments as to why, as a matter of policy, this should be the case. The breadth of ss 28 and 29 of the CAT Act indicate that the jurisdiction afforded to the Tribunal is not predicated on the exercise of functions in various divisions. In that context, the argument must be rejected.

94. [164]

    This submission rises no higher than the proposition that the Tribunal lacks jurisdiction to make an order as to costs where it lacked jurisdiction to make the underlying principal decisions. For the reasons already submitted, the defendants argue that this proposition is incorrect and unknown to law.

95. [165]

    Notwithstanding the defendants’ objections, and only to the extent that the Tribunal is prepared to consider this new ground of appeal, the defendants sought to rely on the affidavit of Julian Phillip Peake affirmed 23 October 2019. This affidavit clarifies that the notation of “Administrative and Equal Opportunity Division” on the Smith Costs Decision is a typographical error and that the application was heard and the decision made in the Occupation Division as constituted by a panel of members who met the requirements of Sch 5 of the CAT Act.

96. [166]

    Finally, the defendants submitted that the plaintiff has not adduced any evidence on this issue, and that his complaint is merely speculative.

97. [167]

    The plaintiff made no written or oral submissions in relation to this ground of appeal at the hearing of these proceedings. After the hearing, I granted the plaintiff the opportunity to make further written submissions which were limited to addressing Cornish, which had been handed down on 3 September 2019. It was in those written submissions that the plaintiff first made submissions in relation to this ground of appeal.

98. [168]

    Even still, there is a disconnect between those submissions and the ground of appeal as articulated in the plaintiff’s amended summons. Although the ground states that the Tribunal “misconstrued” Schs 3 and 5 of the CAT Act, the submissions allege that the Tribunal lacked jurisdiction to award costs because the Tribunal sat in the wrong jurisdiction. Additionally, although the ground of appeal refers to “each decision”, the submissions are specific to the Smith Costs Decision.

99. [169]

    In the Smith Costs Decision, the division is listed as “Administrative and Equal Opportunity Division”. The affidavit of Julian Peake states that the judgment contains a typographical error, and should have stated “Occupation Division” (Aff, 23 October 2019 at [6]-[8]). I am satisfied by this explanation. As such, it is my view that this ground of appeal does not raise a question of law which is more than merely arguable. Leave to appeal on this ground is refused.

100. [170]

     Grounds 3(e) and (h) assert that the Tribunal failed to exercise natural justice and/or failed to proceed according to law. It alleges that the Tribunal did so firstly, by failing to make legal representation available to the plaintiff, who was an unrepresented litigant; and secondly, by failing to give directions to that effect and by failing to inform and assist him to the fullest extent appropriate of the issues and evidence that the proceedings concerned. Thirdly, that the Tribunal constructively failed to exercise its jurisdiction with respect to the matter or matters before it.

101. [171]

     Grounds 3(e) and 3(h) appear to relate to the Smith Decision and the Smith Costs Decision. As outlined earlier, the plaintiff may appeal on a question of law as of right in relation to the Smith Decision, and with leave in relation to the Smith Costs Decision.

102. [172]

     At the hearing of these proceedings, counsel for the plaintiff submitted that although the plaintiff brought his claim in the Local Government Proceedings under s 440 of the Local Government Act, the Tribunal should have considered the claim as if it had been brought under s 329 of the Act. The plaintiff’s submission was that in failing to address the substance of his claims in those proceedings, the Tribunal failed to afford him procedural fairness. He also submitted that this failure to consider the claim also constituted a failure to exercise jurisdiction.

103. [173]

     Ground 3(e) is predicated on the proposition that the Tribunal had an obligation to make legal representation available to a self-represented litigant or has a responsibility to inform and assist him “to the fullest extent appropriate”. The defendants submitted that this ground of appeal is bound to fail for the following reasons.

