Cornish v Penrith City Council

The Appeal

1. The appeal was lodged on 13 November 2023 and on that basis, the appeal was lodged in time, being within 28 days from when the appellant was given reasons for the decision, as is required by cl 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. Decisions of NCAT are internally appealable decisions and an appeal can be made from them as of right where there is a question of law and with the leave of the appeal panel on specified grounds: see, s 80(1) and (2)(b) of Civil and Administrative Act 2013 (NSW). Pursuant to s 80(2)(a), in the case of an interlocutory decision of NCAT at first instance, leave of the appeal panel is required for the appeal to proceed.
3. Penrith City Council submits that the order of NCAT dismissing the application amounts to a summary dismissal. A summary dismissal is defined as an interlocutory decision under s 4 of the Civil and Administrative Tribunal Act 2013 (NSW) and on that basis, leave is required to appeal.
4. Mr Cornish submits that the application was dismissed on the basis that NCAT did not have jurisdiction to determine the matter and on that basis, leave is not required to appeal. However, in a further amended notice of appeal Mr Cornish sought leave to appeal and at the appeal hearing before us, Mr Cornish submitted that he was only seeking leave to appeal if the Tribunal found leave was required.

Is leave to appeal required?

1. NCAT made the order dismissing the application under s55(1)(b) of the Civil and Administrative Tribunal Act on the basis that the application was misconceived and lacking in substance. There is no provision in the Civil and Administrative Tribunal Act for dismissing an application for lack of jurisdiction, other than the dismissal provision in s 55(1)(b).
2. Section 80 of the Civil and Administrative Tribunal Act relevantly provides: 80 Making of internal appeals … (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
3. The terms, "interlocutory decision" and "ancillary decision" are defined terms pursuant to s 4 of the Civil and Administrative Tribunal Act: 4 Definitions (1) In this Act: … ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. … interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following: … (h) the summary dismissal of proceedings, (i) any other interlocutory issue before the Tribunal.
4. In AQO v Minister for Finance and Services [2016] NSWCA 248; (2016) 93 NSWLR 46 Basten JA indicated that a summary dismissal application based on an absence of jurisdiction 'is almost certainly an interlocutory issue.' At [127] - [128] His Honour stated: [127] It is true that there is a specific reference to a decision regarding the jurisdiction of the Tribunal in the definition of ancillary decision and it may be inferred that the Appeal Panel thought that the specific reference to jurisdiction determined the issue. However, it appears from the chapeau to the definition of ancillary decision that one must determine that the decision is "other than an interlocutory decision" before coming to specific paragraphs which identify, non-exhaustively, what is meant by the term. If jurisdiction were determined as part of the final determination of a matter by the Tribunal, it might constitute an ancillary decision; however the refusal of a summary dismissal application, albeit based on an alleged absence of jurisdiction, is almost certainly an interlocutory issue, falling within either par (h) or par (i) of the definition of interlocutory decision. [128] A contrary approach might rely upon what appears to be an internal inconsistency in the chapeau to the definition of ancillary decision, which envisages a decision which is "preliminary to" a final determination but is not an interlocutory decision. It is unfortunate that members of the public, in seeking to resolve disputes before a Tribunal which is meant to facilitate the just, quick and cheap resolution of the real issues in proceedings, and which is required to dispense with formality, are faced with such potentially confusing provisions.
