Kelly v Szatow - [2020] NSWSC 407 - NSWSC 2019 case summary — Zoe

NSWNSWSC

Kelly v Szatow

[2020] NSWSC 407

Supreme Court of NSW|2019-07-16

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-07-16

Catchwords

(1916) 21 CLR 582 Briscoe-Hough v Tegg [2018] NSWCATAD 108 Burns v Corbett
Gaynor v Burns (2017) 96 NSWLR 247
(2003) 77 ALJR 1088 Gallo v Dawson (1990) HCA 30
241 CLR 390 Lee v New South Wales Crime Commission (2012) 224 A Crim R 94

Source

Original judgment source is linked above.

Catchwords

(1916) 21 CLR 582 Briscoe-Hough v Tegg [2018] NSWCATAD 108 Burns v CorbettGaynor v Burns (2017) 96 NSWLR 247(2003) 77 ALJR 1088 Gallo v Dawson (1990) HCA 30241 CLR 390 Lee v New South Wales Crime Commission (2012) 224 A Crim R 94(1996) 185 CLR 259 Minister for Immigration v SZVFW [2018] HCA 30357 ALR 408 Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320[2010] HCA 24 Rejfek v McElroy [1965] HCA 46

Judgment (56 paragraphs)

[1]

D 227 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088 Gallo v Dawson (1990) HCA 30; 93 ALR 479 Gaynor v Burns [2016] NSWCA 44 House v The King (1936) 55 CLR 499 Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5] Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 Jones v Sutton (No 2) [2005] NSWCA 203 Kelly v Smith [2018] NSWCATAD 122 Kelly v Szatow [2018] NSWCATOD 64 Kirk v Industrial Relations Commission of New South Wales [2010] HCA Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; 241 CLR 390 Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration v SZVFW [2018] HCA 30; 357 ALR 408 Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 Tomko v Palasty (No 2) [2007] NSWCA 369 at [55] Trust Company Ltd v Diamond Certification Laboratory of Australia Pty Ltd [2016] NSWCATAP 63 Uniform Civil Procedure Rules 2005 (NSW) Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Whall v Stamp [2019] NSWCA 163 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 Woodhouse v Thalis [2018] NSWCA 97 Texts Cited: Category: Procedural and other rulings Parties: Peter Kelly (Plaintiff) Cheryl Szatow (First Defendant) Martin Smith (Second Defendant) Donna Greenfield (Third Defendant) Jeff Pettett (Fourth Defendant) Representation: Counsel: PE King (Plaintiff) M Hall (Defendants)

[4]

Judgment

HER HONOUR: These proceedings concern an appeal in respect of five determinations made in the NSW Civil and Administrative Tribunal ("the Tribunal").
The plaintiff in the proceedings is Mr Peter Kelly. The first defendant is Ms Cheryl Szatow, the second defendant is Mr Martin Smith, the third defendant is Ms Donna Greenfield and the fourth defendant is Mr Jeff Pettett. All of the parties are Councillors on Ku-ring-ai Council.
There are three notices of motion before the Court for determination. (1) The first, filed by the plaintiff on 17 May 2019, seeks: 1. A stay of proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) in relation to the cost assessment applications in the following matters: 2. Martin Smith v Peter Kelly in Cost Assessment Case Number 2019/80649; 3. Cheryl Szatow v Peter Kelly in Cost Assessment Case Number 2019/75900; 4. Cheryl Szatow v Peter Kelly in Cost Assessment Case Number 2019/343149; and 5. Martin Smith v Peter Kelly in Cost Assessment Case Number 2019/343156; until the date of determination of the matters before this Court in these proceedings. 1. In the alternative, a stay at common law in the inherent jurisdiction of this Court for the matter referred in [1], until date of determination of the matters before this Court in these proceedings. My understanding is that the defendants will not enforce the decisions until after this judgment is handed down. As such, I do not need to deal with the stay application. 1. The second is the defendants' notice of motion filed 27 May 2019 seeking orders that: 1. The following interlocutory issues be determined in advance of any substantive hearing in the proceedings: (a) whether leave is required pursuant to r 50.3 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), and if so, whether it should be granted to the plaintiff to bring the proceedings given the time in which the proceedings were commenced; (b) whether leave is required pursuant to ss 82, 83 and/or cl 29, Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"), and if so, whether it should be granted to the plaintiff to bring the proceedings insofar as they concern appeals from the Tribunal in relation to costs; (c) whether leave is required pursuant to cl 29, Sch 5 of the CAT Act, and if so, whether it should be granted to the plaintiff to bring the proceedings insofar as they concern appeals from the Tribunal on questions other than law; (d) whether the proceedings should be dismissed pursuant to UCPR 13.4; and (e) further, or in the alternative, whether the proceedings should be dismissed as incompetent pursuant to UCPR 50.16A. 1. Leave to bring the proceedings out of time be refused. 2. Further or in the alternative, leave to bring proceedings in so far as they concern appeals from NCAT in relation to costs be refused. 3. Further or in the alternative, leave to bring the proceedings in so far as they concern appeals from NCAT on questions other than law be refused. 4. Further or in the alternative, the proceedings be dismissed pursuant to UCPR 13.4 and/or UCPR 50.16A.
The third is the plaintiff's amended notice of motion dated 4 June 2019 seeking an extension of time to file the appeal pursuant to UCPR 50.3(1)(c) and leave to amend his summons filed 27 March 2019.
The parties rely upon a joint court book.
At the outset of the hearing for these proceedings, counsel for the plaintiff agreed to deal with the orders sought in paras [2]-[5] of the defendant's notice of motion, and agreed that the orders sought in para [1] of the defendant's notion of motion should be dismissed (T 19-20). For reasons which I set out later in this judgment, it will not be necessary to consider order [5] of the defendant's notice of motion.
I will deal with the issues raised in the following order, noting that some of the considerations in relation to these issues overlap: 1. firstly, whether an extension of time should be granted to appeal; 2. secondly, whether leave should be granted to file the amended summons; and 3. thirdly, the appeal to this Court.

[6]

Chronology of decisions

On 25 October 2017, the plaintiff filed two applications in NCAT pursuant to s 440 of the Local Government Act 1993 (NSW). These applications were made against Ms Szatow (in NCAT proceedings 2017/343149) and Messrs Smith, Pettett and Ms Greenfield (in NCAT proceedings 2017/343156) (collectively, "the Local Government Proceedings"). These applications sought orders in relation to the regulation of a "code of conduct" complaint that the plaintiff had made against the respondents on 15 October 2017.
On the same day, 25 October 2017, the plaintiff filed another application in NCAT, this time pursuant to s 329 of the Local Government Act against Mr Smith (in NCAT proceedings 2017/343134) ("the Smith Proceedings"). This application alleged that a candidate information sheet completed by Mr Smith, asserting that he had no close association with a property developer, was false. It argued that as a result, the candidate information sheet caused an irregularity in the manner in which he had been elected and determined that he should therefore be disqualified from office. Specifically, the plaintiff alleged that Mr Smith had failed to disclose whether he was a property developer or close associate of a corporation that, or an individual who, was a property developer in accordance with reg 290 of the Local Government (General) Regulation 2005 (NSW) ("the Local Government Regulation").
On 21 February 2018, The Local Government Proceedings were heard concurrently and dismissed ("the Local Government Decision").
On 4 May 2018, the plaintiff was ordered to pay the defendants' costs of the Local Government Proceedings. This costs decision is Kelly v Szatow [2018] NSWCATOD 64 ("the Local Government Costs Decision").
The plaintiff subsequently appealed the Local Government Costs Decision to an Appeal Panel. On 24 July 2018, an Appeal Panel reviewed this decision. The appeal was dismissed, and costs were ordered against the plaintiff ("the Appeal Panel Decision"). Reasons were delivered ex tempore in relation to both the dismissal of the appeal and the question of costs.
On 4 May 2019 the Smith Proceedings were heard in the Tribunal. In a decision handed down on 5 June 2018, the Smith Proceedings were dismissed. Written reasons were delivered in Kelly v Smith [2018] NSWCATAD 122 ("the Smith Decision"). Costs were ordered against the plaintiff on 2 July 2018 by written reasons delivered in Kelly v Smith (No 2) [2018] NSWCATAD 141 ("the Smith Costs Decision").
I have set out a summary of the reasons provided for the relevant decisions here. In so doing, I acknowledge that I have largely adopted the defendants' submissions.

