Jeray v Blue Mountains City Council (No 2)

1. On 23 October 2025, the Registrar received a letter of that date from Mr Jeray in which he withdrew the 23 September 2025 Jeray application (the 23 October 2025 Jeray letter) and enclosed an application for miscellaneous matters in which he seeks the following orders (the 23 October 2025 Jeray application):

"1. That this miscellaneous application be heard and determined together with the costs application.

2. That the Appeal Panel's decision of 11 September 2025 be set aside.

3. That the Appeal Panel's decision of 11 September 2025 be incorporated into a new single decision determined together with the decisions of the costs application and this miscellaneous application."

1. On 29 October 2025, the Registrar received a letter of that date from Mr Jeray in which he requests that the appeal be listed for mention on 3 November 2025 to make directions for the 23 October 2025 Jeray application and the Council costs application (the 29 October 2025 Jeray request).
2. On 3 November 2025 at 9.20 pm, Mr Jeray sent an email to the Registrar, which was copied to the Council's solicitor, in which he requests that the appeal be listed for mention and further directions for the reasons in the 29 October 2025 Jeray request (the 3 November 2025 Jeray request).
3. On 9 November 2025 at 3.29 pm, Mr Jeray sent an email to the Appeal Panel, which was copied to the Council's solicitor, in which he requests that the appeal be listed for mention and further directions promptly for the reasons in the 29 October 2025 Jeray request and the 3 November 2025 Jeray request (the 9 November 2025 Jeray request).
4. We have decided as follows:

(1) that the 29 October 2025 Jeray request, the 3 November 2025 Jeray request and the 9 November 2025 Jeray request should be refused;

(2) that the 23 September 2025 Jeray application and the 23 October 2025 Jeray application so far as orders 2 and 3 should be dismissed;

(3) Mr Jeray should pay the Council's costs of and incidental to the appeal as agreed or assessed on the ordinary basis.

(1) the 29 October 2025 Jeray request;

(2) the 3 November 2025 Jeray request;

(3) the 9 November 2025 Jeray request;

(4) whether the 23 September 2025 Jeray application should be dismissed;

(5) whether a hearing of the 23 October 2025 Jeray application should be dispensed with;

(6) the 23 October 2025 Jeray application;

(7) whether a hearing of the Council costs application should be dispensed with;

(8) the Council costs application.

1. We have decided to refuse the 29 October 2025 Jeray request as the requested date for the listing of the appeal for mention on 3 November 2025 has passed. Ordinarily it is not convenient to convene the Appeal Panel at short notice. Relevant considerations include the availability of the members comprising the Appeal Panel and a hearing room as well as the preparation of documents for the Appeal Panel. There were no compelling reasons of urgency to list the appeal for mention on 3 November 2025.

1. On 24 October 2025, the Registrar sent a letter of that date to Mr Jeray and the Council's solicitors requesting documents and comments on the 23 October 2025 Jeray application by 11.00 am on 3 November 2025 and whether or not they objected to a hearing being dispensed with (the 24 October 2025 NCAT letter).
2. Mr Jeray in the 3 November 2025 Jeray request relevantly states:

"...

The appellant is unable to make "comments" in accordance with the Registrar lszeto's instructions of 24 Oct 2025 until this matter is listed for mention and directions, as per the appellant's letter to the Registrar, dated and submitted on 29 Oct 2025. The appellant notes the matter was not listed for mention on 3 Nov 2025, as requested in the letter and seeks the matter to again be listed for mention and further directions as soon as possible.

The appellant notes the registrar's instructions of 24 Oct 2025 appear to unfairly undermine the appellant's sought orders in his miscellaneous matters application submitted on 23 Oct 2025, which seek the miscellaneous matters application and the respondent's costs application to be determined together into a single decision that also incorporates the Appeal Panel's decision of 11 Sep 2025.

I trust this matter will be listed for mention and further directions as soon as possible and prior to the determination of the registrar's instructions of 24 Oct 2025."