104. [174]

     Firstly, the defendants submit that there is no obligation at law for a court or tribunal to provide or arrange for legal representation. Self-represented litigants are not entitled to special treatment. What is required by procedural fairness depends on the particular circumstances.

105. [175]

     Secondly, there is no articulation in the proposed summons of what directions should have been given to the self-represented litigant to inform and assist him to avoid the alleged procedural unfairness. That is, no specific aspect of unfairness has been identified.

106. [176]

     Thirdly, the Local Government Costs Decision and Smith Costs Decision were decided on the papers. It is difficult to see how there can be said to have been any denial of procedural fairness in these cases by a failure to “inform and assist”.

107. [177]

     The plaintiff brought his application before the Tribunal in the Local Government Proceedings under s 440 of the Local Government Act. The substance of his case in relation to Cr Santow was that the councillor had failed to disclose his relationship with a property developer, in contradiction of relevant regulations.

108. [178]

     Section 440 of the Local Government Act states that regulations may prescribe a model code of conduct applicable to councillors. At [16] of the Local Government Costs Decision, the Senior Member referred to s 440(8) of the Local Government Act, which states that “nothing in this section or such a code gives rise to, or can be taken into account in, any civil cause of action.”

109. [179]

     In the Local Government Decision, the Senior Member dismissed the plaintiff’s application in the Tribunal for want of jurisdiction. That decision is summarised in the Local Government Costs Decision at [44]-[46], where the Senior Member stated:

110. [180]

     At [23] of the Local Government Costs Decision, the Senior Member had also noted that during the hearing of the Local Government Proceedings, the plaintiff conceded that “the matter may not have been within the Tribunal’s jurisdiction”.

111. [181]

     Nevertheless, the plaintiff now argues that in failing to consider the substance of his claim concerning Cr Santow, the Senior Member failed to afford the plaintiff procedural fairness.

112. [182]

     At the hearing of these proceedings, counsel for the plaintiff submitted that ss 28 and 29 of the CAT Act are relevant to this ground of appeal, in that they obliged the Tribunal to address the “real issues of the proceedings”. I have extracted s 29 of the CAT earlier in this judgment. Section 28 of the CAT reads:

113. [183]

     Counsel for the plaintiff further referred to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088 (“Dranichnikov”). He argued that in Dranichnikov, the High Court held that where a party presents information about a case, which upon proper analysis is a proper ground for that party’s success, then the mere fact that the party has misstated the basis upon which it approached the Court is not an answer to it (T 39.8-12).

114. [184]

     In Dranichnikov, the High Court stated at [24]:

115. [185]

     Like Mr Dranichnikov, the plaintiff in these proceedings was unrepresented in his action before the Tribunal. Counsel for the plaintiff submitted that although the plaintiff brought his claim under s 440 of the Local Government Act, the Tribunal should have realised that it was “clearly a s 329 case, in respect of which he was in the right place for the right reasons” (T 39.48-49). The plaintiff argued that it was this failure to consider his application as if it had been brought under the appropriate section of the Local Government Act that constituted a failure to afford him natural justice, and a failure to exercise jurisdiction.

116. [186]

     There are three reasons why, in my view, this submission is misconceived. The first is that on the same day the plaintiff brought the Local Government Proceedings before the Tribunal under s 440 of the Local Government Act, he also brought the Smith Proceedings under the appropriate section, s 329. Despite being self-represented, his concurrent action brought on 25 October 2017 shows that he was aware of the appropriate section.

117. [187]

     Secondly, this ground of appeal seems to allege that the Tribunal was obliged, “of its own motion” and by reference to ss 28 and 29 of the CAT Act, to investigate and correct the plaintiff’s application. Such an obligation would require the Tribunal to determine whether the substance of the plaintiff’s claim might be brought under another provision of the Local Government Act and then address the application on that basis.

