Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure v Thaler; Thaler v Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 146;

1. By application filed 17 October 2025 Councillor Andrew Thaler (Cr Thaler) sought orders against the Secretary/Delegate, Office of Local Government, Department of DPHI (the Secretary) in the following terms:

1 Pursuant to sections 36(1) and 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), an urgent interlocutory order restraining the Secretary or her delegate(s) from determining or taking any further action in relation to Councillor Thaler on the basis of the Departmental report dated October 2025 until the final determination of the issues in matters 2025/00294190 (the appeal proceedings), 2025/00239261 (the PIO proceedings) and 2025/00303280 (the Question of Law proceedings);

2 An order dismissing matter 2025/00239261 (the PIO proceedings).

2A Alternatively, an order permanently staying the proceeding.

3 An order setting aside the disciplinary action determined by the delegate of the secretary, Mr Whitworth, on 28 July 2025 and in place from 4 August 2025 until 4 November 2025;

4 An order that the secretary pay the applicant's costs, pursuant to s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) in the appeal proceedings, the PIO proceedings and the Question of Law proceedings."

1. The Secretary opposed the granting of any of the relief sought by Cr Thaler.
2. On 21 October 2025 the Tribunal heard Cr Thaler's application. At the conclusion of the hearing, the Tribunal reserved its decision but indicated, for reasons which will become apparent, that, whilst the determination of orders 2 and 3 sought by Cr Thaler raised issues of complexity which required close consideration, the Tribunal accepted the urgency of the determination of Cr Thaler's application for interlocutory injunctive relief (order 1). These reasons are concerned only with that issue. The remaining issues will be dealt with in a subsequent decision. During the course of the hearing on 21 October 2025, by reason of the decision of the Acting President, Judge Seiden SC (Deputy Secretary, Local Government under delegation the Secretary, Department of Planning, Housing and Infrastructure v Thaler [2025] NSWCATOD 142), as both parties agreed, nothing remained to be considered with respect to the Question of Law proceedings previously initiated by Cr Thaler.

1. The background to the issue the subject of the present decision can be briefly, and uncontroversially, recorded.
2. On 13 May 2025, in the exercise of powers conferred by the Local Government Act 1993 the Secretary suspended Cr Thaler from civic office for a period of three months for misconduct. Cr Thaler appealed that decision to the Tribunal. His appeal was dismissed on 10 July 2025 (Secretary, Local Government, under delegation from the Secretary, Department of Planning Housing and Infrastructure v Thaler [2025] NSWCATOD 88).
3. On 28 July 2025, in reliance upon a report provided to the Secretary in draft form on 29 May 2025 the Secretary found that the conduct of Cr Thaler considered in the report of 10 July 2025 constituted misconduct warranting suspension from civic office. On 1 August 2025 Cr Thaler appealed against the suspension order imposed by the Secretary, which commenced on 5 August 2025. The appeal has yet to be heard. On 20 August 2025 the Tribunal refused to stay the suspension order. The suspension order is due to expire on 4 November 2025.
4. On 18 September 2025 the Secretary provided to Cr Thaler a further draft departmental report, and invited him to make submissions in response to the report within 10 days. On 7 October 2025, the Secretary having agreed to an extension until that date, Cr Thaler provided his submission in response to the report.
5. On 8 October 2025, the Acting Secretary informed Cr Thaler in writing that, in reliance upon the final departmental report, she was satisfied that Cr Thaler had engaged in misconduct as defined in s 440F(1) of the Local Government Act, particulars of which were provided. The Undersecretary's letter informed Cr Thaler of the intention to take disciplinary action under s 440(2)(d) and (g) of the Local Government Act by directing him to apologise for misconduct in the manner specified in the order and suspending Cr Thaler from civic office for a period of three months. The Undersecretary's further invited Cr Thaler to make any submission in response to the proposed disciplinary action by 10.00 a.m. on 23 October 2025.
6. On 10 October 2025, Cr Thaler's solicitor wrote to the Secretary requesting that "you refrain from taking any proposed disciplinary action" against Mr Thaler in respect of the October report, "particularly, suspending him from civic office, until Mr Thaler's appeal proceedings pertaining to the second suspension matter are determined to finality in the NCAT".
7. On 14 October 2025 the Secretary responded to Cr Thaler's solicitor's request, advising that the Secretary was satisfied that the action proposed in relation to the matters outlined in the departmental report dated October 2025 was lawful and in accordance with the requirements of the Local Government Act for reasons set out in the letter, which included that, if Cr Thaler is successful in the second suspension appeal he may not be disqualified from holding civic office pursuant to s 275 of the Local Government Act. The Secretary confirmed her intention to make the proposed supervisory order. It is not in issue that, after 30 October 2025, in the absence of the Tribunal restraining the Secretary from doing so, the proposed disciplinary action is likely to be taken.
8. It is not in issue that, if a further suspension order is made, Cr Thaler will have been subject to three orders for suspension from civic office for misconduct within a five year period, thereby enlivening the operation of s 275(1) of the Local Government Act which relevantly provides that a person is disqualified from holding civic office:

(a) an order for suspension from civic office for misconduct is made (after the commencement of this subsection) against a person under this Act by the Departmental Chief Executive or the Civil and Administrative Tribunal on a referral from the Departmental Chief Executive, and

(b) it is the third or subsequent such order that has been made against the person (including orders made before the commencement of this subsection),

the person is disqualified from holding civic office for five years after the date the order takes effect."

1. In his written and oral submissions, Counsel for Cr Thaler succinctly articulated the legal and factual basis of Cr Thaler's application for interlocutory injunctive relief the case for the injunctive relief. It was submitted that, unless the Secretary gave an undertaking not to proceed on the disciplinary process associated with the fourth report, or was otherwise restrained from doing so, it is likely that Cr Thaler will be suspended from public office for a third time, thereby triggering the operation of s 275 of the Local Government Act. The Tribunal accepts that this would occur prior to the appeal from Cr Thaler's second suspension and any further appeal processes that may follow being determined.
2. Having regard to the Secretary's letter of 14 October 2025 it is likely that the Secretary will proceed with the disciplinary process indicated on the 8th and confirmed on 14th October 2025. The Secretary has not proffered an undertaking not to proceed with the foreshadowed disciplinary process. It is common ground that, if the Secretary does so, that will be the third suspension from civic office of Cr Thaler within the period referred to in s 275 of the Local Government Act. If the Secretary proceeds with the foreshadowed disciplinary process on or after 30 October 2025, that will occur prior to the determination of the balance of the present application and, depending upon its outcome, Cr Thaler's appeal from that decision. It will also occur before the determination of Cr Thaler's appeal against the second suspension order, and any subsequent appeal processes, whether instigated by Cr Thaler or the Secretary, being determined.
3. It was submitted that if Cr Thaler is disqualified from civic office before the appeal against the second suspension order is finalised, success on appeal, and success in the PIO proceedings will be rendered inutile, and the jurisdiction of the Tribunal "frustrated". In oral submissions Counsel for Cr Thaler agreed that, in substance it was asserted that refusal of the injunctive relief sought by Cr Thaler would render nugatory the fruits of success in the second suspension appeal and in the PIO proceedings.
4. It was submitted, accurately at the time, that, if Cr Thaler had one or more of the proposed, or original questions of law determined in his favour, and/or succeeded in his appeal against the second suspension order, it was "unclear what substantive remedy, if any, would be available to him or to remedy the overturning of his democratic election". As recorded earlier, Judge Seiden's decision of 21 October 2025 rejecting Cr Thaler's application to refer questions of law to the Supreme Court pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) removes any need for consideration of that submission.
5. As the submissions on behalf of the Secretary make clear, the jurisdiction of the Tribunal to grant the injunctive relief sought by Cr Thaler is disputed. In his written and oral submissions, Cr Thaler's Counsel identified the jurisdictional basis on which relief was sought. The "guiding principle" articulated in s 36 of the CAT Act was relied upon in that context. With respect to Counsel's submissions, as its terms make clear, s 36 of the CAT Act does not assist Cr Thaler in relation to the jurisdiction of the Tribunal to grant the injunctive relief sought by him.
6. Section 38(1) of the CAT Act, upon which Cr Thaler also relied, provides that "the Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision" and provides (38(2)) that the Tribunal is not bound by the rules of evidence and is to proceed (38(4)) with as little formality as the circumstances of the case permit and according to "equity, good conscience and the substantial merits of the case without regard to technicalities or legal terms". Cr Thaler relied on the definition of "interlocutory decision" in s 4 of the CAT Act which (s 4(a)) includes "the granting of a stay or adjournment". Section 4 of the CAT Act empowers the Tribunal to do certain things when its jurisdiction is enlivened. Whether s 4 and/or s 38 invest the Tribunal with jurisdiction is less apparent.