5. In Commissioner of Police, NSW Police Force v Holmes [2021] NSWCATAP 202 at [25]-[[27] the NCAT Appeal Panel considered those statements and said: At [128], Basten JA identifies one basis for a contrary approach. Another textual indication that jurisdictional decisions are ancillary decisions is the use of the word "matter" rather than "proceedings" in the definition. That choice of words suggests that an application to NCAT for administrative review does 'not amount to a "proceeding" unless the Tribunal has jurisdiction to deal with the application. That terminology is also consistent with the Tribunal having a duty to satisfy itself that it has jurisdiction in relation to an application, whether or not a respondent applies for the matter to be dismissed. Interpreted in that light, a decision which concerns whether the Tribunal has jurisdiction to deal with a matter is not dependent on an application having been made for summary dismissal. Despite ostensibly being made under the summary dismissal power, the Tribunal's decision is not a summary dismissal of "proceedings". The Appeal Panel came to the same view in DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 at [25]-[35] and Dubow v Mid-Western Regional Council [2019] NSWCATAP 242 at [11]. The decision also meets the other two requirements in the definition of ancillary decision. It was preliminary to a decision determining "proceedings" and it concerned whether the Tribunal has jurisdiction to deal with a matter. For those reasons, it is an ancillary decision and leave to appeal is not required. However, even if we are wrong and leave is required, we would give leave because of the fundamental importance of the principle that the Tribunal must satisfy itself that it has jurisdiction to deal with a matter.
6. It Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 the New South Wales Court of Appeal considered an order that had been made by Grove J for summary dismissal was made, Part 13 r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), which was in the following terms: Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
7. The Court of Appeal constituted by Allsop P, Tobias JA, Handley AJA at 1 characterised the order of Grove J as interlocutory. The Court stated at [11]-[12]: … This Court decided that in Wickstead v Browne (1992) 30 NSWLR 1 in dealing with the relevantly indistinguishable provisions of Part 13 of the then Supreme Court Rules, citing relevant decisions of the High Court and Privy Council: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 440; Tampion v Anderson (1973) 48 ALJR 11 at 12. The order for dismissal may be seen to have a degree of finality in practical effect, but the test is whether it was final in legal effect: Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104-105. It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or create res judicata estoppels. Whatever jurisprudential complexities lie behind the analysis, as the Privy Council made clear in Tampion v Anderson, clarity and consistency in approach is vital. The courts have had a consistent approach to the status of orders for, or to the effect of, summary dismissal since the 19th century: they are interlocutory. The High Court most recently reiterated this in In the Matter of An Appeal by Luck [2003] HCA 70; 78 ALJR 177 at 178-179, where the clear rule in Tampion v Anderson was expressly affirmed. The Court (McHugh ACJ, Gummow and Heydon JJ) said at 179: "An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action." 12 The principle has been established for over 100 years by decisions some of which are binding on this Court.
8. The circumstances in relation to an appeal in NCAT, differ to those which involve an appeal to the Court of Appeal. The terms "interlocutory" and "ancillary" are specifically defined in the Civil and Administrative Tribunal Act.
9. We agree with the Appeal Panel in Commissioner of Police, NSW Police Force v Holmes that an order dismissing a matter for lack of jurisdiction is an ancillary order for the purposes of the definition contained in s 4 of the of the Civil and Administrative Tribunal Act. However, we will take the same approach which that Appeal Panel took. If we are wrong, and the decision is categorised as an interlocutory decision and leave is required, we would give leave because of the fundamental importance of the principle that NCAT must satisfy itself that it has jurisdiction to deal with a matter.