1. We have decided to refuse the 3 November 2025 Jeray request for the following reasons:

(1) the listing of the appeal for mention and further directions in relation to the 23 October 2025 Jeray application as soon as possible would be unnecessary and inconsistent with the guiding principle under s 36(1) of the NCAT Act. The parties have been given an opportunity to provide documents and comments on the 23 October 2025 Jeray application by the 24 October 2025 NCAT letter. The listing of the appeal for mention and further directions in respect of this application would occasion delay and unnecessary additional cost;

(2) the listing of the Appeal for mention and further directions in relation to the Council costs application as soon as possible would be unnecessary and consistent with the guiding principle under s 36(1) of the NCAT Act. Mr Jeray has had the opportunity to adduce evidence and make submissions in opposition to the Council costs application pursuant to the procedural appeal costs order. The listing of the appeal for mention and further directions in respect of this application would occasion delay and unnecessary additional cost.

1. Mr Jeray in the 9 November 2025 Jeray request relevantly states:

"For the third time, I request this matter to be promptly listed for mention and further directions for the reasons already provided in my previous requests of 29 Oct 2025 and 3 Nov 2025 and emphasise again that it is inefficient and unfair to me to determine my miscellaneous matters application of 23 Oct 2025 separately from the respondent's costs application, which is what Registrar lszeto's instructions of 24 Oct 2025 appear to propose. I again note my miscellaneous matters application seeks the Appeal Panel to determine it together with the costs application, so a separate decision of each application would undermine my miscellaneous matters application and unfairly make it more costly and inefficient to appeal two decisions instead of one decision in the Court of Appeal. I consider the Appeal Panel has a duty to consider these issues and ensure just, quick and cheap (i.e. efficient) decision-making (including their consequences) in accordance with s 3 of the Civil and Administrative Tribunal Act 2013 and Division I of Part 6 of the Civil Procedure Act 2005.

..."

1. We have decided to refuse the 9 November 2025 Jeray request for the following reasons:

(1) the listing of the appeal for mention and further directions in relation to the 23 October 2025 Jeray application promptly would be unnecessary and inconsistent with the guiding principle under s 36(1) of the NCAT Act. The parties have been given an opportunity to provide documents and comments on the 23 October 2025 Jeray application by the 24 October 2025 NCAT letter. The listing of the appeal for mention and further directions in respect of this application would occasion delay and unnecessary additional cost;

(2) the listing of the Appeal for mention and further directions in relation to the Council costs application as soon as possible would be unnecessary and inconsistent with the guiding principle under s 36(1) of the NCAT Act. Mr Jeray has had the opportunity to adduce evidence and make submissions in opposition to the Council costs application pursuant to the procedural appeal costs order. The listing of the appeal for mention and further directions in respect of this application would occasion delay and unnecessary additional cost.

Whether the 23 September 2025 Jeray application should be dismissed

1. On 10 October 2025, we made orders for the lodgement and service by the Council of submissions and by Mr Jeray of any submissions in reply for the hearing of the 23 September 2025 Jeray application.
2. Mr Jeray in the 23 October 2025 Jeray letter relevantly states:

"...

The appellant notes the Appeal Panel did not make timetable orders for the appellant's miscellaneous application lodged on 23 September 2025 until 9 October 2025, which was a delay of 16 days! This delay unfairly prejudiced the appellant in having his application determined before 9 October 2025, the last day for the appellant to file his notice of intention to appeal its decision of 11 September 2025 in the Court of Appeal. Consequently, the appellant has no option but to withdraw the application.

..."

1. We have decided to dismiss the 23 September 2025 Jeray application in view of its withdrawal by Mr Jeray.

Whether a hearing of the 23 October 2025 Jeray application should be dispensed with

1. Mr Jeray has not made any submissions in response to the 24 October 2025 NCAT letter as to whether he objects to a hearing of the 23 October 2025 Jeray application being dispensed with.
2. The Council has consented to a hearing of the 23 October 2025 Jeray application being dispensed with.
3. We are satisfied that the issues for determination in respect of the 23 October 2025 Jeray application can be adequately determined in the absence of the parties by considering their evidence and written submissions. Accordingly, we have decided pursuant to s 50(2) of the NCAT Act to make an order dispensing with a hearing in relation to this application.

1. Before considering this issue, we have set out or summarised the submissions of the parties.

1. Mr Jeray in the 23 October 2025 Jeray application states the following grounds for the orders he is seeking:

"Grounds for orders sought

1. The substantive, costs and miscellaneous application decisions relate to the same matter and issues.

2. Separate substantive, costs and miscellaneous application decisions unfairly prejudice the appellant and are counter to the requirements of section 36 of the Civil and Administrative Tribunal Act 2013 that require the just, quick and cheap resolution of the real issues in the proceedings. A new joint decision of the substantive, costs and miscellaneous decisions will require only one appeal matter in the Court of Appeal thereby reducing the appellant's appeal costs and increasing the court efficiency of the appeal, as separate substantive, costs and miscellaneous application decisions will unfairly require the appellant to file more costly and inefficient separate court appeal matters.