7. Cr Thaler submitted that the High Court has "recognised as a general principle that it is prima facie vexatious and oppressive to commence a second or subsequent action if an action is already pending with respect to the matter at issue (Moore v Inglis (1979) 9 ALR 509)". That was submitted to "at least by analogy" apply to "instigating this third and further disciplinary action" against Cr Thaler which was submitted to constitute "not only doubling up on the facts relied upon but also bypassing the orderly conduct of the matters by the Tribunal". Although requiring consideration in the determination of the balance of Cr Thaler's application, the "pending matter" of relevance for present purposes is the appeal against the second suspension order. A further suspension order would, for present purposes, be a new "matter".
8. A number of submissions with respect to asserted abuse of process, although relevant to the determination of the remaining issues raised in Cr Thaler's application of 17 October 2025, do not assume significance for present purposes.
9. In oral submissions, by reference to the submissions of the Secretary in reliance upon s 440L(3A) of the Local Government Act, and to s 440L(6) of the Act, Counsel for Cr Thaler submitted that, if the Secretary was not restrained from proceeding with the proposed disciplinary orders, Cr Thaler's disqualification from office pursuant to s 275 would be likely to lead to a by-election resulting in another councillor being appointed to replace Cr Thaler. It was submitted that, in those circumstances, whether that appointment would be nullified or set aside if Cr Thaler successfully challenged his second suspension, or the likely third suspension, was unclear and provided further support for granting the interlocutory relief sought by him. Although there is no evidence to support that contention, the Tribunal accepts that, in the absence of a constraint on doing so, if Cr Thaler is suspended for a third time, thereby triggering his disqualification from holding civic office, there would not appear to be any impediment to the holding of a by-election. The Tribunal accepts that, if that occurred, what would happen if Cr Thaler ceased to be disqualified is less than clear.

1. Counsel for the Secretary submitted that the Tribunal lacked jurisdiction to grant the interlocutory injunctive relief sought by Cr Thaler. It was further submitted that, if Cr Thaler was again suspended by the Secretary, any automatic disqualification "can and should be addressed" at that time by an application for a stay under s 440L of the Local Government Act. The Secretary conceded that, if suspended for a third time prior to the resolution of the appeal proceeding, s 275(1A) of the Local Government Act operated to automatically disqualify him from civic office for five years. It was submitted that Cr Thaler's contention that such disqualification would render the proceedings inutile and that the jurisdiction of the Tribunal would be frustrated was incorrect.
2. The Secretary submitted that if, as is likely, a third suspension order is made, Cr Thaler could appeal against such suspension order to the Tribunal, and seek a stay of the order which, if granted, would operate in accordance with s 440L(3A), which provides that:

"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 have that effect (as the case requires) until such time as the appeal is finally determined or withdrawn."

1. It was submitted in the alternative that if Cr Thaler's stay application of the third suspension order was refused, but he was ultimately successful in appealing against that order, or succeeded with his pending appeal against the second suspension order, s 275(1A)(g) would no longer operate.
2. The Secretary also relied on the provisions of s 440L(6) which provides that:

"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 would have resulted from suspension ceases to have effect."