[11]

Whether an extension of time should be granted to appeal

On 4 June 2019, the plaintiff filed a notice of motion seeking an order granting an extension of time to file the appeals under UCPR 50.3(1)(c). The defendants opposed the granting of such an order.
Rule 50.3 of the UCPR provides guidelines concerning the time for appeal. It states: "50.3 Time for appeal (cf SCR Part 51A, rule 3) (1) A summons commencing an appeal must be filed - (a) within 28 days after the material date, or (b) if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or (c) within such further time as the higher court may allow. (2) An application for an extension of time under subr (1)(c) must be included in the summons commencing the appeal."
The material date in these proceedings is the date on which notice of the decision was provided to the plaintiff. The material dates of the Appeal Panel Decision, the Smith Decision and the Local Government Costs Decision are 24 July, 5 June and 4 May 2018 respectively.
The plaintiff filed his summons in relation to the Appeal Panel Decision 7 months out of time, his summons in relation to the Smith Decision 8 months out of time and his summons in relation to the Local Government Costs Decision 9 months out of time.
The principles that apply to an extension of time to appeal are well established. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff's case and consideration of whether the defendants would be prejudiced by a granting of the application: see Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty (No 2) [2007] NSWCA 369 at [55].
The plaintiff bears the onus of demonstrating that strict compliance with the timeframe would work an injustice upon him: see Gallo v Dawson (1990) HCA 30; 93 ALR 479 ("Gallo"). In Gallo, McHugh J stated at [2]: "[2] …The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: 'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.'"

[12]

Explanation for delay

The plaintiff's explanation for delay is set out in his affidavit of 27 May 2019 and can be summarised as follows.
In 2007, the plaintiff was diagnosed with Post Traumatic Stress Disorder.
In 2016, he was appointed by former Senator Brian Burston to the position of Parliamentary Advisor.
In 2017, he was elected a Councillor to Ku-Ring Gai council.
In March 2018, the plaintiff says that he was unfairly dismissed as a parliamentary advisor.
On 24 July 2018, the decisions in the Tribunal were determined in the Appeal Panel decision.
The 28 day period to appeal the decision of the Appeal Panel expired on 22 August 2018. The plaintiff says that he was "pre-occupied with the immediacy of the Unfair Dismissal impact which affected [his] personal relationship" [37].
Since April 2018, the plaintiff says that he has been "subjected to psychiatric assessment and medical treatment…resulting in loss of cohesion and attentiveness in making prompt application to this Court for full appeal of the decisions of the Tribunal" [38].
During August 2018, he says that he was "affected by a number of threatening telephone calls which were reported to the Police" [38].
In 2019, the plaintiff "applied for Comcare compensation which again was time delimited and consumed much of [his] time". The plaintiff claims that the claim "consumed entirely [his] immediate time and energies in order to comply with that statutory framework" [39].
The plaintiff continues to receive counselling from psychiatrist Dr Graham Altmann and psychologist Dr Kathi Pauncz.
The plaintiff explained that he "simply lost sight of the time and was unaware of [his] appeal rights against the primary decisions below in making this Application out of time" [40].
The plaintiff relied on a report of his psychologist, Kathi Pauncz, dated 8 June 2019 (Ex A). Ms Pauncz opined at [4]-[7]: "I understand Mr Kelly is seeking leave to file an Appeal in the Supreme Court regarding a matter which he says is of public interest, relating to his work as a Councillor on the Ku-ring-Gai Council and that a delay occurred in making that application between approximately the third week in September 2018 and early March 2019. In my view that delay of approximately five months can possibly be explained by his PTSD as it is common for people with PTSD to procrastinate and to avoid dealing with issues particularly when those issues are stressful. Mr Kelly said one of the coping mechanisms he has adopted is to avoid engaging with communication from official sources (e.g. he does not open letters) and he said he avoids anything where he might be required to commit himself to something even mildly significant."

[14]

The defendants' submissions

The defendants submitted that leave to appeal out of time should be refused for the following reasons: 1. The delay in question is significant and gross. 2. The plaintiff's evidence that attempts to explain the delay is wholly unsatisfactory. It is irrelevant whether he was aware of his appeal rights or not. The fact of the matter is that he chose to spend his time pursuing other litigation or compensation claims instead of directing his attention and obtaining legal advice with respect to the decisions he now seeks to appeal. On his own evidence, he did not seek legal advice until March 2019. There is no apparent reason why that could not have occurred in mid-2018, but for the plaintiff's own decision not to prioritise these matters. Further, the opinion expressed by his treating psychologist Ms Pauncz, going to the effect his mental health may have had in bringing this proceeding is of no probative weight. It sets the bar at nought. If the "explanation" provided by the plaintiff is found to warrant the granting of leave it will have the effect of rendering the time limitations imposed by the Court's rules as meaningless for future matters. 3. Leave should be refused when regard is had to the history of the proceedings and the plaintiff's conduct before the Tribunal. This includes findings that the Local Government Proceedings lacked merit and that their continuation was an abuse of process. It similarly includes findings that the Smith Proceedings were vexatious in the sense that they were manifestly groundless and utterly hopeless. It is significant that neither the summons nor the proposed summons seeks to appeal those particular findings. Further, the plaintiff conceded that the Tribunal lacked the jurisdiction to determine the Local Government Proceedings. He also acknowledged in the Smith Proceedings during cross examination that he had no evidence contrary to the respondent's evidence attesting to the accuracy of the Candidate Information Sheet. To the extent that these proceedings seek to appeal the Local Government Decision and Smith Decision they therefore constitute an attempt by the litigant to resile from concessions unequivocally and clearly made. There is no evidence as to why the plaintiff should be allowed to resile from those concessions. Such conduct is a significant reason why leave to appeal out of time should be refused. 4. The nature of the litigation in question is not unique, special, or a matter of public importance warranting the grant of leave. This is particularly so in the cases with the Local Government Costs Decision, Smith Costs Decision and Appeal Panel Decision. There, the nature of the litigation relates solely to questions of costs dependant on the particular chronology and course of conduct between the parties. As stated in the Appeal Panel Decision, they are "orthodox decisions" correctly arrived at in the usual course. The Smith Decision and Local Government Decision do not raise any question of principle or a matter of public interest warranting the grant of leave. The Local Government Decision is a decision by the Tribunal stating it lacks jurisdiction, when that fact was "common ground" between the parties and no application has been made by the plaintiff to resile from that concession. It would be contrary to public interest to grant leave in such circumstances. The Smith Decision similarly raises no question of principle, decided as it was principally on the basis of a factual finding (that there was no evidence at all to establish the Candidate Information Sheet was incorrect). 5. The prospects can only be said to be poor. This is another reason why leave to appeal out of time should be refused. It is concerning that despite the lengthy passage of time, retention of representation, and formulation of an amended summons, the plaintiff can still not clearly identify questions of law or fact he seeks to appeal from (or any questions of law that would have utility). 6. If leave is granted it will cause significant prejudice to the defendants. The time limitations in bringing an appeal are, in part, to safeguard defendants from the time and expense inherent in protracted litigation. The defendants will be exposed to such expense, with little hope of recourse from a plaintiff who openly acknowledges he is in a precarious financial position. It is also not proportionate or appropriate to grant leave in these proceedings.

[15]

Consideration

The appeal was lodged seven months out of time. The plaintiff's explanation is that he suffers from PTSD. His psychologist opines that the delay of approximately five months "can possibly" be explained by his PTSD, as it is common for people with PTSD to procrastinate and avoid dealing with issues, particularly when those issues are stressful. Nevertheless, in 2018 after the NCAT decisions were handed down, the plaintiff says that he was able to deal with a Comcare claim which consumed his immediate time and energy.
The plaintiff says that he lost track of time and was unaware of his appeal rights in relation to the primary decisions of NCAT. However, he did not seek any advice as to his appeal rights in these proceedings until March 2019. It therefore appears that the plaintiff simply elected to prioritise pursuing his employment compensation claim, in respect of which he was able to comply with relevant time frames.
So far as the plaintiff's prospects of success are concerned, the Tribunal has made findings that the Local Government Proceedings lacked merit and that their continuation was an abuse of process. The Tribunal similarly found that the Smith Proceedings were vexatious in the sense of being manifestly groundless and utterly hopeless. At the Tribunal, the plaintiff conceded that it lacked jurisdiction to determine the Local Government Proceedings. He also acknowledged in the Smith Proceedings that he possessed no evidence that was contrary to the respondent's evidence that supported the accuracy of the Candidate Information Sheet. To the extent that these proceedings seek to appeal the Local Government Decision and the Smith Decision, the plaintiff attempts to resile from concessions he made at the hearing. Taking these matters into account, the prospects of success are poor.
While it may be possible that ss 329 and 440 of the Local Government Act concern matters of public importance, the issues raised in this appeal do not, as the plaintiff is bound by the way he ran the litigation in the Tribunal.
For these reasons, and in the exercise of my discretion, I refuse the plaintiff's application to extend time to appeal.
In the event that I am wrong, I will turn to consider the plaintiff's application for leave to file the amended summons.