3. The respondent sought and gave argument for its costs at {26]-[30] of its written submissions of 5 May 2025 in the substantive matter.

4. A new joint decision of the substantive, costs and miscellaneous application decisions does not prejudice the respondent.

5. The failure of the Appeal Panel to determine the appellant's miscellaneous application of 23 September 2025 before 9 October 2025."

1. Mr Jeray did not make any comments or submissions in relation to the 23 October 2025 Jeray application in response to the 24 October 2025 NCAT letter.

1. The Council opposes the 23 October 2025 Jeray application and makes the following submissions in response to the 24 October 2025 NCAT letter:

(1) as the Appeal Panel has made a final decision to dismiss the appeal on 11 September 2025 it is now functus officio and unable to review that decision;

(2) if Mr Jeray is not satisfied with the final decision made by the Appeal Panel he has a right of appeal pursuant to s 83 of the NCAT Act. It is a matter for him whether or not he exercises that right of appeal;

(3) the decision by the Appeal Panel with respect to the Council costs application is the only matter that needs to be determined. That matter can be considered by the Appeal Panel and determined in the ordinary way and orders to facilitate that matter were made on 11 September 2025. It is a matter for Mr Jeray whether or not he complies with the procedural appeal costs order. He has provided no reason for his failure to comply with this order;

(4) if Mr Jeray is dissatisfied with any decision ultimately made by the Appeal Panel with respect to the outstanding matter of costs then he has a right of appeal with respect to that decision pursuant to s 83 of the NCAT Act;

(5) the orders sought in the 23 October 2025 Jeray application seeking to "set aside" a final decision of the Appeal Panel would seem to be novel and not permitted under any legislation;

(6) the 23 October 2025 Jeray application only acts to create further delay in the finalisation of the matter and also to increase the costs of the Council.

1. We have decided to dismiss the 23 October 2025 Jeray application so far as orders 2 and 3 because we are not satisfied that we have power to make these orders. Mr Jeray has not identified any source of power to make these orders. In making the substantive appeal decision we have completed our function under s 81 of the NCAT Act of determining Mr Jeray's appeal other than the Council costs application.
2. Even if we had been satisfied that we have power to make these orders, we would not have done so. It is a matter of speculation whether Mr Jeray will appeal against the order made on the Council costs application. Further, the convenience of Mr Jeray in appealing against the substantive appeal decision and a possible adverse costs decision in a single appeal would not have constituted a reason to have exercised any such power.

Whether a hearing of the Council costs application should be dispensed with

1. Neither Mr Jeray nor the Council made any submissions on this issue in response to the procedural appeal costs order.
2. We are satisfied that the issues for determination in respect of the Council costs application can be adequately determined in the absence of the parties by considering their evidence and written submissions. Accordingly, we have decided pursuant to s 50(2) of the NCAT Act to make an order dispensing with a hearing in relation to this application.

1. The Council costs application is made under s 60(2) of the NCAT Act on the basis of special circumstances within s 60(3)(c), (e) and (g). Before considering this issue, we have set out s 60 of the NCAT Act and the applicable legal principles, and summarised the Council's submissions. We note that Mr Jaray has not lodged any submissions in response to the procedural appeal costs order.

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -

...

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

...

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

...

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may -

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

costs includes -

...

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

The applicable legal principles under s 60(2) of the NCAT Act

1. In FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278 (FZK (No 4)) at [31]-[41], [52], the Appeal Panel set out the general principles applicable to an award of costs under s 60(2) of the NCAT Act:

"[31] The usual rule is that a party is to pay their own costs of proceedings but, as the legislation makes clear, the Tribunal may make an order for costs if satisfied that there are "special circumstances": s 60(2) NCAT Act.

[32] Six leading principles are apposite.

[33] First, special circumstances are circumstances that are out of the ordinary. It is not necessary to establish extraordinary or exceptional circumstances: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11] quoting Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 per Santow JA at [60]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].

