Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure v Thaler [2025] NSWCATOD 142;

1. As provided by s 54 of the NCAT Act, the Tribunal may of its own motion, or at the "request" of a party, refer a question of law to the Supreme Court, for the opinion of the Court. Whilst the starting position is that a hearing is required for "proceedings" in the Tribunal unless certain exceptions apply (s 50 of the NCAT Act) and that unless otherwise ordered, a hearing is to be in public (s 49 of the NCAT Act), it is not settled that a request under s 54 is a proceeding that ordinarily requires a hearing; although I note that in Registrar of Births, Deaths and Marriages v FJG & FJH; Attorney General of New South Wales as Intervenor [2022] NSWCATAP 270 (FJG), a hearing was indeed held.
2. The principles relevant to dispensing with a hearing were identified in Jali Local Aboriginal Land Council v Anderson [2025] NSWCATOD 57 at [7]. Many of the same factors are relevant here.
3. Notably, in favour of holding a hearing:

(1) The objects of the Tribunal include "to ensure that the Tribunal is accountable and has processes that are open and transparent; and to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members": NCAT Act, ss 3(f) and (g).

(2) The importance of open justice: John Fairfax & Sons Pty Ltd v Police Tribunal (1986) 5 NSWLR 465 at 476; John Fairfax Publications Pty Ltd v Ryde Local Council (2005) 62 NSWLR 512; [2005] NSWCA 101 at [60]- [63].

(3) The principles of open justice apply to the Tribunal: Forest v Suzanne [2022] NSWCATAP 188 at [30].

(4) The starting position is that, unless excepted or otherwise ordered, there is to be a hearing of proceedings and the hearing is to be in public: NCAT Act, ss 49 and 50.

1. The following factors favour dispensing with a hearing:

(1) The issues to be determined concern whether the questions sought to be referred are "questions of law" as contemplated by s 54 of the NCAT and, even if so, whether there are sound reasons not to refer the questions.

(2) This is not the occasion to form concluded views in relation to any contested issues, particularly, the allegations of misconduct or the defences to the contentions.

(3) The Referral Proceedings will be the subject of a hearing and the contested issues will be canvassed.

(4) No oral evidence is required; and nor is there any need for cross examination.

(5) The parties provided comprehensive written submissions.

(6) This decision will be published and will expose the Tribunal's reasoning and the submissions.

(7) Where, as here, the hearing would likely simply amount to a recitation of the written submissions, there is a public interest in conserving the Tribunal's resources and the costs to the parties.

(8) The guiding principle of the NCAT Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings before the Tribunal: s 36(6) of the NCAT Act.

(9) Neither party sought an oral hearing; and no issue was raised as to prejudice, if this decision is undertaken without a hearing.

1. It is not necessary to finally determine whether a hearing is ordinarily required, as I have concluded, after giving the parties an opportunity to make submissions, that the issues for determination can be adequately determined in the absence of the parties.
2. Pursuant to s 50(2) of the NCAT Act, I dispense with a hearing.

1. Before a referral to the Supreme Court may be made, there must be written consent by the President. Consent, however, is not required to refuse a request. For that reason, decisions such as this are often considered by Tribunal members, other than the President; at least at the initial stage.
2. There are several instances where requests for referral under s 54 of the NCAT Act have been the subject of written reasons for decision; and this is one case where written reasons are appropriate. Here, the parties provided comprehensive submissions and the Request is considered, by the Councillor, as an indispensable preliminary step in the efficient management of the proceedings. It is therefore expedient to explain my reasons for not referring the questions to the Court. I do not mean, by taking this step, to suggest that written reasons are always required for requests such as this.

Principles - referral of questions of law to the Supreme Court

54 References of questions of law to Supreme Court

(1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.

(2) The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred.

...

1. The Tribunal's power to refer questions of law to the Supreme Court is not unlimited. The purpose of the mechanism provided for under s 54 must be borne in mind when the Tribunal is considering whether to refer a question of law.
2. In Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439, the Court of Criminal Appeal considered the purpose of s 5AE of the Criminal Appeal Act 1912 (NSW), which is in similar terms to s 54 of the NCAT Act. At [36], Simpson J said (Bell and Buddin JJ agreeing):

"... s 5AE is designed to facilitate the giving of advice by this Court to a first instance judge in order to enable the proper resolution of the issues in the proceedings. It arises where proceedings are still on foot and enables the proper and just determination of those proceedings, according to law, and in the correct application of the law. Section 5AE is expressed to apply to proceedings that have not come to an end, and which may, therefore, themselves be resolved by the determination of the questions of law ..."