[18]

The plaintiff's amended notice of motion filed 4 June 2019

On 4 June 2019, the plaintiff filed an amended notice of motion seeking leave to amend the summons to expand his appeal to the Local Government Decision, the Local Government Costs Decision, the Appeal Panel Decision, the Smith Decision and the Smith Costs Decision.
In lieu of the orders sought in the summons filed 27 March 2019, the plaintiff by the proposed amended summons sought a number of orders. They are: "1. Leave pursuant to UCPR Rule 6.19, in circumstance where the proceedings in this Court involve common questions of law and fact with respect to each NCAT decision challenged herin and in respect of each Defendant before NCAT and/or arise out of the same factual matrix, that the Defendants each be joined in this originating process. 2. Leave to appeal from the whole of [the Local Government Decision, Local Government Costs Decision, Appeal Panel Decision, Smith Decision and Smith Costs Decision] with respect to the following questions not being questions of law and pursuant to clause 29(4)(b) of Part 6, Schedule 5 of [the CAT Act], namely whether or not there is evidence with respect to each of the Defendants that demonstrates on the balance of probabilities facts consistent with a contravention of Local Government Act 1993 s 329 as alleged by the Plaintiff in NCAT with respect to the matters herein. 3. Extension of time to appeal under UCPR Rule 50.3(1)(c) to the filing of the Summons herein on 27 3 2019. 4. Orders pursuant to clause 29(2)(b), 4(b), (7) and (8) of Part 6, Schedule 5 of [the CAT Act]. 5. Appeal allowed. 6. Order that each determination of NCAT in respect of ach NCAT proceeding specified herein be set aside or reviewed and/or quashed under clause 29(8), Part 6, Schedule 5 of [the CAT Act], and that another decision be substituted for such determination namely that sought against each Defendant in NCAT or that each proceeding be remitted to NCAT for determination according to law. …"
In lieu of the statement of grounds filed 4 January 2019, the plaintiff outlined the grounds on which he sought to appeal the Tribunal's decisions as follows: "1. [rule 50.12(3)(a)] The appeal relates to the whole of each decision challenged herein made in the court below. 2. [rule 50.12(3)(b)] In place of the decision below (as specified in Details of Appeal paragraph above) the Plaintiff seeks in each case an order setting aside the dismissal of each complaint of the Plaintiff by NCAT and of each adverse costs order and the relisting of each complaint before NCAT for determination according to law consequential upon the decision of this Honourable Court as sought herein or alternatively that another decision be substituted for each such determination namely that sought by the Plaintiff against each Defendant in NCAT and/or that this proceeding be remitted to NCAT for determination according to law. 3. [rule 50.4(2)] The grounds relied on in support of the appeal are: a. each decision misconstrued or misapplied Local Government Act 1993 s 329; b. each decision misconstrued [CAT Act] schedules 3 and 5; c. NCAT erred in admitting evidence which was not admissible under CAT Act; d. NCAT erred in holding that there was no evidence that the Candidate Information Sheet was incorrect in any respect or that the result of the alleged irregularity would have rendered the results of the election uncertain; e. NCAT failed to exercise natural justice and/or failed to proceed according to law by not making available to the Plaintiff as an unrepresented person legal representation or in giving directions to that effect or in failing to inform and assist him to the fullest extent appropriate the issues and evidence; f. NCAT erred in law in applying tests relevant to disputed returns and in holding that 'it was necessary for the Plaintiff to show the irregularity would have resulted in a different outcome'; h. NCAT erred in law in construing [the CAT Act] in applying strict common law rules of evidence and/or in finding that there was 'no evidence to show the irregularity would have resulted in a different outcome'; i. NCAT constructively failed to exercise its jurisdiction with respect to the matter or matters before it; j. Further or alternatively each decision was made in excess of jurisdiction; k. NCAT erred in failing to give any or sufficient reasons for its decision(s) of 21 2019, 5 6 2018 and 24 7 2018; l. Each costs decision misconstrued or misapplied [CAT Act] s 60(3) with respect to the issue of exceptional circumstances."
In accordance with UCPR 50.12(4), the plaintiff further stated: "a. [rule 50.12(4)(a)] The nature of the case arises from the Plaintiff's contention that each cause of action of the Defendants before nCAT and the subject of this Summons is in respect of or arises out of the same transaction or series of transactions, or gives rise to a common question of law or of fact namely the pecuniary or other interest of councillors on the Hornsby Council and whether or not s 329 Local Government Act 1993 were breached in respect of such interest(s) and whether or not NCAT had jurisdiction and power to address those questions and erred in not doing so and/or in ordering costs against the Plaintiff for bring such complaint(s) [sic]. b. [rule 50.12(4)(b)] The reasons why leave should be given are that NCAT erred in construing and applying the statutory tests as to whether s 329 LGA was breached by each Defendant in his or her capacity as a councillor, and incorrectly had regard to disputed common law tests as to disputed returns rather than the statutory tests under the LGA framework, and erred in construing and applying the statutory discretions and powers as to costs under CAT Act s 60 and that integrity should be done and should be seen to be done in the conduct of local government as raised by the Plaintiff herein is in the public interest. c. [rule 50.12(4)(c)] The reasons why time to apply for leave should be extended are that: i. the Plaintiff was subjected to a fierce and disputed unfair dismissal claim placing him under severe financial [sic] at the time the proceedings arose and which made it difficult for him to focus on the present dispute; ii. the Plaintiff has been diagnosed with psychiatric trauma and depression which affected him during the period; iii. the Plaintiff was a first time councillor and was unaware of his rights to complain of his mis-treatment as a councillor and maladministration by the Council; iv. NCAT erred in construing and applying the statutory tests as to whether s 329 LGA was breached by each Defendant in his or her capacity as a councillor and as to costs; v. The interests of justice including the public interest."
The proposed amended summons is the plaintiff's first attempt to seek an appeal in respect of the Local Government Decision and the Smith Costs Decision. The appeals in respect of these two decisions have been brought over 15 and 10 months out of time, respectively.

[23]

The relevant provisions of the CAT Act

Sections 82 and 83 of the CAT Act govern appeals against appealable decisions. They read: "82 Interpretation (1) Each of the following kinds of decisions of the Tribunal is an appealable decision of the Tribunal for the purposes of this Division: (a) any decision made by an Appeal Panel in an internal appeal, (b) any decision made by the Tribunal in an external appeal, … (4) A reference to the Tribunal in another provision of this Division is to be read as a reference to an Appeal Panel if the appealable decision of the Tribunal concerned is a decision of an Appeal Panel. … 83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. … (3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following: (a) an order affirming, varying or setting aside the decision of the Tribunal, (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.
The Appeal Panel Decision is an appealable decision under s 82(1)(a). As such, s 83(1) of the CAT Act provides that the plaintiff must seek leave to appeal the Appeal Panel Decision and may seek to appeal only in respect of questions of law.
The Local Government Decision, Local Government Costs Decision, Smith Decision and Smith Costs Decision are not appealable decisions under s 82 of the CAT Act. As such, the plaintiff appears to seek an appeal in relation to these decisions pursuant to cl 29, Sch 5 of the CAT Act. It relevantly reads: "29 Certain profession decisions to be appealed directly to Supreme Court or Land and Environment Court (1) Profession decisions not internally appealable Despite section 32 of this Act, each of the following Division decisions (a profession decision) is not an internally appealable decision for the purposes of an internal appeal: … (f) a decision for the purposes of the Local Government Act 1993 other than: (i) a decision for the purposes of section 469 of that Act not to conduct proceedings into a complaint, or (ii) a decision for the purposes of section 470 of that Act to determine proceedings into a complaint without a hearing, … (2) Right to appeal to Supreme Court or Land and Environment Court However, a party to proceedings in which a profession decision is made may appeal against the decision in accordance with this clause to: (a) in the case of an order for the purposes of Division 3 of Part 5 or Division 4 of Part 7 of the Aboriginal Land Rights Act 1983 declaring a vacancy in an office - the Land and Environment Court, and (b) in the case of any other decision - the Supreme Court. … (4) Basis or grounds for appeal an appeal to a court under this clause: (a) in the case of an appeal against a decision for the purposes of the Legal Profession Uniform Law (NSW) - is an appeal to which section 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing rather than a new (de novo) hearing, and (b) in the case of any other appeal (a non-lawyer appeal) - may be made as of right on any question of law, or with the leave of the court, on any other grounds. … (6) Leave required in certain cases despite subclauses (2)-(5), an appeal does not lie to a court under this clause against any of the following decisions except by leave of the court: (a) an interlocutory decision of the Tribunal, (b) a decision made with the consent of the parties, (c) a decision as to costs. (7) Non-lawyer appeals the court in a non-lawyer appeal may: (a) decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. (8) In determining a non-lawyer appeal, the court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the decision under appeal to be confirmed, affirmed or varied, (b) the decision under appeal to be quashed or set aside, (c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (d) the whole or any part of the case to be reconsidered by the Tribunal at directions of the court. …"
The Local Government Decision, Local Government Costs Decision, Appeal Panel Decision, Smith Decision and Smith Costs Decision are "profession decisions" under cl 29(1)(f), being decisions for the purposes of the Local Government Act. The Appeal Panel Decision is also a "non-lawyer appeal" under cl 29(4)(b).
It would appear that the effect of these provisions is as follows. Pursuant to cl 29(1)(b), Sch 5 of the CAT Act, the plaintiff may appeal as of right on a question of law, or with the leave of this Court on other grounds, in respect of the Local Government Decision and the Smith Decision. Pursuant to cl 29(6)(c), Sch 5 the CAT Act, the plaintiff may seek leave to appeal on a question of law in respect of the Local Government Costs Decision and Smith Costs Decision. Finally, pursuant to either cl 29(6)(c), Sch 5 or s 83(1) of the CAT Act, the plaintiff may seek leave to appeal on a question of law in respect of the Appeal Panel Decision.
Because of the effect of these provisions, in addition to the framework of the plaintiff's grounds of appeal, it is convenient that I address the issues raised in paras [3] and [4] of the defendants' notice of motion as they arise in the plaintiff's grounds of appeal and proposed grounds of appeal.