1. Counsel for the Secretary fairly conceded that the remedy provided by s 440L(6) operates from the date of the order setting aside a suspension order which has not been stayed. In those circumstances, as submitted on behalf of Cr Thaler, whether success with his appeal against the second and/or third suspension order(s) would automatically, or necessarily result in his return to office is unclear.
2. It was accordingly submitted by the Secretary that, by the provisions identified above, the Local Government Act "contains a mechanism" to address either situation in which Cr Thaler may find himself, and that there is accordingly no need to consider whether the Tribunal "has an implied power to grant injunctive style relief". The Secretary submitted that the Tribunal had no such power. In the absence of authority supporting a finding that the Tribunal has implied or incidental powers, the Tribunal would not make that finding.
3. The Secretary submitted that, for present purposes, the jurisdiction of the Tribunal was confined to its "external appeal jurisdiction over a decision ... made by an external decision maker" pursuant to s 31 of the CAT Act and a "general jurisdiction over a matter" pursuant to s 29(2)(a) of the CAT Act. It was submitted that a "future decision which has not yet been made is neither a decision, nor part of a matter presently before the Tribunal". It was submitted that, until there were "proceedings" concerning a third suspension order against Cr Thaler, most obviously by way of appeal, the Tribunal lacked the "general" jurisdiction to grant the relief he seeks.
4. Cr Thaler's reliance on the power of the Tribunal to grant a stay or adjournment was submitted to be misconceived. The Secretary submitted that, in substance, Cr Thaler was not seeking a stay but rather an interlocutory injunction to restrain the Secretary from exercising a legal right. That was asserted to involve restraining the Secretary from doing something which Cr Thaler has no right to prevent the Secretary from doing (Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 119; Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; 99 ALJR 486).
5. It was submitted that nothing in the Local Government Act or the CAT Act "suggests the Tribunal has power to grant relief from future inchoate decisions, least of all in an external appeal proceeding". It was further submitted, in reliance upon the decision in MZAPC that Cr Thaler could not demonstrate a prima facie case for final relief in the Tribunal against a decision which the Secretary has not yet made, and that Cr Thaler could not successfully contend that it was necessary to grant the injunctive relief in order to avoid the fruits of a successful appeal(s) being rendered nugatory, preserve the integrity of the Tribunal's proceedings or protect its own jurisdiction.

1. Section 3 of the CAT Act articulates the objects of the Act, and provides (3(a)) for the establishment of an independent Tribunal which is enabled (3(b)):

(i) to make decisions as the primary decision maker in relation to certain matters, and

(ii) to review decisions made by certain persons and bodies, and

(iii) to determine appeals against decisions made by certain persons and bodies, and

(iv) to exercise such other functions as are conferred or imposed on it.

1. Having been created by statute, the Tribunal's jurisdiction is defined by that statute. Section 28 of the CAT Act is concerned with the jurisdiction of the Tribunal "generally" and provides (s 28(1)) that the Tribunal has "such jurisdiction and functions as may be conferred or imposed on it by or under this Act or under any other legislation". Section 28(2) identifies the "kinds of jurisdiction" which the Tribunal has. Most relevantly for present purposes, s 28(2)(c) invests the Tribunal with appellate jurisdiction with respect to external appeals. Section 31(1) of the CAT Act provides that external appeal jurisdiction is conferred by the legislation governing the decisions which can enliven the Tribunal's external appeal jurisdiction, or that Cr Thaler's appeal against his second suspension order is an external appeal pursuant to the Local Government Act and the CAT Act.
2. Section 29 of the CAT Act provides that the Tribunal has:

(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

(b) the matter does not otherwise fall within the administrative review jurisdiction appeal jurisdiction or enforcement jurisdiction of the Tribunal.