Section 60 Costs Application

1. At the hearing, the appellant submitted that the Tribunal erred because it did not consider that the application made was in fact an application for costs in relation to the initial disciplinary proceedings.
2. We asked the appellant to identify where that ground had been raised, either in the initial proceedings to the Tribunal or as a ground of appeal.
3. Counsel for the appellant directed us to paragraph 16 of the administrative review application that was made to NCAT where it states: 16. The Applicant again citing his letter to OLG on 5 June 2023, the First and Second Order Misconduct as referred in the Supreme Court determination in [14] rebuts the proposition put by the Respondent in their Statement of Reasons referred in (7) above, that the conduct of Councillor Cornish was not carried out in 'good faith'. "After hearing from your client and considering the matter, Council resolved: "The 21 July 2022 decision of the General Manager to decline to reimburse former Councillor Cornish his costs as outlined in the report is affirmed for the reasons Council has previously resolved in refusing the claim". On 24 May 2021, Council resolved: "Councillor Cornish is not to be reimbursed his costs outlined in the report for the following reasons" i. Council is not satisfied that when Councillor Cornish carried out his functions as a Councillor at meetings held on 24 November 2014 and 8 December 2014, those functions were not carried out in good faith; ii. In addition, in relation to his claim for reimbursement of his legal costs of the investigation of Ms Thane, the findings in that matter were not substantially favourable to Councillor Cornish". On that basis, the claim is refused."
4. A reading of that paragraph could not amount to an inference that Mr Cornish was making an application for costs in the initial proceedings under s 60 of the Civil and Administrative Review Act. Indeed, the grounds set out in the application for administrative review state that the application is made pursuant to s 55 of the Administrative Decisions Review Act 1997 (NSW) and that the decision was an administratively reviewable decision under s 7 of the Administrative Decisions Review Act by an administrator.
5. The appellant could not direct us to anywhere either in the initial review application to NCAT, in the notice of appeal or grounds of appeal that he had made an application for his costs pertaining to the initial disciplinary proceedings under s 60 of the Civil and Administrative Tribunal Act.
6. The appellant submitted that if we found that an application had not been made under s 60 of the Civil and Administrative Tribunal Act in the initial proceedings or infer that it was raised in the appeal grounds, then he formally sought leave of the Appeal Panel to amend the grounds of appeal to include an additional ground of appeal as follows: That the Tribunal erred in holding it had no jurisdiction to award the costs claimed by the applicant in the Bill of Costs dated 11 April 2021, served on the Respondent, on or about that date, pursuant to NCAT Act section 60.
7. A question of law would arise if the appellant had made an application for costs under s 60 of the Civil and Administrative Tribunal Act and the Tribunal had failed to consider that application. However, reviewing the initial review application made to the Tribunal, the transcript of the hearing and the grounds of appeal, we find that appellant never made an application for costs application under s 60 of the Civil and Administrative Tribunal Act.
8. In any case, in Coulton v Holcombe [1986] HCA 33 at [9], the plurality of the High Court of Australia endorsed the position taken in University of Wollongong v. Metwally (No. 2) [1985] HCA 28; (1985) 59 ALJR 481, at p 483; [1985] HCA 28; 60 ALR 68, at p 71, where the six Justices of the Court said: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so".
9. We note that the appellant has been legally represented throughout the proceedings, including in the first instance. The appellant confirmed at the appeal hearing that directions had been made for the parties to provide submissions and documents relating to the issue of jurisdiction prior to the hearing.
10. An application pursuant to s 60 of the Civil and Administrative Tribunal Act was never made in the initial proceedings, nor was leave sought to amend the application.
11. Further, the costs which the appellant is now applying for relate to costs incidental to disciplinary proceedings that were lodged in 2017. They are not against the respondent in those proceedings. While we accept that s60(5)(b) of the Civil and Administrative Tribunal Act may be wide enough to allow for an order to be made for those incidental costs, those costs could have been claimed as part of the application for costs to the Tribunal on 15 September 2020, or subsequently in the Appeal from the decision in those proceedings.
12. The appellant submits that the application for costs could not have been with the application for costs made on 15 September 2020, because the appellant needed to make the application for costs to the Council first and for Council to reject them. We reject that submission. A costs application under s60 is not an administrative review application. There is no requirement for the appellant to have made the costs application to Council first.
13. Accordingly, we refuse to allow leave for the appellant to amend his grounds of appeal to raise a question of law on the basis that the Tribunal purportedly erred in holding it had no jurisdiction to award the costs claimed by the applicant in the Bill of Costs dated 11 April 2021, served on the Respondent, on or about that date, pursuant to NCAT Act section 60. Prior to the appeal before us, the proceedings were never put forward on that basis and no reason was provided as to why that position was never articulated before the Tribunal in the initial application or on the appeal grounds.