[27]

Principles governing leave to appeal

Two cases which set out the principles governing leave to appeal are Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 ("Das") and Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 ("Lee").
In Das, the Court of Appeal set out the principles to be considered in deciding whether leave to appeal should be granted. At [32]-[33], [35], Basten JA stated: "[32] The principles governing cases such as these have recently been restated in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. As Campbell JA noted (with the agreement of Young JA) at [22]: 'It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute.' [33] In Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Campbell JA, with the agreement of Young and Meagher JJA, expanded on his summary of Carolan, noting that Kirby P had recognised 'that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable': at [46]. … [35] In Coulter v The Queen [1988] HCA 3; 164 CLR 350, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority noted that a leave requirement was a preliminary procedure 'recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention': at 356 (Mason CJ, Wilson and Brennan JJ). That statement is clearly applicable to civil, as well as criminal, appellate jurisdiction."
Similarly, in Lee, Bathurst CJ at [12] outlined the principles relevant to the granting of leave as follows: "[12] The principles upon which leave to appeal is granted are well established. Ordinarily it is only appropriate to grant leave concerning matters that involve issues of principle, questions of general public importance or where it is reasonably clear there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34]." See also Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 at [19]-[21].
Where, as here, an appeal can only be on a question of law, then the absence of identifiable questions of law will obviously be fatal to a leave application.
An appeal on a question of law is not merely a qualifying condition to the right of appeal. Rather, the question of law must comprise the subject matter of the appeal: see Davis v NSW Land and Housing Corporation [2016] NSWCA 325 per McColl JA at [77]. Questions of law are not to be distilled from the grounds of appeal itself, but should be clearly identified: see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 per French CJ, Gummow and Bell JJ at [21]. Questions of law should not simply be statements to the effect that the Tribunal made legal errors, but should state questions of law to support the orders sought on appeal: see Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; (2003) 202 ALR 450 per Branson J at [47].
Further, s 60 of the Civil Procedure Act dictates that the practice and procedure of this Court should be implemented with the object of resolving the dispute in question proportionately with the importance and complexity of its subject-matter. Consequently, where the costs of the trial are disproportionate to the amount in dispute, the incurring of additional costs, for a potentially uncertain return, will be a factor weighing heavily against a grant of leave. That principle must apply with even more force where there has already been a trial and a first appeal.
Section 58 of the Civil Procedure Act requires this Court to act in accordance with the dictates of justice and applies in respect of an application for leave. One of the factors to be taken into account pursuant to s 58 is "the degree of injustice that would be stifled by the respective parties as a consequence of any order or direction": s 58(2)(b)(vi). That provision recognises that questions of injustice are relative. The delay and cost of further litigation constitutes a form of injustice to the successful party below, whatever the outcome of the appellate process.
With these principles in mind, in relation to the decisions which require leave, I will consider whether the questions raised in the plaintiff's grounds of appeal are more than merely arguable.

[30]

The plaintiff's submissions

The plaintiff submitted that in the Smith Decision, the Tribunal considered the relationship between Cr Smith and a developer in circumstances where it appeared that Cr Smith held a substantial interest in a development company, but where he contended that he had no voting rights. Councillor Smith did not produce the company records to demonstrate that he didn't have voting rights, or to demonstrate that he had no influence over the company's affairs.
At the hearing of these proceedings, the plaintiff submitted that in the Smith Decision, the Tribunal erred in stating at par 25: "[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."
The plaintiff submitted that this statement was clearly incorrect. At par 11 of its reasons, the Tribunal set out Cr Kelly's submissions as follows: "[11] Mr Kelly explains, in what we consider to be a submission, that: [7] It is understood that investigation in mentioned in par [6] is to determine whether the respondent is an associate of a property developer as articulated in Regulation 290 of the Local Government (General) Regulations 2005 in that he controls at least 20% shares of DP Smith (Homes) Pty Ltd."
The plaintiff argued that he had made submissions to the Tribunal in relation to Mr Smith's father's company, of which Mr Smith admitted to owning at least 20% shares, as opposed to the two companies which Mr Smith had said weren't property development companies.
The plaintiff submitted that in dismissing or refusing to examine the matter, NCAT referred in error to the principle that it was "necessary for Mr Kelly to demonstrate that the result of any irregularity would have rendered the results of the election uncertain", where the question related to the qualification and standing of Crs Szatow and Smith in the candidate disclosure, which reasonably may have had that result, rather than any irregularity in the conduct or mechanics of the poll by the returning officer: Chanter v Blackwood [No 1] (1904) 1 CLR 39; [1904] HCA 2 ("Blackwood") per Griffith CJ.
According to the plaintiff, after the Electoral Commission conducted an investigation into the issues in this case at his request, it recommended to him, after withholding its investigation report, that he proceed before NCAT with his concerns. According to the plaintiff, he informed NCAT of this course and proceeded under s 329 of the Local Government Act. The plaintiff submitted that this was a reasonable course to take, and not a basis for the imposition of a costs order against him.

[32]