118. [188]

     This submission cannot be correct. In Bauskis v Liew [2013] NSWCA 297 (“Bauskis”), Gleeson JA addressed the court’s duties in respect of self-represented litigants at [67]-[70]:

119. [189]

     Although NCAT lacks some of the formalities of a court, the principles which Gleeson JA outlines above in Bauskis are equally relevant to proceedings within the Tribunal. The Tribunal was under no obligation to advise the plaintiff as to how he should exercise his rights or advise him as to how he should conduct his case, such as suggesting he reframe the proceedings under a different section of the Local Government Act. The plaintiff was as subject to the rules of the Tribunal as any other litigant.

120. [190]

     Thirdly, and on a related point, Dranichnikov is not an authority for the proposition that the Tribunal, in circumstances where it has found (and the plaintiff has conceded) that it lacks jurisdiction to hear a claim, must nevertheless consider the substance of that claim. The Tribunal’s obligation to afford the plaintiff procedural fairness is an obligation to respond to a “substantial, clearly articulated argument”. In my view, the plaintiff’s application brought under s 440 of the Local Government Act cannot be said to be a “clearly articulated argument” brought under s 329 of the Act, nor was the Tribunal’s failure to consider it as such in error.

121. [191]

     Similarly, as the Tribunal’s failure to consider the claim as if it had been brought under s 329 of the Local Government Act was not in error, neither did it constitute a failure to exercise jurisdiction. For these reasons, it is my view that in relation to the Smith Decision, the Tribunal did not err. These grounds of appeal must fail. In relation to the Smith Costs Decision, the questions of law raised by these grounds of appeal are not more than merely arguable. As such, leave to appeal on these grounds is refused.

122. [192]

     This ground of appeal is that the Tribunal erred in failing to give any or sufficient reasons for the Local Government Decision, the Smith Decision, and the Appeal Panel Decision.

123. [193]

     As outlined earlier, the plaintiff may appeal as of right in relation to the Local Government Decision and the Smith Decision, and with leave in relation to the Appeal Panel Decision.

124. [194]

     In his written submissions, the plaintiff did not identify in what way any of the reasons in the relevant decisions were insufficient.

125. [195]

     The only submission in relation to this ground of appeal was made at the hearing of these proceedings, when counsel for the plaintiff submitted that in the Local Government Decision, the Senior Member provided no reasons for dismissing the case, despite the plaintiff’s request (T 43.24).

126. [196]

     The defendant submitted that ground 3(j) must fail as reasons were provided for all of the costs decisions (see the Local Government Costs Decision, the Appeal Panel Decision and the Smith Costs Decision), as well as orally in relation to the ex tempore decisions. All of these judgments clearly expose the reasoning of the decision maker. The ground does not identify how the reasons provided are not “sufficient”.

127. [197]

     The reasons for the Smith Decision are set out in detail earlier in this judgment. It is not necessary to repeat them in full here, especially as the plaintiff has failed to particularise the alleged deficiencies. For the reasons provided in relation to grounds 3(a), (c), (d), (f) and (g), it is my view that the Senior Member’s written reasons were sufficient and revealed no error of law. As such, this ground of appeal fails in relation to the Smith decision.

128. [198]

     The Local Government Proceedings were dismissed on 21 February 2018. Orders were made that the parties were to address the question of costs on the papers.

129. [199]

     The affidavit of Zoe Elliott contains a transcript excerpt from the hearing of the Local Government Proceedings before the Senior Member on 21 February 2018: Affidavit, Zoe Olivia Elliot, 16 July 2019 at p 4. The excerpt relevantly reads:

130. [200]

     The Local Government Decision was delivered ex tempore. The plaintiff has produced no evidence that he requested written reasons and that they were refused. As the excerpt above makes clear, it was not the plaintiff who requested reasons, but Mr Greg Skehan, who acted as counsel for the defendants. In response, the Senior Member stated that his reasons were that the Tribunal lacked jurisdiction to hear the matter. Those reasons were further elaborated in the Local Government Costs Decision, as outlined earlier in this judgment.