1. Section 29(2) provides that the Tribunal has jurisdiction in proceedings for the exercise of its general jurisdiction (a) to make "ancillary or interlocutory decisions of the Tribunal in the proceedings". It is apparent that jurisdiction pursuant to s 29(2)(a) is dependent on there being existing proceedings, and that, unless enlivened pursuant to s 29(2)(b), which has sensibly not been relied on, a "stand alone" application for ancillary or interlocutory relief cannot enliven the Tribunal's general jurisdiction.
2. It is not in contest that, if the Tribunal is exercising jurisdiction pursuant to s 28 of the CAT Act, it is empowered to grant a stay of, relevantly for present purposes, the orders which are the subject of the proceedings before the Tribunal, which in the present circumstances, are the external appeal proceedings pursuant to s 28(2)(c) of the CAT Act. Cr Thaler has unsuccessfully sought to stay the second suspension order in those proceedings.
3. Unsurprisingly, no provision of the CAT Act invests the Tribunal with jurisdiction under the Local Government Act. As the terms of s 28 envisage, such jurisdiction and functions as the Tribunal may have with respect to matters arising under the Local Government Act are the jurisdiction and functions which are "conferred or imposed on it" by the Local Government Act. At the risk of oversimplification, the CAT Act is concerned with how the Tribunal exercises jurisdiction, rather than whether it has jurisdiction with respect to any particular matter or statute.
4. Sections 36 and 38 of the CAT Act, on which Cr Thaler relied, find expression in Part 4 of the Act, which is concerned with "practice and procedure". As their terms confirm, the provisions of Part 4 prescribe how the Tribunal exercises jurisdiction, but are not directed to the existence of jurisdiction.
5. Although other provisions of the Local Government Act require consideration in the context of the remaining orders sought by Cr Thaler, only some provisions require consideration for present purposes.
6. Section 440I of the Local Government Act is concerned with disciplinary action for misconduct, and relevantly provides (s 440I(2)(g)) that the Departmental Chief Executive may suspend a councillor who has engaged in misconduct for a period not exceeding 3 months. Pursuant to s 440L, a councillor who is thus suspended has a right of appeal to the Tribunal. If Cr Thaler is again suspended, that would be pursuant to s 440I of the Act, and would be appellable purusuant to s 440L.
7. Section 440L(3) of the Local Government Act invests the Tribunal with jurisdiction to stay any decision made by the Departmental Chief Executive until such time as the Tribunal determines an appeal against a suspension order. Section 440L(3A) provides that, if the Tribunal stays a suspension order that has resulted or will result in disqualification from civic office under s 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".
8. Section 440L(6) of the Local Government Act provides that, if the tribunal sets aside a decision to suspend a councillor, inter alia, "any disqualification that resulted from the suspension ceases to have effect". Without needing to express a concluded view in this decision, until "ceased" pursuant to the provision, the suspension would appear to be valid.