Consideration

Section 329 of the CAT Act reads: "329 Can the holder of a civic office be dismissed? (1) Any person may apply to the Civil and Administrative Tribunal for an order that a person be dismissed from civic office. (2) On any such application, the Tribunal may order the dismissal of a person from civic office-- (a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or (b) if the person is disqualified from holding civic office. …"
The plaintiff brought his application to the Tribunal in the Smith Proceedings under s 329 of the CAT Act, alleging that incorrect disclosures made on Mr Smith's Candidate Information Sheet constituted an "irregularity" under s 329(1)(a).
The Tribunal's reasons for dismissing the plaintiff's application in the Smith Decision are at [25]-[26]: "[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."
The first ground of appeal seeks to challenge the Tribunal's finding of fact at [25] of its decision that there was no evidence on which it could find that the information in the Candidate Information Sheet was incorrect.
The Tribunal's summary of the available evidence is set out at [13]-[18] of its decision. At [13], the Tribunal addressed the evidence of Mr Kelly, including that his ASIC searches, "scouring" of the internet, and other efforts had produced no evidence to contradict the affidavit of Mr Smith that he was not a property developer. At [15]-[18], the Tribunal outlined the evidence given by Mr Smith that he was not a property developer, or a close associate of a corporation that is a property developer within the meaning of reg 290 of the Local Government Regulations. The Tribunal noted at [16] that the onus is not on the defendant, but on the plaintiff to prove his case. Nevertheless, the defendant's evidence was not contradicted by the plaintiff.
The Tribunal's finding of fact at [25] was supported by evidence and reasons, and is not subject to appeal in this Court. For these reasons, the Tribunal did not err. Grounds 3(c) and (d) fail.
Grounds 3(a), (f) and (g), although phrased in different ways, further allege that the Tribunal erred in the test it set out at [26] of its decision, where the Tribunal stated that to succeed in his application, the plaintiff would have to have demonstrated that "the result of any irregularity would have rendered the results of the election uncertain." Counsel for the plaintiff has argued that the Tribunal's test at [26] sets too high a bar for the plaintiff, who should only have been required to demonstrate that the alleged incorrect information "could have made a difference" to the election.
The Tribunal's reasons in relation to its finding at [26] appear at [19]-[22] of its decision. At [19], the Tribunal set out s 329 of the Local Government Act as reproduced above. At [20]-[22], the Tribunal stated: "[20] Mr Kelly relies only s 329(2)(a), that is he claims that there has been an "irregularity" in the manner in which Mr Smith was elected. The alleged irregularity claimed is the inaccurate or incorrect information in Mr Smith's Candidate Information Sheet, 'thereby creating the irregularity consistent with the legislative condition in s 329(2)(a)'. [21] As was recently stated in Briscoe-Hough v Tegg [2018] NSWCATAD 108 at [47] and following, a relevant 'irregularity' for the purposes of s 329 of the Local Government Act 1993 may arise at any point during the electoral process. For instance, see Bourne v Murphy [1996] NSWCA 59, in which the alleged irregularity was the decision of the returning officer to declare certain votes to be invalid and therefore not count them. [22] However, the authorities establish that there must be a nexus between the alleged irregularity and the election of the official in relation to whom the Tribunal has received an application for removal under s 329. The need for this nexus is clear from the words of s 329(2)(a), which provide that the Tribunal may order the dismissal of a person from civic office 'if there has been any irregularity in the manner in which the person has been elected or appointed to that office'. As Beazley JA stated in Bourne v Murphy at [358]: … it is not any irregularity which suffices for the purpose of s 329. Rather, it must be an irregularity such that the result of the election is thereby uncertain: see Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582 (my emphasis)."
The Tribunal went on to state at [23]-[24] that the onus of proof rests with the plaintiff, on the balance of probabilities: see Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATOD 137 at [18]; Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at [10]-[11].
At the hearing of these proceedings in this Court, counsel for the plaintiff referred to Blackwood at 58-59 per Griffith CJ, where his Honour stated: "I take it that the law is correctly laid down in this passage in Woodward v Sarsons (1875) L.R., 10 C.P., p 743, where Lord Coleridge, C.J., says, in delivering the judgment of the Court: - 'As to the first point, we are of the opinion that the true statement is that an election is to be declared void by the Common Law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be satisfied, i.e. that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or to be prevented from voting by want of the machinery necessary for so voting, as by polling stations being demolished, or not open, or by other of the means of voting according to law not being supplied, or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declarations of numbers by a Returning Officer, or by other such acts or mishaps. And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the Common Law Parliament.' I think that statement of the law is applicable to any election in respect of which a judicial tribunal is called upon to say whether there had been a due election or not, and I adopt it as laying down the law applicable to this case…" (my emphasis)
Counsel for the plaintiff submitted that in these proceedings, which involve an alleged failure by the candidate to disclose a relationship in accordance with regulations, requiring the plaintiff to prove that the alleged irregularity affected the election would require breaching the secrecy of the ballot (T 40.43-46). For those reasons, the Court in Blackwood stated that all that the plaintiff must show is that the alleged irregularity "could have made a difference" to the election (T 40.48).
It is my view that the plaintiff's submissions are misguided. Firstly, the authorities to which the Tribunal refers in its reasons set out a clear test, which is reflected in the Tribunal's determination at [26]. In Bourne v Murphy [1996] NSWCA 59, to which the Tribunal refers in the Smith decision at [22], Beazley JA stated at 358 that "it is not any irregularity which suffices for the purpose of s 329 [of the Local Government Act]. Rather, it must be an irregularity such that the result of the election is thereby uncertain." It is this test to which the Tribunal referred at [26], where it held that the plaintiff bore the onus of proof in his application.
Secondly, the requirement in Blackwood is that there be reasonable ground to believe that the majority of electors may have been prevented from electing their preferred candidate. This is not the same as the plaintiff's submission that he only be required to prove that the alleged breach of regulations "could have made a difference" to the election. The Tribunal's phrasing of "would have rendered the results of the election uncertain" seems to fit the plaintiff's statement of the test in any regard.
Finally, and most importantly, the test set out in Blackwood is one which is met by the first part of the Tribunal's decision, which is that there was no evidence that the information was incorrect. That is to say, the Tribunal had found that there was no reasonable ground to believe that the majority of electors may have been prevented from electing their preferred candidate. For these reasons, it is my view that the Tribunal did not err. Grounds 3(a), (d), (f) and (g) also fail.

[34]

The plaintiff's submissions and further written submissions as to jurisdiction and costs

The plaintiff submitted that the Tribunal erred in making an order as to costs in circumstances where it lacked authority to hear the matter. Counsel for the plaintiff referred to Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 ("Gaynor") as authority for the proposition that where NCAT lacks jurisdiction to hear a case, it also lacks jurisdiction to make an order as to the costs of the proceedings. In Gaynor, Leeming JA at [106] stated: "In those circumstances, it is appropriate to accede to Mr Gaynor's submission, and simply dismiss the appeal. It will be clear from the foregoing that the costs order made against Mr Gaynor by NCAT cannot be enforced."
The plaintiff submitted that NCAT never issued a determination with reasons nor published orders. He referred to Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; 241 CLR 390 and Minister for Immigration v SZVFW [2018] HCA 30; 357 ALR 408 as cases which outline the Court's role in exercising review of such cases. The plaintiff also referred to Gaynor v Burns [2016] NSWCA 44 ("Burns") per McColl JA and Emmett AJA, where the Court of Appeal granted leave to appeal on costs as part of an appeal from an NCAT appeal panel.
On 3 September 2019, after the hearing of these proceedings in this Court, the case of Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134 ("Cornish") was handed down. The plaintiff sought to address the Court in respect of the relevance of Cornish to the issue of jurisdiction in these proceedings. By further written submissions, the plaintiff submitted that similarly to Cornish, the relevant order sought by the plaintiff in these proceedings in his amended summons pursuant to cll 29(2)(b), (4)(b), (7) and (8), Sch 5 of the CAT Act and/or the Court's powers under s 69 of the Supreme Court Act was that each determination be set aside or reviewed and/or quashed.
The plaintiff submitted that in Cornish, the Court held that if the underlying decision for review in NCAT is void, NCAT is deprived of jurisdiction. Without jurisdiction, NCAT is unable in such cases to make costs orders. In Cornish, the Council and then NCAT purported to rely on s 440J and/or 440N for its powers, which were non-existent, resulting in an absence of NCAT's jurisdiction to determine the matter and requiring this Court to make an order quashing the decision with costs.
The plaintiff reiterated his submission that in Gaynor, the Court of Appeal determined that NCAT had no power to make a costs order in absence of jurisdiction in a particular matter. The Court of Appeal granted leave to appeal from the costs order made and then declared the order void, along with the proceedings in the final hearing.
The plaintiff submitted that as Basten JA made clear in Cornish, NCAT has no jurisdiction to consider or make such orders, and that this Court should properly exercise its supervisory jurisdiction under Kirk v Industrial Relations Commission of New South Wales [2010] HCA to set aside the Tribunal's wrongful decision.
The plaintiff conceded that in the case of the Smith Costs Decision, the issue is more complicated. Councillor Kelly brought his claim under s 329 of the Local Government Act. The plaintiff submitted that the unreasonableness of the application as to costs in the Smith Proceedings under s 60(2) of the CAT Act is that the Electoral Commission recommended to Cr Kelly that he take the matter to NCAT. However, the plaintiff submitted that he was not responsible for what occurred in NCAT in relation to costs, as he appeared for himself.
The plaintiff submitted that the issue of jurisdiction in relation to the adverse costs order made against him is as follows. The Tribunal sat in the wrong division, being the Administrative and Equal Opportunity Division instead of the Occupational Division. As such, the plaintiff submitted that the Tribunal acted without jurisdiction: see cl 4, Sch 5 of the CAT Act.
There are special provisions in the constitution of the Tribunal and in respect of the panel qualifications for each division under different statutes. These differentiate the Occupations Division from the Administrative and Equal Opportunity Division where the Tribunal sat in error. The plaintiff submitted that cl 16(2), Sch 3 of the CAT Act provides that "[t]he functions of the Tribunal in relation to enabling legislation that are allocated to a Division of the Tribunal are to be exercised in that Division." The plaintiff submitted that such a jurisdictional restriction was not relevant to this case.
Accordingly, the plaintiff submitted that if the Court does not accept his argument that the wrong test under s 329 was adopted, the costs order should not have been made because the Tribunal acted without jurisdiction.

