Secretary/Delegate, Office of Local Government, Department of Planning Housing and Infrastructure (the Secretary) v Councillor Andrew Thaler [2025] NSWCATOD 160;

Cosmos E/C Commerce Pty Limited v Sue Bidwell and Associates Pty Ltd [2005] NSWCA 81

Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure v Thaler; Thaler v Deputy Secretary, Local Government, under delegation from the Secretary, Department of

Planning, Housing and Infrastructure [2025] NSWCATOD 146

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Haigh v Haddad [2005] NSWCA 28

Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232; (2020) 103 NSWLR 91

NRMA Insurance Ltd v A W Edwards Pty Limited (1995) 11 BCL 200

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589; [1981] HCA 45

Re referral by Deputy Secretary, Local Government, under s 438HA of the Local Government Act 1993, concerning Mr Thaler, a Councillor [2025] NSWCATOD 102

Re Referral by Executive Director, Local Government, under s 440J of the Local Government Act 1993, concerning Mr Hindi, a former councillor v Hindi [2022] NSWCATOD 152

Silverton Ltd v Harvey (1975) 1 NSWLR 659

Stokes v Toyne [2023] NSWCA 59

Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 88

Theseus Exploration NL v Foyster (1972) 162 CLR 507; [1972] HCA 41

Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57

Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1

Wigmans v AMP Ltd [2021] HCA 7

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure (Applicant)

J Matthews (Department of Planning, Housing and Infrastructure) (Applicant)

1. By application filed 17 October 2025 Councillor Andrew Thaler (Councillor Thaler) sought an order "dismissing matter 2025/00239261 (the PIO proceedings)" or, in the alternative "an order permanently staying the proceeding", an order "setting aside the disciplinary action determined by the delegate of the Secretary, on 28 July 2025 and in place from 4 August 2025 until 4 November 2025" (matter 2025/00294190), against which Councillor Thaler has a pending appeal (the appeal proceedings), and an order that the Secretary pay Councillor Thaler's costs of the proceedings pursuant to s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).
2. The Secretary opposed the granting of any of the relief sought by Councillor Thaler.
3. Councillor Thaler's filed a comprehensive outline of his contentions on 14 October 2025. The Secretray filed a responding outline of contentions on 21 October 2025. On 21 October 2025, Counsel for the parties spoke to their written submissions. At the conclusion of the hearing, the Tribunal reserved its decision in relation to these, and another matter which is the subject of a separate decision (Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure v Thaler; Thaler v Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning Housing and Infrastructure [2025] NSWCATOD 146).
4. It is not in contest that the Tribunal is invested with jurisdiction to determine Councillor Thaler's application. Jurisdiction to determine Councillor Thaler's first and third prayers for relief is conferred on the Tribunal by s 55 of the CAT Act. Section 55(1) of the CAT Act provides that the Tribunal "may dismiss at any stage proceedings before it", relevantly for present purposes (b) "if the Tribunal considers that the proceedings are.... misconceived or lacking in substance".
5. The alternate relief for which Councillor Thaler prays may be granted by the Tribunal in the exercise of its jurisdiction with respect to interlocutory decisions. The definition of "interlocutory decision" in s 4 of the CAT Act includes "(a) the granting of a stay".
6. Sensibly, Counsel for the parties agitated Councillor Thaler's applications in the PIO and appeal proceedings conjointly. Although involving different legal and factual issues, as the two overlap to some extent, and the determination in either proceeding potentially impacts on the determination of the other proceeding, it is appropriate to determine applications in this decision. As the legal principles governing both of Councillor Thaler's applications are substantially similar, doing so cannot prejudice either party.

1. In addition to the submissions of Counsel for the parties, the Secretary filed a chronology of relevant dates and events on 20 October 2025. Counsel for Councillor Thaler provided an aide memoire identifying in table form the asserted overlap between conduct relied upon by the Secretary in the PIO proceedings and the conduct relied on in the appeal proceedings. The Tribunal has before it the report which gave rise to the PIO proceedings.

