Kelly v Smith

Mr Smith's submissions

1. As to the application being frivolous and untenable, Mr Smith relies on pars [25] and [26] of the primary decision, namely our findings that: 25. There is no evidence before the Tribunal on which it could find that the information in the Candidate Information Sheet was incorrect. On the contrary, the evidence before the Tribunal, being the affidavit evidence of Mr Smith, positively establishes that the information in the Candidate Information Sheet was correct. 26. However, even if we had found (which we do not) that the information in the Candidate Information Sheet was not correct, this application would have failed, as there was no evidence to show that the irregularity would have resulted in a different outcome to the election. In relation to this aspect of the application, it would have been necessary for Mr Kelly to demonstrate that the result of any irregularity would have rendered the results of the election uncertain. However, there was no evidentiary material about this at all.
2. Mr Smith also relies on the decision of the NSW Court of Appeal in Hopkins v Governor-General of Australia [2013] NSWCA 1068 where the Court stated at [71] and [71]: 70. An examination of this claim against these authorities and the statutory provisions, demonstrates that Mr Hopkins' claim is hopeless, there is no evidence which exists in support of it, nor can evidence be obtained to support it. 71 I am satisfied that the case is a very clear one. It is obviously untenable and it cannot possibly succeed. It is manifestly groundless and its deficiencies are such as not to admit of any rational argument in support of the relief claimed in the proceedings.
3. As to the application being vexatious, Mr Smith relies on the decision of the Appeal Panel of the Tribunal in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [37]: As to the submission that the appeal was frivolous or vexatious or otherwise misconceived or lacking in substance, in Attorney General v Wentworth (1988) 14 NSWLR 481 at 491 Roden J stated that proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise, or if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. That decision has been followed in many cases: see for instance Attorney General v Bhattarcharya [2003] NSWSC 1150 and Attorney General v Betts [2004] NSWSC 901. While those cases are authorities concerning whether or not a litigant should be prevented from commencing proceedings, except with the leave of the court, by reason of habitually and persistently instituting vexatious proceedings, the passage of Roden J referred to provides a useful approach to understanding the concept of proceedings being frivolous or vexatious or otherwise misconceived or lacking in substance.
4. Relying on that authority, Mr Smith submits that it is open to the Tribunal to find that the application was vexatious, and for that reason he should be awarded costs on an indemnity basis.
5. Finally, as to the application constituting an abuse of process, the respondent submits that Mr Kelly's instigation of two investigations by the NSW Electoral Commission and a concurrent application to the Tribunal in relation to the same subject is not only vexatious, but also an abuse of process. In this respect he relies on Moore v Inglis (1976) 50 ALJR 589 and Commonwealth v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192.

Mr Kelly's submissions

1. Mr Kelly's submissions do not directly address s 60. However, his summary states: As a layman, the Applicant has taken information provided by government officers and acted in the public interest and in good faith. Moreover, he has made reasonable effort on multiple occasions, directly and via agents, to resolve the various matters which remained outstanding. By virtue of their media campaign and unwillingness to mediate or to discuss resolution the Respondents have demonstrated their aim to drag the matters out to increase the potential cost to the Applicant. The Applicant made submissions via different authorities, but each submission was frustrated, denying public scrutiny of the matters. The Respondents have not assisted their position by withholding information from the Tribunal and only provided said information when pressed by the Applicant's diligent efforts to bring the information to light in the public; interest. it is unknown if the Respondent Smith has taken steps to correct the ASIC record with regard to his shareholdings of DP Smith (Homes) Pty Ltd. Finally, it is the Applicant's request that the costs Order be set aside and an Order for no costs be made.
2. Attached to the submissions is an affidavit of Mr Kelly affirmed 22 June 2018. This affidavit sets out the steps taken by Mr Kelly to "resolve the matters" (par [8]), and asserts that Mr Smith "engag[ed] in conduct that could only be interpreted at escalating the matters". Mr Kelly states in the affidavit that "[a]t every turn, [Mr Smith] delayed and obfuscated with regard to full, frank and timely disclosures" (par [10]). Mr Kelly states that he believes that he had a public interest obligation to shed light on these matters (par [10]).
3. Finally, Mr Kelly also states that the costs incurred by Mr Smith was mostly of his own doing, and could have been mitigated by "full, frank and timely" disclosure (par [10]). He submits that his application was neither vexatious, frivolous nor an abuse of process. In this respect, he relies on the decision of the Tribunal in Kelly v Szatow [2018] NSWCATOD 64. At [64] the Tribunal stated: It is understandable that a self-represented litigant who is not legally qualified might commence proceedings in the Tribunal with the knowledge that the Tribunal does have some jurisdiction in regard to local council matters. In those circumstances I do not regard Mr Kelly's conduct in bringing the applications as vexatious.

Consideration

1. We find that the application was so weak as to be untenable. We note that no direct submission was made on this issue by Mr Kelly. The application was untenable because, as we found at pars [25] and [26] of the primary decision, there was no evidence to support the application. In those paragraphs we stated: 25. There is no evidence before the Tribunal on which it could find that the information in the Candidate Information Sheet was incorrect. On the contrary, the evidence before the Tribunal, being the affidavit evidence of Mr Smith, positively establishes that the information in the Candidate Information Sheet was correct. 26. However, even if we had found (which we do not) that the information in the Candidate Information Sheet was not correct, this application would have failed, as there was no evidence to show that the irregularity would have resulted in a different outcome to the election. In relation to this aspect of the application, it would have been necessary for Mr Kelly to demonstrate that the result of any irregularity would have rendered the results of the election uncertain. However, there was no evidentiary material about this at all.
2. It follows that we also find that the application was vexatious, in the second sense referred to by Roden J, namely that, irrespective of the motive of the litigant, they were so obviously untenable or manifestly groundless as to be utterly hopeless. We reject Mr Kelly's submissions to the contrary. As to Mr Kelly's reliance on Kelly v Szatow, while we accept that in that instance the Tribunal found that the application was not vexatious, nevertheless, the Tribunal ordered Mr Kelly to pay Ms Szatow's costs.
3. It follows that we conclude that special circumstances are established. Special circumstances are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional: Mergerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11].
4. We do not find that the proceedings are an abuse of process for the reason advanced by Mr Smith. The relief that may be sought, if any, from the NSW Electoral Commission, is entirely different to the relief that may be sought pursuant to s 329 of the Act. Only the Tribunal (or the Supreme Court of NSW) can disqualify a person from holding civic office pursuant to that section.
5. Nevertheless, having found that there are special circumstances, Mr Kelly must pay Mr Smith's costs. However, we decline to order that those costs be paid on the indemnity basis. If Mr Smith intended to rely on CPD Holdings Pty Ltd as authority for the proposition that he is entitled to indemnity costs, we reject that submission. In CPD Holdings Pty Ltd, the Tribunal, having referred to Roden' J's remarks in Attorney General v Wentworth, did not find that there were special circumstances, and therefore did not award costs, let alone on the indemnity basis.
6. We note that Mr Kelly was not legally represented, and we think it sufficient that the costs be paid as agreed or as assessed.

Order 1. The applicant is to pay the respondent's costs, as agreed or as assessed.

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: 02 July 2018