1. In Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Orr) at [108], the Court of Criminal Appeal endorsed that statement, and added:

"In keeping with the observations of Simpson J in Goulburn Wool, the evident purpose of the procedure provided by s 5AE is to provide a facility whereby, if there is a difficult or unsettled question of law or a question of law as to which there are conflicting authorities or no clear authority, the judge hearing the matter may or, if the Crown requires, must submit such questions to the Court of Criminal Appeal."

1. In Orr, an issue before the Court of Criminal Appeal was whether the questions referred to it were questions of law for the purpose of s 5AE of the Criminal Appeal Act. The Court said, at [47] - [48]:

"47 Where a statute affords a right of appeal on a question of law, it will necessarily be the case that the court at first instance will have found facts and applied the law to those facts to result in final orders. Where, on the other hand, a question of law may be referred to another court 'for determination', that language suggests that the question will not already have been 'determined' by the Court seised of the matter and, as such a reference may occur during or in the course of a hearing, facts will not (or will not usually) have been found by the court referring the question of law for determination.

48 As was noted in Bass v Permanent Trustee Company Limited [1999] HCA 9; (1999) 198 CLR 334 at 358; [1999] HCA 9 at [52], some questions of law can be decided without any reference to the facts, or may proceed by reference to assumed facts. These are sometimes described as 'pure questions of law'. This was the terminology used, for example, by Leeming and White JJA in strictly confining a grant of leave to appeal in Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62 at [11]; see also Medical Council of New South Wales v Lee [2017] NSWCA 282 at [77]; and Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [66] and [125]."

1. The Court also identified, in Orr, that a question of mixed fact and law "is to be differentiated from, and is not, a 'question of law'": at [60]; and, to the same effect, Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052 at [38].
2. In Orr the Court concluded (at [109]) that:

"Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law'. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts."

1. Section 5AE of the Criminal Appeal Act and s 54 of the NCAT Act are in like terms. Accordingly, what was said in Orr is apposite.
2. It follows that questions sought to be referred under s 54 of the NCAT Act will, generally, be referred at a time before the underlying factual dispute has been resolved; and will therefore be questions that do not depend on facts for their answer, or that might be determined on assumed or agreed facts. They will be difficult or unsettled questions. They may therefore have some wider import. They will be important to the resolution of the underlying proceedings. They will be "pure" questions of law and not mixed question of fact and law. They will not require the Court to determine facts or resolve any factual disputes.
3. If the questions sought to be referred are properly considered questions of law, the Tribunal nevertheless must be satisfied that it is appropriate to make a referral to the Supreme Court.
4. The factors the Tribunal may take into account in making a referral decision were set out in FJG at [55]-[57], in which the Appeal Panel said:

"55 Factors in favour of referral may include:

(1) a situation where there is no existing authoritative statement from an appellate court on the question of law: CTS v NSW Trustee and Guardian [2017] NSWCATAD 119 (CTS) at [14] (although this cannot be determinative: Milner v Commissioner of Police, NSW Police Force [2017] NSWCATOD 37 (Milner) at [14];

(2) that the decision may have an impact broader than on the immediate parties and where, regardless of the outcome, an appeal is likely: CTS at [15]; Milner at [14];

(3) that a determination by the Supreme Court may truncate the legal process by avoiding the possibility of an appeal after a decision is made by the Appeal Panel: Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68 at [24].