131. [201]

     The Appeal Panel Costs Decision was also delivered ex tempore. The affidavit of Zoe Elliott dated 18 June 2019 contains a transcript excerpt from the hearing before the Appeal Panel on 23 July 2018. It relevantly reads (CB p 322-324):

132. [202]

     In considering this ground of appeal, I adopt the approach that this Court should not read the Senior Member’s or the Appeal Panel’s reasons “with an eye finely tuned for error”: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [67] per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291.

133. [203]

     The standard to which the Tribunal’s reasons are to be held is set out in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (“Wingfoot”). Relevantly, the High Court in Wingfoot stated at [55]:

134. [204]

     While Wingfoot refers to a medical panel under the Accident Compensation Act 1985 (Vic), the standard for written reasons set out at [55] above apply equally to the Senior Member and Appeal Panel under the CAT Act in this case.

135. [205]

     In order to meet the legal standard outlined in Wingfoot at [55], the reasons of the Senior Member and the Appeal Panel were required to explain their actual path of reasoning in sufficient detail to enable a court to see whether their opinions involved an error of law. The plaintiff has failed to demonstrate that the reasons of the Senior Member and the Appeal Panel failed to meet this standard. As such, it is my view that in relation to the Appeal Panel decision, ground 3(j) does not raise a question of law which is more than merely arguable. Leave to appeal on this ground is refused. In relation to the Local Government Decision, the Tribunal’s reasons reveal no error of law. This ground of appeal fails.

136. [206]

     This ground of appeal asserts that each costs decision misconstrued or misapplied s 60(3) of the CAT Act with respect to the issue of exceptional circumstances.

137. [207]

     As outlined earlier, the plaintiff requires leave to appeal on a question of law in relation to the Local Government Costs Decision, Smith Costs Decision, and Appeal Panel Decision.

138. [208]

     At the hearing of these proceedings, the plaintiff submitted that the Electoral Commission conducted an investigation into the issues raised by the plaintiff in the Smith proceedings, at his request. He alleges that after withholding its investigation report, the Electoral Commission recommended that he proceed to NCAT with his concerns (T 30.4). The plaintiff submitted that bringing his case to the Tribunal was a reasonable course to take, and not a basis for the Tribunal to make a costs order against him pursuant to s 60(2) of the CAT Act.

139. [209]

     The defendants submitted that ground 3(k) must fail as it identifies the wrong test by referring to “exceptional” rather than “special” circumstances.

140. [210]

     The defendants submitted that with respect to the costs decisions, there is no question of law properly raised in the proposed summons, or any question of law is doomed to fail such that the appeal from those decisions is incompetent, obviously untenable and should be dismissed. Further, with respect to the Appeal Panel Decision, even if a question of law is found to have been raised, there are no factors warranting the granting of leave necessary pursuant to s 83 of the CAT Act. For similar reasons, there are no factors warranting the granting of leave necessary to appeal from the Local Government costs decision and the Smith Costs Decision pursuant to cl 29(6)(c), Sch 5 of the CAT Act.

141. [211]

     Section 60 of the CAT Act has been set out earlier in this judgment. The plaintiff in his proposed summons does not identify how s 60(3) is alleged to have been misconstrued or misapplied. As such, no question of law has been properly raised.

142. [212]

     The application of s 60(3) of the CAT Act involves an exercise of discretion. The principles according to which this Court is to decide whether a discretionary decision to award costs constitutes an error of law are stated definitively in a short passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at pp 504-505. Those principles are as follows:

143. [213]

     Counsel for the plaintiff submitted that this appeal raises an issue of principle because in the Local Government Costs Decision, the Senior Member stated that the plaintiff had “reasonably brought the matter” (T 36.40), and that although the Tribunal dismissed the proceedings for want of jurisdiction, the matter was one which “otherwise [the Senior Member] agreed to be in the public interest” (T 37.1-2). He therefore erred in exercising his discretion to award costs.