1. In the event that, as appears likely, Cr Thaler is suspended for a third time, and appeals against that suspension, he could undoubtedly seek a stay pending the determination of the appeal, but, nothing to which the Tribunal has been referred establishes the jurisdiction to grant injunctive relief to restrain the Secretary from exercising rights or powers pursuant to the Local Government Act. As it is the Local Government Act which invests the Tribunal with jurisdiction under that Act, it would be necessary to identify a provision of that Act which confers jurisdiction and power to grant the relief Cr Thaler seeks. Cr Thaler has not identified such a provision.
2. Brief reference to the jurisdiction of the Supreme Court to grant relief in the present circumstances suggests that the Tribunal's lack of jurisdiction does not necessarily mean that Cr Thaler is without a forum in which he might pursue the relief which he currently seeks. Section 23 of the Supreme Court Act 1970 (NSW) provides that the Court "shall have all jurisdiction which may be necessary for the administration of justice in New South Wales". Section 66(4) of the Supreme Court Act provides that "the Court may at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient to do so".
3. The learned authors of On Equity suggest, at page 1032 that it is "not uncommon for a person to obtain an injunction from the Supreme Court to restrain a defendant from wrongfully removing them from office". In Ariansen v Bromfield (1957) State Reports (NSW) 24, Hardie J held that a member of a shire or municipal council has a statutory right to attend meetings of the council, and that the president or mayor of such council was under a statutory duty to permit a member to so attend unless there had been a valid and effective determination to the contrary pursuant to the provisions of s 87(2)(f) of the Local Government Act 1919. It was thus held that the Supreme Court in equity had jurisdiction to grant an injunction to prevent the wrongful exclusion of a member of such a council from meetings of that council. The purported exclusion of the member from meetings of the council in that case was in reliance upon remarks made by the council member which he repeatedly refused to withdraw. The council member sought injunctive relief to restrain the mayor from excluding or removing him from meetings of the council unless he apologised without reservation for the alleged acts of disorder.
4. In Howes v Gosford Shire Council (1962) NSWR 58 Jacobs J held that, in order to attract the jurisdiction of the Supreme Court in equity a plaintiff required a "special interest relating to the subject of the claim". His Honour held that a shire clerk, although a servant of the council and governed and protected by statutory provisions in regard to his service had a "special interest" in his right to continue in the service. In those circumstances, the employee was held to have standing to seek injunctive relief. His Honour observed that the existence of a possible "concurrent right" in the Industrial Commission was not sufficient to deprive the Court in Equity of jurisdiction to entertain the plaintiff's application for injunctive relief.
5. If the Tribunal has jurisdiction to grant the interlocutory injunctive relief sought by Cr Thaler, it would not exercise the discretion to do so, notwithstanding that the matters relied on in support of the challenges which remain to be decided raise serious issues for determination. The reasons why the Tribunal would decline to grant the relief sought by Cr Thaler can be shortly stated.
6. In view of the effect of the provisions of the Local Government Act identified earlier in these reasons, the Tribunal does not find that refusal of the injunctive relief sought by Cr Thaler would be likely to visit an irreparable injustice upon him, or be likely to render nugatory the fruits of success with his present appeal, or the appeal which he would be likely to lodge against a third suspension imposed upon him. It is not in doubt that, if Cr Thaler is further suspended, he has a right to appeal against that suspension and, having lodged an appeal, the Tribunal has jurisdiction to entertain, and if deemed appropriate, grant a stay of the suspension pending the determination of his appeal.
7. In equity, an interlocutory injunction will only be granted when there is an underlying cause of action to be tried, its purpose being to preserve the subject matter of the dispute, and the status quo, with the least injury to all parties, until the hearing of the substantive dispute (Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63). Unless and until Cr Thaler is again suspended, and appeals against such suspension, there is no underlying claim which could be preserved, or lost if not preserved. Regardless of the test to be applied, in the present circumstances, there having been no suspension, and thus nothing against which to appeal, Cr Thaler cannot demonstrate that he has a prima facie case (Beacham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1), or that here is a serious question to be tried (Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (1997) 18 WAR 102; LGERA 436). Unless and until Cr Thaler is again suspended, there is no "subject matter" which could be preserved or lost.
8. Given the actual and possible implications for him of a third suspension order not being stayed, it is improbable that the Tribunal would not facilitate an urgent hearing of any stay application which Cr Thaler may make if he appealed against such an order. The principles governing stay applications are not in doubt (see Alexander v Cambridge Credit Corp Ltd [1985] 2 NSWLR 685 at [694]). The observations of Campbell JA in Woolworths Ltd v Strong (No. 2) [2011] NSWCA 72; (2011) 80 NSWLR 445 at [68] with respect to risk of irreparable loss or damage would, particularly having regard to the submissions of Cr Thaler's Counsel by reference to s 440L(6) in the present application, be likely to assume prominence in the determination of any stay application.

1. The Tribunal is not persuaded that it has jurisdiction to grant the injunctive relief sought by Cr Thaler and that, if it does, the jurisdiction ought not be exercised to grant the relief which Cr Thaler seeks.

(1) The relief sought in order 1 of the application of Councillor Thaler filed on 17 October 2025 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.