56 Factors weighing against making a referral may include:

(1) that NCAT and its Appeal Panel may resolve all the issues, including the questions of fact, justly, quickly and cheaply: CTS at [18]; also see NCAT Act, s 36;

(2) where the issues to be determined 'are matters which the Tribunal routinely determines' and 'are not particularly novel nor do they raise matters of public interest which have not previously been dealt with by the Tribunal': ALZ v WorkCover NSW [2015] NSWCATAD 241 (ALZ) at [8];

(3) where there is a remedy available, such as to appeal against the Appeal Panel decision in the normal course: ALZ at [8];

(4) that NCAT has a clear view about its duty and role, and the proper process is generally for questions of law to be determined initially by this Tribunal. NCAT is as well-placed as anyone to determine matters of public importance: Milner at [16], citing Legal Services Commissioner v Bryden [2009] NSWADT 76. This is particularly so where it is clear from the enabling act that Parliament intended that disputes between the parties would preferably be determined by NCAT: Kincumber Nautical Village Pty Ltd v Morris [2020] NSWCATAP 263 at [16];

(5) that experience has shown that procedures that fragment the hearing and disposition of proceedings have generally been found to produce difficulty and delay rather than speed and efficiency. There have been many instances in which procedures of that kind have produced unfortunate results, as it is difficult to anticipate exactly what will be necessary for an efficient referral of a question. It is also to be borne in mind that referral of the question of law to the Supreme Court would be removing the matter into a costs jurisdiction: Milner at [21].

57 Ultimately, the exercise of NCAT's discretion must be guided by consideration of what the interests of justice, informed by the guiding principle in s 36 of the NCAT Act, require."

1. The Councillor submits that the Secretary's conduct in bringing multiple disciplinary proceedings against him, when the Secretary "knew of all of the matters complained of against him" and there existed a departmental report on most of those matters, is legally unreasonable or oppressive or an abuse of process. The Councillor contends that in having to answer the separate disciplinary proceedings, he has been exposed to consequences including the possibility of being excluded from public office for up to five years, distress to him and his family, additional expenses and time cost which "has diverted him from being able to earn a living". He submits that having certain questions referred to the Supreme Court will expedite the just resolution of the proceedings.
2. After some refinement, the questions the Councillor requests be referred to the Supreme Court are those set out in the Councillor's submissions dated 14 October 2025 (the Questions). The Questions state:

"1. Is the way in which the following departmental reports regarding Councillor Andrew Thaler's conduct (subsequent to the Departmental Report of April 2025, which gave rise to the decision of the delegate of the Departmental Chief Executive on 5 May 2025, upheld in Matter 2025/00182562)

• The Departmental Report of July 2025, giving rise to the decision of the delegate of the Departmental Chief Executive on 28 July 2025, the subject of appeal in Matter 2025/00294190; and

• The Departmental Report of May 2025, giving rise to the s438HA(9) referral to the Tribunal on 23 June 2025 by the delegate of the Departmental Chief Executive, the subject of proceedings in Matter 2025/00303280

have been structured and acted upon, including their content and sequencing, had the effect of being:

• Legally unreasonable; and/or

• Oppressive;

in relation to Clr Thaler, or otherwise an abuse of the processes under Chapter 13, Part 6 and Chapter 14, Part 1, Division 3, of the Local Government Act 1993?

2. Is the 28 July 2025 decision and/or the 23 June 2025 s438HA(9) referral by the delegate of the Departmental Chief Executive to the Tribunal affected by apprehended bias?

3. Is the Departmental Report of May 2025, giving rise to the s438HA(9) referral to the Tribunal on 20 June 2025 by the delegate of the Departmental Chief Executive, the subject of proceedings in Matter 2025/00303280, affected by issue estoppel and/or Anshun estoppel, given the commonality of facts relied upon in Matter 2025/00303280 and each of:

(i) the Departmental Report of April 2025, which gave rise to the decision of the delegate of the Departmental Chief Executive on 5 May 2025, upheld in Matter 2025/00182562; and

(ii) The Departmental Report of July 2025, giving rise to the decision of the delegate of the Departmental Chief Executive on 28 July 2025, the subject of appeal in Matter 2025/00294140.

4. Are the Departmental Reports of:

(i) July 2025 and the decision of the delegate of the Departmental Chief Executive on 28 July 2025, the subject of appeal in Matter 2025/00294190; and

(ii) May 2025, and the s438HA(9) referral to the Tribunal on 20 June 2025 by the delegate of the Departmental Chief Executive, the subject of proceedings in Matter 2025/00303280

affected by Anshun estoppel?"