[35]

The defendants' submissions

The defendants submitted that the Local Government Decision did not involve any question of jurisdiction. The Tribunal simply applied established principles in its finding that special circumstances merited an award for costs. Further, the defendants submit that the two sections in the CAT Act, which the plaintiff referred to as a basis for this ground of appeal, are not relevant to the Local Government Costs Decision. This ground is therefore of no application to that decision and is bound to fail.
Secondly, the defendants submitted that the Appeal Panel Decision proceeded on the basis that the Tribunal lacked jurisdiction, but in any event would not have granted leave to appeal and considered no discretion had miscarried. That is, both possibilities of jurisdiction are covered by the ratio of the decision. The argument that the Tribunal did not have jurisdiction to decide that it did not have jurisdiction is difficult to comprehend. It is impossible to fathom how such an argument could succeed. In any event, even if such an argument was somehow successful, as no ground is brought in the summons appealing the findings that formed the secondary part of the Tribunal's ratio, the appeal from this proceeding is futile.
The defendants submitted that Cornish is not authority for the proposition proposed, because Cornish does not concern any question of costs or jurisdiction to make costs orders with respect to a void decision of NCAT. Costs were only referred to in the decision at [3] and [94] in the sense that the unsuccessful party was ordered to pay the costs of the successful party. The defendants submitted that Cornish really concerns whether a particular decision of NCAT was without jurisdiction, or erroneously involved NCAT making a decision limiting its jurisdiction: see [17]-[18]. These jurisdictional issues were specific to the decision in Cornish, and not analogous to these proceedings.
Further, the defendants submitted that the plaintiff has incorrectly stated that in Cornish, an absence of jurisdiction resulted in the Court making "an order quashing the decision with costs". Nowhere in Cornish did the Court quash the previous decision insofar as it related to costs. On the contrary, the orders at [94] state that the Court "Set aside the order of the Civil and Administrative Tribunal made on 12 July 2018". The defendants submitted that the underlying decision of Cornish at [16] states that the question of costs was reserved, and the only order made was that "The respondent's right to payment is suspended for a period of three months from the date of these reasons". As this was the only order made, this was the only order set aside on appeal in Cornish. This explains the reference that is made to "consequential relief" in Cornish at [92].

[36]

Consideration

Section 60 of the CAT Act relates to costs. It reads: "60 Costs (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: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (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, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (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. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (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."
Section 29 of the CAT Act sets out the Tribunal's jurisdiction. It relevantly reads: "29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if: (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. … (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. …"
Section 4 of the CAT Act relevantly defines: "(1) In this Act: … ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings."
Under s 60(2) of the CAT Act, the Tribunal may award costs in relation to "proceedings before it" where it is satisfied that special circumstances warrant an award of costs. Section 60(5) states that "costs" include the costs of, or incidental to, the proceedings in the Tribunal. Although s 60 of the CAT Act does not refer to circumstances in which the Tribunal lacks jurisdiction to decide the case before it, s 29(2)(a) states that the Tribunal has general jurisdiction to make "ancillary decisions" in its proceedings, which are defined under s 4 to include decisions concerning the awarding of costs.
At the hearing of these proceedings in this Court, counsel for the defendants referred to Trust Company Ltd v Diamond Certification Laboratory of Australia Pty Ltd [2016] NSWCATAP 63 ("Diamond"). In Diamond, an NCAT Appeal Panel addressed the effect of s 60 of the CAT Act as follows: "[27] The question is whether, in the circumstances of a proceeding being dismissed for want of jurisdiction, NCAT has a broad power to award costs. Significantly NCAT is invested with a broad power to award costs: s 60(2) of the Civil and Administrative Tribunal Act provides: The Tribunal may award costs in relation to proceedings before it only if it is satisfied there are special circumstances warranting an award of costs. [28] It should be observed that the power to award such costs arises 'in relation to proceedings before it'. Both the COM proceedings and the Appeal proceedings were proceedings before the Tribunal. Further, it should be observed that the general power to award costs provided by s 60(2) expanded by the provisions of s 60(5) which provides: In this section: Costs includes: (a)the costs of, or incidental to, proceedings in the Tribunal, and (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. [29] Section 60(4)(a) provides that if costs are to be awarded by the Tribunal it may 'determine by whom and to what extent costs are to be paid'. [30] The costs power granted to the Tribunal is accordingly broad, and the Appeal Panel is satisfied the power to award costs is not dependent upon whether or not the Tribunal finds that it has jurisdiction to grant any relief: rather, the power arises because proceedings have been brought before the Tribunal. This fact of itself is the criteria upon which court is empowered to make an order for costs. For further consideration see Doula Spirit Pty Ltd v Andrew Argyrou [2014] NSWCATCD 227."
In Doula Spirit Pty Ltd v Andrew Argyrou [2014] NSWCATCD 227 ("Doula"), the case to which the Appeal Panel in Diamond referred at [30], the Appeal Panel determined that a finding that the Tribunal lacked jurisdiction to hear a claim may be relevant to determining whether to award costs, as such proceedings may for that reason have been "misconceived or lacking in substance" under s 60(3)(e) of the CAT Act.
When presented with the defendants' submissions in relation to ss 60, 29 and 4 of the CAT Act at the hearing of these proceedings, counsel for the plaintiff referred to the cases of Burns and Gaynor. As the plaintiff made substantial submissions in relation to these decisions, it is necessary to consider the cases in some detail.
The proceedings which gave rise to the decision in Gaynor involved the question of whether the Tribunal had jurisdiction to hear a claim brought under the Anti-Discrimination Act 1977 (NSW) against Mr Gaynor, a non-resident of NSW. The Tribunal at first instance had determined it had jurisdiction, and made an adverse order against him as to costs. On appeal to the NSW Court of Appeal in Gaynor, Mr Gaynor was successful in reversing the Tribunal's decision as to jurisdiction. In respect of the decision, Leeming JA at [105] stated: "[105] The third originating process is an appeal from an adverse order as to costs made by NCAT against Mr Gaynor. After leave had been granted by this Court, the State of New South Wales intervened in the proceedings pending in NCAT. No party nor intervener suggested that that altered the fact that the dispute remained one answering the description in s 75(iv). Mr Gaynor submitted that it would be unnecessary to decide the appeal if the primary argument succeeded (transcript, 30 November 2016, p 3)."
At [106], Leeming JA stated that in those circumstances, it was appropriate to accede to Mr Gaynor's submission, and simply dismiss the appeal. It was established that the costs order made against Mr Gaynor by NCAT could not be enforced.
In Gaynor at [105]-[106], Leeming JA dismissed the respondent's concurrent appeal in relation to costs, with the result being that the original costs order against Mr Gaynor in respect of the overturned decision could not be enforced.
At [105] of his decision, Leeming JA limited his determination to the circumstances of that case. However, if his Honour's statements at [105]-[106] are to stand for a general proposition, it is at best that where a party is successful in appealing a decision of NCAT, and an adverse costs order has been made against the party in respect of that decision, it may be that the adverse costs order is not enforceable. This relatively uncontroversial statement does not support the plaintiff's submission in these proceedings that where NCAT lacks jurisdiction to hear a claim, it lacks jurisdiction to award costs.
The "costs order" to which Leeming JA referred at [106] of his decision was the subject of Burns. In Burns, the Court of Appeal (per McColl JA and Emmett AJA) considered an appeal from the decision of an NCAT Appeal Panel, which had found that special circumstances warranted an award of costs against Mr Gaynor under s 60(3) of the CAT Act. Amongst other considerations, the Appeal Panel had taken into account Mr Gaynor's conduct before the Tribunal at first instance. In Burns, the Court of Appeal held that because s 60 of the CAT Act confers jurisdiction to the Tribunal to determine costs in respect of "proceedings before it", the question of whether the proceedings at first instance were relevant to a determination under s 60(3) involved an issue of principle warranting a grant of leave to appeal.
In Burns at [40]-[42], the Court of Appeal stated: "[40] The application for leave to appeal should, however, in our view be successful. Section 60(1) of the CAT Act provides that 'each party to proceedings in the Tribunal is to pay the party's own costs'. The Tribunal is nevertheless empowered to award costs 'in relation to proceedings before it' if satisfied special circumstances warrant such an order. Section 60(3) sets out matters to which the Tribunal may have regard in determining whether there are 'special circumstances' warranting an award of costs. [41] The Appeal Panel determined that there were 'special circumstances' warranting a costs order in the respondent's favour. One of the two matters the Appeal Panel identified as constituting "special circumstances" related to the 'conduct of the proceedings before Hennessy LCM, Deputy President' from which the appeal had been brought. Mr King's essential submission was that that was an error of law in that the Appeal Panel misapplied s 60, in having regard to matters other than those which related to 'the proceedings before it'. [42] In our view the issue the applicant seeks to raise concerning the proper construction of s 60 of the CAT Act involves an issue of principle warranting a grant of leave to appeal." (footnotes omitted)
Again, in my view I do not see how Burns stands for the principle advanced by the plaintiff in these proceedings. Burns considers whether an NCAT Appeal Panel may take into consideration matters outside of the "proceedings before it", such as the conduct of a party in the hearing at first instance. The Court of Appeal held that this issue raised a real question of law and warranted a grant of leave to appeal. As in Gaynor, however, the Court of Appeal does not provide authority for the proposition that where NCAT lacks jurisdiction to hear a case, it also lacks jurisdiction to make an order as to the costs.
After the hearing of these proceedings, Cornish was handed down in this Court. In further written submissions, the plaintiff sought to argue that in Cornish, the Court held that where NCAT makes a decision that is later found to be void, the Tribunal is deprived of jurisdiction to make a costs order with respect to the original decision. This is an analogous argument to that originally submitted by the plaintiff in relation to Burns and Gaynor above. For the reasons given below, it is my view that the plaintiff's further written submissions concerning Cornish did nothing to advance his argument, but simply provided a pretext for him to elaborate on his earlier submissions.
Like these proceedings, Cornish also concerned the Tribunal's jurisdiction under the Local Government Act. In Cornish, the Court considered an appeal brought by Mr Cornish, a civil councillor, from a Tribunal decision to suspend his right to payment for breaching his Council's Code of Conduct.
In respect of the issues on appeal in Cornish, Basten JA stated at [17]-[18]: "Issues on appeal or review [17] Of critical importance to the steps taken to discipline the applicant are the powers conferred on a council under the Local Government Act. The primary proposition relied on by the applicant was that the scheme of the Act did not permit the Code of Conduct and the procedures to impose disciplinary penalties for the breach of their own provisions. If that proposition were made good, NCAT had no power to discipline the applicant for breach of sanctions invalidly imposed by the adoption of Council resolution CW11. [18] The second proposition relied on by the applicant was that, assuming the resolution was valid and acknowledging that the applicant had not complied with it, NCAT erroneously limited its jurisdiction to a consideration of those facts and declined to consider whether the sanctions imposed by the Council were appropriate, having regard to the conduct which occurred at the two Council meetings in 2014. If the applicant were successful on this ground, but not on the first ground, he accepted that the matter would need to be remitted to NCAT to complete the exercise of its functions."
For reasons which are not relevant to these proceedings, Basten JA in Cornish determined that there had been no basis on which to refer the disciplinary proceeding to NCAT. As such, Mr Cornish was entitled to have the Tribunal's decision to suspend his pay set aside, and the primary application dismissed ([93]).
Having made his determination that the Tribunal lacked jurisdiction, Basten JA made the following orders at [94]: "(1) Set aside the order of the Civil and Administrative Tribunal made on 12 July 2018. (2) In lieu thereof, order that the proceedings commenced by the predecessor to the Secretary in the Tribunal be dismissed. (3) Order that the Secretary pay Mr Cornish's costs in this Court."
I agree with the defendants' submission that "the order" to which Basten JA refers in order (1) above is the Tribunal's singular order of 12 July 2018 that Mr Cornish's right to payment be suspended for a period of three months. As such, Basten JA makes no orders as to the costs of the proceedings before the Tribunal. Moreover, it does not follow from the reasons in Cornish that where the Tribunal lacks jurisdiction, it lacks jurisdiction to award costs.
Section 60(2) of the CAT Act states that the Tribunal may award costs in relation to "proceedings before it" where it is satisfied that special circumstances warrant an award of costs. Section 60(5) states that "costs" include the costs of, or incidental to, the proceedings in the Tribunal. Section 29(2)(a) of the CAT Act further states that the Tribunal has general jurisdiction to make "ancillary decisions" in its proceedings, which are defined under s 4 to include decisions concerning the awarding of costs. The legislation confers the Tribunal with jurisdiction to award costs in relation to proceedings before it. The plaintiff has failed to demonstrate that any of the decisions as to costs were made in error. In my view, ground 3(i) does not raise a question of law which is more than merely arguable. Leave to appeal on this ground is refused.