Administrative Review of the Penrith City Councils Decision

1. While the appellant did not focus on the grounds which they had raised in the appeal at the hearing, they did not abandon them either and so we will deal with them briefly. The appellant submits that It would amount to a question of law if the Tribunal was wrong in finding that it did not have jurisdiction to review the decision. We accept that if the Tribunal did make such an error, that would be a failure to exercise jurisdiction and would raise a question of law.
2. The appellant submits that the Tribunal followed the 'wrong pathway' in determining that there was no jurisdiction. The appellant refers to the decision of Basten J in Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134 at [92]: In the event that the Court were minded to set aside the decision of NCAT, a question arose as to whether consequential relief should be provided. The order suspending the applicant's rights to payment as a councillor for three months has apparently been carried into effect. Once that order is set aside, the councillor may have some entitlement to recoupment of those payments from the Council. However, the Council is not a party to these proceedings and both the applicant and the Secretary accepted that no relief should be address that issue."
3. The appellant submits that is a full answer to the question of NCAT's jurisdiction. While His Honour notes that the appellant may have a right to recoup costs from Council, nothing in that passage suggests that the Tribunal has jurisdiction to administratively review a decision of the respondent in relation to recoupment of payments from Penrith City Council.
4. The appellant also submits that s252 and 440L of the Local Government Act were misconstrued by the Tribunal. The appellant submits that s 252 is triggered in the enforcement of payment of an expense incurred during a disciplinary procedure. That expense was caused by the error of Penrith City Council and subsequent judicial and administrative decision of both Court and NCAT. The appellant submits that s 252(3) makes mandatory the payment or non-payment of expenses in accordance with the statutory expenses policy and Mr Cornish' legal and other expenses are a direct cause of disciplinary, occupational proceedings commenced by Penrith City Council and hence s 252 is the enabling legislation giving jurisdiction to the Tribunal.
5. Section 252 of the Local Government Act provides: 252 Payment of expenses and provision of facilities (1) Within the first 12 months of each term of a council, the council must adopt a policy concerning the payment of expenses incurred or to be incurred by, and the provision of facilities to, the mayor, the deputy mayor (if there is one) and the other councillors in relation to discharging the functions of civic office. (2) The policy may provide for fees payable under this Division to be reduced by an amount representing the private benefit to the mayor or a councillor of a facility provided by the council to the mayor or councillor. (3) A council must not pay any expenses incurred or to be incurred by, or provide any facilities to, the mayor, the deputy mayor (if there is one) or a councillor otherwise than in accordance with a policy under this section. (4) A council may from time to time amend a policy under this section. (5) A policy under this section must comply with the provisions of this Act, the regulations and any relevant guidelines issued under section 23A.
6. Section 440L provides: "440L Appeals against disciplinary action (1) A councillor against whom disciplinary action (other than disciplinary action comprised only of counselling or reprimanding) is taken by the Departmental Chief Executive may appeal to the Civil and Administrative Tribunal against the decision of the Departmental Chief Executive to take disciplinary action. Note- An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal must be made within 28 days after the day on which the councillor is notified of the Departmental Chief Executive's decision to take disciplinary action against the councillor. (3) The Tribunal may stay any decision made by the Departmental Chief Executive until such time as the Tribunal determines the appeal. (3A) If the Tribunal stays a decision for suspension of a councillor for misconduct that has resulted or will result in disqualification from civic office under section 275(1A), the disqualification ceases to have effect or does not take effect (as the case requires) until such time as the appeal is finally determined or withdrawn. (4) On hearing the appeal, the Tribunal may- (a) confirm the decision, or (b) amend the decision, or (c) set aside the decision and substitute a new decision. (5) If a decision is amended or substituted, the decision as amended or substituted has effect as if it had been made in that form by the Departmental Chief Executive. (6) If the Tribunal sets aside a decision to suspend a councillor, any fee or other remuneration, or expenses, withheld under the suspension is payable to the councillor and any disqualification that resulted from the suspension ceases to have effect. (7) (Repealed)
7. Nothing in either of those provisions enables the Tribunal to review a decision about the payment (or the refusal of payment) of expenses. The fact that those expenses may have been incurred because of disciplinary action taken by Penrith City Council or subsequent decisions made by this Tribunal does not provide a legal basis for this Tribunal to review Council decisions in relation to refusal of those expenses.
8. The parties also referred to the decision in Kim v City of Ryde [2021] NSWCATOD 224, which involved proceedings in which a local government councillor had applied for administrative review of a decision, made by the General Manager of council to refuse to indemnify the councillor for legal fees he would incur with respect to code of conduct complaints against him. The Tribunal found in that matter that there was no provision in the Local Government Act or in any other act which provided that an application may to be made to the Tribunal to review a decision not to indemnify a councillor for expenses under the Expenses Policy. The appellant seeks to distinguish that decision on the basis that "the source of the power of the Council to act is the mandate under section 252, not the policy which it must make" and that the entire history of the matter from 2014 must be categorised and recognised as part of the exercise of disciplinary powers under the Local Government Act. The appellant also asserts in his written submissions under the heading 'comedy of errors' that the Tribunal is dealing with beneficial legislation and should give the sections the widest possible interpretation of the Act.
9. It is unclear how it can be asserted that the Local Government Act is beneficial legislation. In any case, even on their widest interpretation, s 440L and s252 cannot, either individually or in combination, be read to confer jurisdiction on the Tribunal in the circumstances of these proceedings.
10. As stated above, the appellant's initial application for administrative review of the respondent's decision was pursuant to s 55 of the Administrative Decisions Review Act. Section 55 of the Administrative Decisions Review Act states that the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is defined in s 7 of the Administrative Decisions Review Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision".