Grant leave to rely on the Questions for the purposes of the Request

1. The Secretary highlights that the questions for referral have changed since initially mooted and submits that leave to rely on these latest questions ought not be granted. However, for the following reasons, I grant leave to amend the request for referral under s 54 of the NCAT Act to encompass the Questions:

(1) A request under s 54 of the NCAT Act must relate to pure questions of law.

(2) There should therefore be no need for a determination of disputed facts.

(3) The questions of law must be important to the underlying proceedings; and therefore there is no utility in holding the Councillor to the original questions or progressing a request in relation to questions that are no longer pressed.

(4) The Secretary has had an opportunity to make submissions in relation to the Questions.

1. Whether the Questions may be relied on for any other purpose, including the Referral Proceedings themselves or the External Appeal proceedings, is not the subject of this decision.

1. The first issue that arises for consideration is whether the Questions raise questions of law. The starting premise is that a question of law cannot involve the determination of facts: Orr at [109].
2. The Councillor asserts that it is not necessary for any findings of fact to be made and that the Questions can be determined by reference to the record, from the fact of the disciplinary processes and a description of the action taken by the Secretary. The Councillor maintains that it is not necessary to determine whether the underlying conduct occurred or had the character contended for by the Secretary.
3. In his outline of submissions, the Councillor relies on the following matters of record:

"(i) The decision of the Tribunal in Matter 2025/001825632, in Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 88.

(ii) the four Departmental reports, including annexed material, dated:

(a) April 2025

(b) May 2025

(c) July 2025

(d) October 2025

(iii) the two suspension decisions,

(a) 5 or 6 May 2025

(b) 28 July 2025

(iv) the various proceedings which are before the Tribunal:

(a) Matter 2025/00239261, including the referral letter from the Deputy Secretary dated 20 June 2025 and the General application form stamped by the Tribunal Registry on 23 June 2025 (to the extent they are not annexed to the May 2025 report, and

(b) Matter 2025/00294190."

1. The Secretary disputes that the Questions raise questions of law and highlights that each requires "the Tribunal to make findings of primary fact and inferences from those facts to characterise the conduct of officers of the Department of Planning, Housing and Infrastructure". The Secretary emphasises that there is no proposed set of agreed facts "nor is it conceded that the primary allegations the subject of either proceedings should be assumed as correct" for the purposes of the Request.
2. In the absence of fully determined facts, it is difficult to accept that the questions raise pure questions of law capable of being referred to the Supreme Court. The Questions each proceed on the underlying premise that the Secretary's conduct in preparing two reports and taking disciplinary action against the Councillor subsequent to the first report, where each of the reports are said to be in relation to the same conduct by the Councillor, was unjustifiable. Underlying each aspect is whether the Secretary was "justified" in taking action against the Councillor on three separate occasions, rather than consolidating the disciplinary processes into a single proceeding. Whether the Secretary was so justified cannot be determined from looking at a chronology of matters in the Tribunal.
3. This is exemplified by the Councillor's submissions that:

(1) there "appears no good reason why this matter was not referred to the Tribunal instead of preparing the first report and/or the taking of the first suspension decision"; and

(2) as all of the matters in the first suspension matter, the second suspension matter and the performance improvement matter were known to the Department, they "could, and ... should have been brought together in a single process".

1. In order to determine whether the Secretary's decision to take such steps was vitiated in the way claimed, it will be necessary to ascertain the rationale for the approach. Taking into account the protective nature of the orders made by the Secretary (Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [83]), it could not immediately be assumed, merely from the fact that the same underlying conduct is relied on, that the way the Secretary has brought action against the Councillor was designed to be punitive. For example, the referral of a matter takes time, whereas a suspension is immediate. Nor could it be immediately assumed that the decisions were otherwise vitiated for jurisdictional error, without understanding the context.
2. Further, the starting premise of the Councillor's arguments - that all three disciplinary actions are based on the same conduct - is also open to question. The Councillor, himself, concedes (in his outline of submissions at paragraph 36) that the second proceeding contains "two, perhaps three matters out of fifteen which are not part of either the first report-first suspension and third report-second suspension matter, with either the same facts or same conduct relied upon".
3. This reasoning applies to each of the Questions.
4. With respect to oppression, it might readily be accepted that the Councillor is exposed to hardship in readying himself for multiple proceedings, but once again, whether this amounts to oppression is something that is affected by context.
5. With respect to apprehended bias, the Councillor submits that the combination of the following matters suggests that the Secretary's decision to bring subsequent disciplinary action against the Councillor was made other than on its factual or legal merits:

(1) Requesting the preparation of a departmental report without an investigation.