[44]

Consideration

The plaintiff brought his application before the Tribunal in the Local Government Proceedings under s 440 of the Local Government Act. The substance of his case in relation to Cr Santow was that the councillor had failed to disclose his relationship with a property developer, in contradiction of relevant regulations.
Section 440 of the Local Government Act states that regulations may prescribe a model code of conduct applicable to councillors. At [16] of the Local Government Costs Decision, the Senior Member referred to s 440(8) of the Local Government Act, which states that "nothing in this section or such a code gives rise to, or can be taken into account in, any civil cause of action."
In the Local Government Decision, the Senior Member dismissed the plaintiff's application in the Tribunal for want of jurisdiction. That decision is summarised in the Local Government Costs Decision at [44]-[46], where the Senior Member stated: "[44] It is apparent that from the time the respondents provided Mr Kelly with their submissions in regard to jurisdiction he was on notice of the respondents' contentions that the Tribunal lacked jurisdiction in regard to these applications. [45] There is no suggestion that Mr Kelly attempted to reach agreement with the respondents in regard to resolving the proceedings prior to the hearing. [46] It is common ground that I accepted the respondents' arguments regarding jurisdiction. In my view this was an inevitable outcome. I agree with the respondents that the applications lacked merit. I also agree that it was an abuse of process to continue the proceedings once Mr Kelly had been given the respondents' arguments regarding jurisdiction."
At [23] of the Local Government Costs Decision, the Senior Member had also noted that during the hearing of the Local Government Proceedings, the plaintiff conceded that "the matter may not have been within the Tribunal's jurisdiction".
Nevertheless, the plaintiff now argues that in failing to consider the substance of his claim concerning Cr Santow, the Senior Member failed to afford the plaintiff procedural fairness.
At the hearing of these proceedings, counsel for the plaintiff submitted that ss 28 and 29 of the CAT Act are relevant to this ground of appeal, in that they obliged the Tribunal to address the "real issues of the proceedings". I have extracted s 29 of the CAT earlier in this judgment. Section 28 of the CAT reads: "28 JURISDICTION OF TRIBUNAL GENERALLY (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction: (a) the general jurisdiction of the Tribunal, (b) the administrative review jurisdiction of the Tribunal, (c) the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction), (d) the enforcement jurisdiction of the Tribunal. (3) Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal."
Counsel for the plaintiff further referred to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088 ("Dranichnikov"). He argued that in Dranichnikov, the High Court held that where a party presents information about a case, which upon proper analysis is a proper ground for that party's success, then the mere fact that the party has misstated the basis upon which it approached the Court is not an answer to it (T 39.8-12).
In Dranichnikov, the High Court stated at [24]: "[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice…"
Like Mr Dranichnikov, the plaintiff in these proceedings was unrepresented in his action before the Tribunal. Counsel for the plaintiff submitted that although the plaintiff brought his claim under s 440 of the Local Government Act, the Tribunal should have realised that it was "clearly a s 329 case, in respect of which he was in the right place for the right reasons" (T 39.48-49). The plaintiff argued that it was this failure to consider his application as if it had been brought under the appropriate section of the Local Government Act that constituted a failure to afford him natural justice, and a failure to exercise jurisdiction.
There are three reasons why, in my view, this submission is misconceived. The first is that on the same day the plaintiff brought the Local Government Proceedings before the Tribunal under s 440 of the Local Government Act, he also brought the Smith Proceedings under the appropriate section, s 329. Despite being self-represented, his concurrent action brought on 25 October 2017 shows that he was aware of the appropriate section.
Secondly, this ground of appeal seems to allege that the Tribunal was obliged, "of its own motion" and by reference to ss 28 and 29 of the CAT Act, to investigate and correct the plaintiff's application. Such an obligation would require the Tribunal to determine whether the substance of the plaintiff's claim might be brought under another provision of the Local Government Act and then address the application on that basis.
This submission cannot be correct. In Bauskis v Liew [2013] NSWCA 297 ("Bauskis"), Gleeson JA addressed the court's duties in respect of self-represented litigants at [67]-[70]: "[67] First, the court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae‐Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500 ; (2005) 94 SASR 154. [68] Secondly, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337 ; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666 ; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]-[53]. [69] Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406 ; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914. [70] Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corp Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14."
Although NCAT lacks some of the formalities of a court, the principles which Gleeson JA outlines above in Bauskis are equally relevant to proceedings within the Tribunal. The Tribunal was under no obligation to advise the plaintiff as to how he should exercise his rights or advise him as to how he should conduct his case, such as suggesting he reframe the proceedings under a different section of the Local Government Act. The plaintiff was as subject to the rules of the Tribunal as any other litigant.
Thirdly, and on a related point, Dranichnikov is not an authority for the proposition that the Tribunal, in circumstances where it has found (and the plaintiff has conceded) that it lacks jurisdiction to hear a claim, must nevertheless consider the substance of that claim. The Tribunal's obligation to afford the plaintiff procedural fairness is an obligation to respond to a "substantial, clearly articulated argument". In my view, the plaintiff's application brought under s 440 of the Local Government Act cannot be said to be a "clearly articulated argument" brought under s 329 of the Act, nor was the Tribunal's failure to consider it as such in error.
Similarly, as the Tribunal's failure to consider the claim as if it had been brought under s 329 of the Local Government Act was not in error, neither did it constitute a failure to exercise jurisdiction. For these reasons, it is my view that in relation to the Smith Decision, the Tribunal did not err. These grounds of appeal must fail. In relation to the Smith Costs Decision, the questions of law raised by these grounds of appeal are not more than merely arguable. As such, leave to appeal on these grounds is refused.