144. [214]

     However, in his written reasons, the Senior Member made no such concession. At [42], he stated that it was “understandable” that a self-represented litigant would commence proceedings in the Tribunal without jurisdiction. However, far from stating that the plaintiff’s applications were reasonably brought, he stated at [46], “I agree with the respondents that the applications lacked merit.” He found that continuing with the proceedings after having been made aware that the Tribunal lacked jurisdiction was an abuse of process. The plaintiff has not challenged that decision, nor the determination made in the Smith Costs Decision that those proceedings were obviously untenable and vexatious.

145. [215]

     In the case of each costs decision, the Tribunal considered whether special circumstances existed, and upon being satisfied in its discretion that they did, went on to exercise its discretion in making an order for costs. The plaintiff has failed to demonstrate that this discretion was exercised in error in any of the decisions specified. As such, it is my view that ground 3(k) does not raise a question of law which is more than merely arguable. Leave to appeal on this ground is refused.

146. [216]

     I have considered the grounds of appeal in the plaintiff’s amended summons. In my view, none of the questions of law outlined in the plaintiff’s amended summons in relation to the Local Government Costs Decision, Smith Costs Decision and Appeal Panel Decision are more than merely arguable. In these circumstances, the plaintiff has failed to demonstrate that his appeals in relation to these three decisions concern any issue of principle or question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable, that the primary decisions were in error.

147. [217]

     Having taken these matters into account, in the exercise of my discretion, I refuse to grant leave to appeal in relation to Local Government Costs Decision, Smith Costs Decision and Appeal Panel Decision.

148. [218]

     Further, it is my view for the reasons given earlier that the plaintiff’s grounds of appeal as they relate to the Local Government Decision and the Smith Decision reveal no errors of law. The plaintiff’s appeals in relation to those decisions are dismissed.

149. [219]

     At the hearing of these proceedings, the parties agreed that if leave to appeal was refused, the plaintiff’s application for a stay would fall away (T 20.46-50). It is also not necessary that I consider the defendants’ application for summary judgment.

Result

1. [220]

   The result is that the plaintiff’s application for an extension of time to file an appeal is refused. The plaintiff’s application for leave to file the amended summons is refused. The plaintiff’s application for leave to appeal in relation to the Local Government Costs Decision, Smith Costs Decision and Appeal Panel Decision is refused. The plaintiff’s appeals in relation to the Local Government Decision and Smith Decision are dismissed.

Costs

1. [221]

   Costs are reserved.

   1. (1)

      The plaintiff’s application for an extension of time to file an appeal is refused.

   2. (2)

      The plaintiff’s application for leave to file an amended summons is refused.

   3. (3)

      The plaintiff’s application for leave to appeal in relation to, firstly, the decision of the Senior Member of NCAT as to costs dated 4 May 2019 in proceedings 2017/343156 and 2017/242149; secondly, the decision of the Senior Member of NCAT as to costs dated 2 July 2018 in proceedings 2017/343134; and thirdly, the decision of the Appeal Panel of NCAT dated 24 July 2018 in proceedings 2018/22632; are refused.

   4. (4)

      The plaintiff’s appeals in relation to, firstly, the decision of the Senior Member of NCAT dated 21 February 2018 in proceedings 2017/343156 and 2017/242149; and secondly, the decision of the Senior Member of NCAT dated 5 June 2018 in proceedings 2017/343134; are dismissed.

   5. (5)

      In proceedings 2017/343156 and 2017/242149, the decisions of the Senior Member of NCAT dated 21 February 2018, and as to costs dated 4 May 2019, are affirmed.

   6. (6)

      In proceedings 2018/22632, the decision of the Appeal Panel of NCAT dated 24 July 2018 is affirmed.

   7. (7)

      In proceedings 2017/343134, the decisions of the Senior Member of NCAT dated 5 June 2018, and as to costs dated 2 July 2018, are affirmed.

   8. (8)

      Costs are reserved.