[34] Secondly, the onus is on the party seeking an order for costs to satisfy the Tribunal that there are special circumstances warranting an award of costs in its favour: see McEwan v Port Stephens Council (No 2) [2022] NSWCATAP 386 at [38].

[35] Thirdly, the Tribunal is to consider whether the circumstances are sufficient to amount to special circumstances that justify departing from the general rule that each party bear its own costs: BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]. The mere existence of one of the enumerated factors in s 60 of the NCAT Act will not of itself be sufficient to warrant the conclusion that there are special circumstances.

[36] Fourthly, each case will depend on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay and Wes Davies [2015] NSWCATAP 152 at [27].

[37] Fifthly, mere success (or failure) of an application does not give rise to special circumstances: The Owners - Strata Plan 5319 v Price [2020] NSWCATAP 245 at [46].

[38] Sixthly, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48].

[39] Overall, what is required is for the Tribunal to exercise its discretion in a manner which is fair and reasonable having regard to the particular circumstances of a particular case.

[40] The decision to award costs pursuant to s 60(2) of the NCAT Act involves, in effect, two decisions. The first is the Tribunal's satisfaction that there are special circumstances warranting an award of costs. The satisfaction involves a degree of subjectivity and thus, in a broad sense, may be described as a discretionary decision (as described in respect of similar legislative provisions in a different statutory context in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [20] per Gleeson CJ, Gaudron and Hayne JJ). If the Tribunal has regard to any matters as set out in s 60(3) of the NCAT Act, the matters must be given due weight.

[41] As s 60(2) of the NCAT Act makes clear, if the requisite satisfaction is reached, the Tribunal "may" make the order. Satisfaction as to the existence of special circumstances merely enlivens the discretion to award costs rather than mandating an award of costs: Al-Aaraj v Commissioner of Police, NSW Police Force (No 2) [2025] NSWCATAP 166 at [40]; Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [32]. This necessitates the making of a second decision (which we term the overall discretion) as to whether in all the circumstances, an award for costs should be made."

"[52] An award of costs is intended to be compensatory and not punitive: Latoudis v Casey (1990) 190 CLR 534 at 567; [1990] HCA 59; Grasso v The Owners - Strata Plan No. 52399 [2022] NSWCATAP 91 at [12(6)]."

1. In FZK (No 4) at [42]-[43], the Appeal Panel considered the meaning of "no tenable basis" in s 60(3)(c) of the NCAT Act:

"[42] The interpretation of s 60(3)(c) of the NCAT Act was considered by the Appeal Panel in DYH v Public Guardian (No 3) [2022] NSWCATAP 34. The Appeal Panel stated at [20]-[22]:

"20 The Victorian case law considered an equivalent provision to s 60(3)(c) of the NCAT Act provides some helpful analysis. The Victorian Civil and Administrative Tribunal may also award costs if fair to do so having regard to 'the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law' (Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT ACT"), s 103(3)(c). The meaning and operation of s 103(3)(c) of the VCAT Act were considered by Senior Member Byard in Dennis Family Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691. He said at [14] - [15]:

"The relative strengths of the claims appear to refer to the strength of claims of one party compared to the strength of the claims of another. A difficult, doubtful or test case might be necessary to clarify the legal position of the parties. It is probably seldom that an order for costs would be made having regard to this consideration alone where there was a real issue to be tried and real justification for the claims made on either side. I take it that it is generally where there is a very weak case for one side, or none at all, that this consideration is likely to lead to an order for costs. I note that the wording says that the absence of a 'tenable basis in law or fact' is a consideration included within the consideration of the relative strengths of the claims of the parties.

This certainly cannot mean that an unsuccessful party should be required to pay costs because, at the end of the case, that party's claims have been found to be untenable in fact or law to the extent that they were not upheld and were not successful. That would amount to 'costs following the event'. It would compromise the general rule created in s 109(1)."

21 The Senior Member also commented (at [19]) that '"untenable" in the context of s 109(3)(c) means something like so weak as to be unarguable, rather than merely weak'.

22 In our view, the Senior Member's observations apply with equal force to s 60(3)(c) of the NCAT Act."

[43] Special circumstances may be established because a claim is lacking in substance, even if such a finding was not expressly made in determining the substantive application, provided such a finding is not inconsistent with the reasons given for dismissing the application: Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 (Zucker) at [52]."