(2) Making a decision on the basis of the report, which he knew did not contain all of the information then held by the Department regarding the Councillor.

1. Again, answering the relevant question would benefit from an appreciation of the context.
2. Finally, with respect to estoppel, this will require a nuanced analysis of the matters the Tribunal must decide in each proceeding and again, will benefit from a comprehensive set of primary facts and the context.
3. The Questions do not raise pure questions of law as comprehended by s 54 of the NCAT Act and are therefore not suitable for referral to the Supreme Court.

1. If I am wrong in my conclusions, and the Questions posed by the Councillor indeed raise questions of law, I am not satisfied that it is appropriate to refer the questions to the Supreme Court.
2. The Secretary highlights that the drafting of the Questions is imprecise and not apt to resolve "inter partes controversies". Precision, so it is contended, is necessary to avoid asking the Court to resolve hypothetical questions or to provide "advisory opinions". By way of example, the Secretary points to the "foggy phrase" of asking "Is the way in which ... have been structured and acted upon, including their content and sequencing... oppressive". The vaguely articulated questions draw the Secretary into construing the Questions, which itself is conducive to further disputes.
3. Further, the Secretary contends that the Questions are not dispositive of the underlying issues. For example, even if the answer to Question 2 which concerns the apprehended bias of the original decision maker was answered in the affirmative, it would have no effect on the External Appeal. The same argument was unsuccessfully raised in Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 88 at [36] and following. A similar submission is made with respect to the Referral Proceedings.
4. Finally, it is noted that the Request has already delayed the hearing of the External Appeal. Similarly, the Councillor's resistance to the fixing of the hearing date of the Referral Proceedings so that the Questions can be determined disregards the High Court's warning that the attraction of separate hearings on discrete issues is "often more chimerical than real": Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [168].
5. In Tepko, Kirby and Callinan JJ said (at [168]):

"The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap."

1. The Secretary submits that the guiding principle by which the Tribunal is bound has already been undermined by the presentation of the Questions and referral will erode the probability of the "just, quick and cheap resolution of the real issues" in the proceedings.
2. On the other hand, the Councillor maintains that the opinion of the Court on the Questions will indeed resolve issues in dispute and potentially obviate the need for multiple proceedings and multiple appeals.
3. It is readily apparent that the factor that weighs in favour of referring the Questions is that referring the Questions straight to the Supreme Court could avoid a layer of appeal.
4. However, against that, I give the following matters considerable weight:

(1) Referring the Questions to the Supreme Court would fragment the Referral Proceedings and the External Appeal, which is not in line with the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(1).

(2) The Questions themselves, along with the underlying proceedings (i.e., the Referral Proceedings) and the External Appeal, have been listed to be heard and determined together; and are listed for hearing in the Tribunal on 21 October 2025.

(3) The Tribunal is well placed to deal with alleged abuses of its own processes.

(4) The Tribunal deals with disciplinary proceedings routinely.

(5) The Questions are best determined by a decision maker with the full context and all of the evidence before them.

(6) The Questions rely on settled principles of law.

(7) As the Questions are context specific, the Questions raised relate only to the Councillor and have no wider importance.

(8) The Tribunal has its own processes, including stay powers, for dealing with proceedings that are said to be brought improperly. In other words, an appropriate remedy is available in this forum, as necessary. If the Tribunal considers it appropriate to stay any proceeding, after making all requisite findings of fact, it can so order.

1. Even assuming the Questions were pure questions of law, it would not be in the interests of justice to refer the proceedings to the Supreme Court.

1. The request to refer the Questions to the Supreme Court is refused.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing is dispensed with.

(2) The request to refer questions of law to the Supreme Court of New South Wales under s 54 of the Civil and Administrative Tribunal Act 2013 (NSW) is refused.

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.