[48]

Consideration

The reasons for the Smith Decision are set out in detail earlier in this judgment. It is not necessary to repeat them in full here, especially as the plaintiff has failed to particularise the alleged deficiencies. For the reasons provided in relation to grounds 3(a), (c), (d), (f) and (g), it is my view that the Senior Member's written reasons were sufficient and revealed no error of law. As such, this ground of appeal fails in relation to the Smith decision.
The Local Government Proceedings were dismissed on 21 February 2018. Orders were made that the parties were to address the question of costs on the papers.
The affidavit of Zoe Elliott contains a transcript excerpt from the hearing of the Local Government Proceedings before the Senior Member on 21 February 2018: Affidavit, Zoe Olivia Elliot, 16 July 2019 at p 4. The excerpt relevantly reads: "26:43 Senior Member: From what I've been told just walking through the sections, I can't see that the group one can be here without a referral from the chief executive. 26:54 Kelly: Fine if that's your determination I can do nothing but accept it. 26:58 Senior Member: It's not my determination yet but that's the way I see it I'm happy to hear argument to tell me why I'm wrong. 27:05 Kelly: Well, all I can do is argue the history and the facts as I see them senior member and I guess all I was looking for was a manner in which this issue could be addressed simply because of the frustration I'm experiencing in having it addressed through the correct channels. 27:21 Senior Member: Anything else that you want to say on that point? Ok, well then my view on that particular application which is 17/343156 is I've no jurisdiction to deal with it and therefore I dismiss it for want of jurisdiction. Ok. 27:43 Skehan: I'd like to be so bold as to ask, is it proposed by the tribunal it would issue reasons for this or is that a final determination as of now? 27:52 Senior Member: I can issue reasons. That'll be my determination now if I do reasons I have to go away and write them. My reasons will say what I've just said. That working through the various sections, it seems to me that the only way the code of conduct issues can be dealt with by the tribunal is pursuant to section 440J and that is on referral by the chief executive and I haven't got that referral and therefore I've got no jurisdiction to deal with it so that's what my reasons will say. 28:35 Kelly: We may be back. Sorry. When I get the referral I mean. 28:40 Senior Member: Bring a referral I'll deal with it. 28:44 Skehan: I don't want to take this too much further. We put into our submission a few paragraphs of our costs. I'll just leave that on the table as part of the submission..."
The Local Government Decision was delivered ex tempore. The plaintiff has produced no evidence that he requested written reasons and that they were refused. As the excerpt above makes clear, it was not the plaintiff who requested reasons, but Mr Greg Skehan, who acted as counsel for the defendants. In response, the Senior Member stated that his reasons were that the Tribunal lacked jurisdiction to hear the matter. Those reasons were further elaborated in the Local Government Costs Decision, as outlined earlier in this judgment.
The Appeal Panel Costs Decision was also delivered ex tempore. The affidavit of Zoe Elliott dated 18 June 2019 contains a transcript excerpt from the hearing before the Appeal Panel on 23 July 2018. It relevantly reads (CB p 322-324): "Now the issues for the Appeal Panel to determine are these: firstly, does the Appeal Panel have jurisdiction to hear and determine the appeal? Second, if so, has Mr Kelly established the question of law arises on the appeal? And third, alternatively, has Mr Kelly established that leave to appeal should be granted? And four, if leave, if the appeal is allowed, what orders should be made? We'll turn first to the issue of jurisdiction. … The Tribunal found that it had no jurisdiction to hear and determine Mr Kelly's substantive applications, which were brought under s 440 of the Local Government Act. We are satisfied that the Tribunal therefore had no jurisdiction to hear the application…Accordingly, both the Tribunal's substantive decision, and more relevantly the Costs decision, are not internally appealable decisions under s 80 of the [CAT Act]. We therefore find that the Appeal Panel does not have jurisdiction to hear and determine the appeal. … In the Reasons for Decision, it is clear that the special circumstances found by…the Tribunal were primarily the fact that Mr Kelly's applications were destined to fail, and that he was on notice of that from early in the proceedings. It is clear from the Reasons for Decision that the Tribunal correctly applied relevant legal principles in its assessment of the existence of special circumstances, and also applied relevant legal principles in considering whether, and if so how, to exercise the cost discretion. In such circumstances we are not satisfied that the discretion to award costs miscarried or that any question of law arises on the appeal. … The Tribunal's decision relates solely to the issues between the parties. There is no issue of principle of public importance involved on the appeal. The Costs decision in our view was an orthodox decision correctly arrived at by the Tribunal."
In considering this ground of appeal, I adopt the approach that this Court should not read the Senior Member's or the Appeal Panel's reasons "with an eye finely tuned for error": McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [67] per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291.
The standard to which the Tribunal's reasons are to be held is set out in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 ("Wingfoot"). Relevantly, the High Court in Wingfoot stated at [55]: "[55]… The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law…"
While Wingfoot refers to a medical panel under the Accident Compensation Act 1985 (Vic), the standard for written reasons set out at [55] above apply equally to the Senior Member and Appeal Panel under the CAT Act in this case.
In order to meet the legal standard outlined in Wingfoot at [55], the reasons of the Senior Member and the Appeal Panel were required to explain their actual path of reasoning in sufficient detail to enable a court to see whether their opinions involved an error of law. The plaintiff has failed to demonstrate that the reasons of the Senior Member and the Appeal Panel failed to meet this standard. As such, it is my view that in relation to the Appeal Panel decision, ground 3(j) does not raise a question of law which is more than merely arguable. Leave to appeal on this ground is refused. In relation to the Local Government Decision, the Tribunal's reasons reveal no error of law. This ground of appeal fails.

[52]

Consideration

Section 60 of the CAT Act has been set out earlier in this judgment. The plaintiff in his proposed summons does not identify how s 60(3) is alleged to have been misconstrued or misapplied. As such, no question of law has been properly raised.
The application of s 60(3) of the CAT Act involves an exercise of discretion. The principles according to which this Court is to decide whether a discretionary decision to award costs constitutes an error of law are stated definitively in a short passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at pp 504-505. Those principles are as follows: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
Counsel for the plaintiff submitted that this appeal raises an issue of principle because in the Local Government Costs Decision, the Senior Member stated that the plaintiff had "reasonably brought the matter" (T 36.40), and that although the Tribunal dismissed the proceedings for want of jurisdiction, the matter was one which "otherwise [the Senior Member] agreed to be in the public interest" (T 37.1-2). He therefore erred in exercising his discretion to award costs.
However, in his written reasons, the Senior Member made no such concession. At [42], he stated that it was "understandable" that a self-represented litigant would commence proceedings in the Tribunal without jurisdiction. However, far from stating that the plaintiff's applications were reasonably brought, he stated at [46], "I agree with the respondents that the applications lacked merit." He found that continuing with the proceedings after having been made aware that the Tribunal lacked jurisdiction was an abuse of process. The plaintiff has not challenged that decision, nor the determination made in the Smith Costs Decision that those proceedings were obviously untenable and vexatious.
In the case of each costs decision, the Tribunal considered whether special circumstances existed, and upon being satisfied in its discretion that they did, went on to exercise its discretion in making an order for costs. The plaintiff has failed to demonstrate that this discretion was exercised in error in any of the decisions specified. As such, it is my view that ground 3(k) does not raise a question of law which is more than merely arguable. Leave to appeal on this ground is refused.

Kelly v Szatow

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