The Decision to Award Costs

1. The appellant submits that the Tribunal had jurisdiction to review the decision of Penrith City Council to refuse to reimburse his expenses and on that basis, costs should not have been awarded against him. Given our finding above and that we are not of the view that the Tribunal erred in finding that the Tribunal did not have jurisdiction to review the decision, this ground must fail. There is no other basis on which the appellant has challenged the costs order made by the Tribunal.

Leave to Appeal

1. Mr Cornish referred to ss 252 and s 731 and other various provisions of the Local Government Act. The Tribunal considered those provision and found that they did not give the Tribunal jurisdiction to review the decision.
2. Having considered the grounds of appeal, we are not of the view that we should grant leave to appeal. The Tribunal does not have jurisdiction to review the decision and the Tribunal has not unreasonably arrived at the costs decision.
3. The reasons for decision of the Tribunal identify at [11] that Mr Cornish identified several bases upon which he states the Tribunal has jurisdiction to review the decision to refuse to reimburse him for certain expenses incurred. The Tribunal dealt with those submissions and each of the grounds.
4. The Tribunal also found, correctly in our view, that the following special circumstances in the proceedings warranted the awarding of costs:

• The Tribunal found that the application itself has been misconceived and lacking in substance.
• Mr Cornish had been represented by a solicitor. The solicitors had been put on notice since 14 June 2023, that the decision could not be internally reviewable.
• The issue of jurisdiction had subsequently been raised on 13 July 2024 before the Tribunal and Penrith City Council had invited Mr Cornish to withdraw the application on 17 July 2024 on the basis that the Tribunal lacked jurisdiction. The Tribunal found that Mr Cornish pursued the matter and made submissions that were not tenable, and that Penrith City Council has been put to the expense of addressing those submissions and appearing at a hearing.

Costs of the Appeal

1. The respondent has also made an application for the costs of the appeal. We have made provision for submissions in relation to costs in our orders.

Orders 1. The appeal is dismissed. 2. Leave to appeal is refused. 3. The respondent is to provide to the appellant and the Tribunal, any submissions and documents he intends to rely on in relation to the costs application on or before 4pm on 21 June 2024. 4. The appellant is to provide to the respondent and the Tribunal, any submissions and documents they intend to rely on in response to the costs application by 4pm 28 June 2024. 5. Pursuant to s 50 of the Civil and Administrative Tribunal Act, parties are to include in their written submissions whether a hearing in relation to the costs application can be dispensed with.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 June 2024