1. In FZK (No 4) at [44]-[45], the Appeal Panel considered the meaning of "frivolous or vexatious" in s 60(3)(e) of the NCAT Act:

"[44] In respect of s 60(3)(e) of the NCAT Act (whether proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance), the Appeal Panel has adopted the statement of Ipp JA in Owners Corporation - Strata Plan 4521 v Zouk [2007] 69 NSWLR 61; [2007] NSWCA 23 (Zouk) at [45], that "lacking in substance" means not "reasonably arguable". It is a meaning, his Honour held, not dissimilar to "frivolous, vexatious, misconceived": Zouk at [45], which has been applied to s 60 of the NCAT Act by this Tribunal: Zucker at [50].

[45] The words "frivolous" and "vexatious", used together, may signify that the application lacks a legal foundation or that it is "not legally properly based": Fox v Commissioner of Police, New South Wales Police Force [2016] NSWCATAD 77 (Fox v Commissioner of Police) at [26], quoting 601 Management Company Pty Ltd v Commissioner of State Revenue [2011] VCAT 2129 at [12], and Fox v Commissioner of Police at [28] citing Re Filsell and Comcare [2009] AATA 90 at [33]. The term "vexatious" "can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are so obviously untenable or manifestly groundless as to be utterly hopeless": Re Filsell and Comcare [2009] AATA 90 at [33], cited in Fox v Commissioner of Police at [28]."

1. In FZK (No 4) at [46]-[50], the Appeal Panel considered whether unsubstantiated assertions of improper conduct may constitute special circumstances:

"[46] Allegations of deliberate falsehood, perjury, bad faith, personal impropriety and corruption might be described as scandalous: Young v Cooke [2016] NSWSC 408 at [50(c)] per Garling J; Munsie v Dowling (No 4) [2015] NSWSC 37 at [18] per Hoeben CJ at CL. Allegations are scandalous where they scandalise the Court or an individual by being on the Court record: Young v Cooke at [50(c)]. Such allegations have "no place in the determination by the Court of whether relief ought to be granted" and in part led the summonses to be struck out: Young v Cooke at [50(c)]. Similarly, in Munsie v Dowling (No 4), Hoeben CJ at CL said that the defendant's "scandalous and unsubstantiated" assertions of judicial corruption and of personal impropriety on the part of the opposing party led, in part, to the defendant's submissions being struck out as "scandalous and embarrassing": at [18], [25].

[47] Scandalous allegations might amount to an abuse of process: ZSJ v ZSK [2021] NSWCATAP 144 (ZSJ v ZSK) at [57]. Alternatively, an application that seeks to vindicate findings of a criminal offence or misconduct might be described as having a collateral purpose, as those findings cannot be made in this forum: Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91; [2020] NSWCA 232 at [36]- [48] per McCallum JA, MacFarlan JA agreeing at [1], Leeming JA agreeing at [2]; Attorney-General (NSW) v Wentworth [1988] NSWCA 8; (1988) 14 NSWLR 481, 491 per Roden J.

[48] Various appeal panels have considered whether scandalous allegations may or may not constitute "special circumstances" for the purpose of an award of costs under s 60 of the NCAT Act. However, we note that concerning an award of costs, every matter depends on its facts and is to be viewed in the context of its own proceedings.

[49] This is exemplified by the different outcomes of the cost applications of the following three decisions. On the one hand, in Liang v University of Technology, Sydney [2019] NSWCATAP 17 at [19], costs were awarded in part due to allegations contained in the appellant's appeal submissions which were described by the Appeal Panel as "scandalous". These allegations, when considered cumulatively with other matters, were found to constitute special circumstances under s 60 of the NCAT Act, although the Appeal Panel noted that the appellant was self-represented. On the other hand, in ZSJ v ZSK and MSP Consulting and Building Constructions Pty Ltd v Karkoulas (No 2) [2016] NSWCATAP 183 (MSP Consulting), despite scandalous submissions made by the appellant, costs were not awarded, as lack of legal representation was found to tip the balance against an award of costs: ZSJ v ZSK at [57]; MSP Consulting at [35].

[50] All three matters concerned the grant of an award of costs against an appellant who was self-represented."

1. In FZK (No 4) at [51], the Appeal Panel considered the position of self-represented parties:

"[51] Although lack of representation can tip the balance against an award of costs, the Appeal Panel has noted that a party, including a self-represented party, does not have a "licence to use NCAT's proceedings to make scandalous allegations against an opponent": ZSJ v ZSK at [56]."

(1) section 60(3) of the NCAT Act applies because:

(a) the strength of Mr Jeray's claim is so poor: s 60(3)(c);

(b) the proceedings are frivolous and vexatious - a case law search of Mr Jeray's claims against the Council demonstrates the latter and the strength of the claim demonstrates the former: s 60(3)(e);

(c) any other matter, such as the submission Mr Jeray made impugning the Information Commissioner and this Tribunal without a proper basis for doing so: s 60(3)(g);

(2) as it only seeks costs as compensation if the appeal is dismissed the discretion ought to be exercised;

(3) Mr Jeray should be ordered to pay its costs on the ordinary basis.

1. The consideration of the Council costs application involves answering the first and may involve answering the second of the following two questions:

(1) whether there are special circumstances warranting an award of costs in favour of the Council;

(2) if so, whether the discretion should be exercised to award costs.

Whether there are special circumstances warranting an award of costs in favour of the Council

(1) the Jeray Appeal Submissions and the Jeray costs application had no tenable basis in fact or law within s 60(3)(c) of the NCAT Act because they were so weak as to be unarguable as explained in the substantive appeal decision;

(2) Mr Jeray's appeal including the Jeray costs application was frivolous and vexatious within s 60(3)(e) of the NCAT Act because it was not legally properly based and was so obviously untenable or manifestly groundless as to be utterly hopeless as explained in the substantive appeal decision;

(3) Mr Jeray made unsubstantiated assertions of improper conduct against the Information Commissioner as set out in the substantive appeal decision: "has compromised her independence in the matter"; "unable to impartially carry out her role as amicus curiae"; "has acted in bad faith and undermined the integrity of her office"; "she is acting in bad faith as an amicus curiae because she has a bias in the proceedings". We consider these assertions to be relevant matters within s 60(3)(g) of the NCAT Act;

(4) Mr Jeray made unsubstantiated assertions of improper conduct against the Tribunal which we summarised as: "The Tribunal's decisions to allow the biased Information Commissioner to act in bad faith in support of the Council in the proceedings, infected the integrity, credibility and impartiality of the Tribunal, which compromised its standing to hear and determine the proceedings". We consider these assertions to be relevant matters within s 60(3)(g) of the NCAT Act.

1. We are satisfied that each of these findings is of sufficient weight as to constitute special circumstances warranting an award of costs within s 60(2) of the NCAT Act.

If so, whether the discretion should be exercised to award costs

1. We are satisfied that we should exercise the discretion under s 60(2) of the NCAT Act to award the costs of the appeal in favour of the Council. Whilst we accept that the mere existence of special circumstances does not, of itself, justify the exercise of the discretion to award costs, in this case, we consider that there are special circumstances warranting an award of costs. These are the raising of unsubstantiated assertions of improper conduct against the Information Commissioner and the Tribunal, the lack of a tenable basis of the claims in the appeal, and the appeal being frivolous and vexatious. These considerations are weighty. We take into consideration that Mr Jeray is self-represented. Nevertheless, we do not see this factor as sufficient to militate against the gravity of the special circumstances we have identified. There are no countervailing factors against the exercise of the discretion in this manner.
2. It follows that Mr Jeray should pay the Council's costs of and incidental to the appeal as agreed or assessed on the ordinary basis.

(1) The request of the appellant made on 29 October 2025 to list the appeal for mention on 3 November 2025 is refused.

(2) The request of the appellant made on 3 November 2025 to list the appeal for mention and further directions as soon as possible is refused.

(3) The request of the appellant made on 9 November 2025 to list the appeal for mention and further directions as soon as possible is refused.

(4) The application for miscellaneous matters of the appellant lodged on 23 September 2025 is dismissed.

(5) A hearing of the application for miscellaneous matters of the appellant lodged on 23 October 2025 is dispensed with.

(6) The application for miscellaneous matters of the appellant lodged on 23 October 2025 so far as orders 2 and 3 is dismissed.

(7) A hearing of the application of the respondent that the appellant pays its costs of the appeal is dispensed with.

(8) The appellant is to pay the respondent's costs of and incidental to the appeal as agreed or assessed on the ordinary basis.

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.