1. The primary relief sought by Councillor Thaler with respect to the PIO and the appeal proceedings is in the nature of summary disposal. The principles governing the applications are not in doubt or dispute, and require only brief reiteration.
2. Summary disposal is a discretionary remedy and the more dependent the outcome of the proceedings may be on disputable factual premises, the less likely that summary disposal will be appropriate, particularly if there are issues of legal complexity (NRMA Insurance Ltd v AW Edwards Pty Limited (1995) 11 BCL 200). Although the scope for factual disoutes appears potentially limited, both proceedings involve issues of legal complexity which may not be confined to the individual proceedings.
3. The jurisdiction to summarily dispose of proceedings has been consistently judicially determined as requiring that "jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion" (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1; Theseus Exploration NL v Foyster (1972) 126 CLR 507; [1972] HCA 41; Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57; Cosmos E/C Commerce Pty Limited v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81). Although sensibly limited in the context of summary disposal proceedings, the Tribunal has received considerable assistance from Counsel for the parties. Whether the Tribunal is presently able to reach a definite and certain conclusion with respect to issues of private and public importance is thus the real issue for determination.
4. In the context of a summary disposal application, a court will determine questions of law if satisfied that the point is clear (Silverton Ltd v Harvey (1975) 1 NSWLR 659). As the written and oral submissions of Counsel suggest, the law with respect to the issues raised in each of the proceedings is less than clear. A court examines the evidence, not for the purpose of making findings of fact, but only to determine whether a triable issue is disclosed (Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1). If satisfied that the power to summarily dispose is available, a court may be inclined to refuse relief on discretionary grounds (Bott v Carter [2012] NSWCA 39). If available, the legal complexity, and the private and public importance of these proceedings would militate against exercising the power to summarily dispose of either proceeding in preference to a full hearing of them on the merits.
5. In Attorney-General v Wentworth [1988] NSWCA 8; (1988) 14 NSWLR 481, Roden J said that proceedings were vexatious if they were instituted with the purpose of "annoying or embarrassing the person against whom they are brought", brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise or, if, irrespective of the motive of the litigant, are so obviously untenable and manifestly groundless as to be utterly hopeless. Although seemingly limited, Councillor Thaler's submissions imply that the Secretary's motivation with respect to the actions taken in each proceeding may be in issue if the proceedings are heard on the merits.
6. The power of the Tribunal to dismiss proceedings it considers to be vexatious pursuant to s 55(1)(b) of the CAT Act are consistent with those adopted by courts (see Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232; (2020) 103 NSWLR 91).
7. Councillor Thaler contends that the PIO and the appeal proceedings constitute abuses of process. Abuse of process can take numerous forms, each of which Councillor Thaler alleges, including:

(a) the institution of proceedings for an improper purpose (Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509);

(b) bringing concurrent proceedings in different courts relating to the subject matter (Commonwealth of Australia v Cockatoo Dockyard Pty Limited [2003] NSWCA 192);

(c) an attempt to relitigate issues which have already been determined in previous proceedings where the principles of res judicata or issue estoppel are applicable (Haigh v Haddad [2025] NSWCA 28);

(d) an attempt to litigate issues which could and should have been litigated in previous proceedings (Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589; [1981] HCA 45).

1. The principles governing the alternate relief for which Councillor Thaler prays were comprehensively, and accurately summarised in the submissions of his Counsel (para 68ff). The Tribunal may order a permanent stay of proceedings if a trial of them would be unnecessarily unfair, or so unfairly and unjustly oppressive as to constitute an abuse of process. Alternatively, a stay may be ordered if the proceedings are brought or maintained for an improper purpose. The authorities (Stokes v Toyne [2023] NSWCA 59) establish that:

(a) the onus of providing that a permanent stay of proceedings should be granted lies squarely on the party seeking such relief;

(b) a permanent stay should only be ordered in exceptional circumstances;

(c) a permanent stay should be granted when the interests of the administration of justice so demand;

(d) the categories of case in which a permanent stay may be ordered are not closed;

(e) one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive;

(f) the continuation of proceedings may be oppressive if that is their objective effect;

(g) proceedings may be oppressive where their effect is seriously and unfairly burdensome, prejudicial or damaging;

(h) proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party; and

(i) proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right thinking people.

1. It was submitted on behalf of Councillor Thaler that the power to order a stay is "available as a tool" to resolve the problem presented by multiple proceedings, and overlaps with the inherent power to stay a proceeding to prevent abuse of processes, which extends to staying proceedings that are frivolous, vexatious or oppressive (Wigmans v AMP Ltd [2021] HCA 7). Councillor Thaler submitted, and the Tribunal accepts that, whilst the Civil Procedure Act 2005 (NSW) does not apply to proceedings in the Tribunal, and the Tribunal lacks "inherent" powers, the same considerations as apply to courts with respect to summary disposal apply to the Tribunal in these proceedings. As submitted on behalf of Councillor Thaler, support for that contention is gained from sections 36 and 38 of the CAT Act.

1. The background to these proceedings was recorded by Deputy President Seiden SC DCJ in her Honour's decision of 7 August 2025 (the referral proceedings) to which the parties referred the Tribunal as background to these proceedings. The PIO proceedings were commenced by the Secretary on 23 June 2025 pursuant to s 438HA(9) of the Local Government Act concerning a departmental report (the report) concerning the alleged failure of Councillor Thaler to:

"(i) take action, as required by performance improvement order issued on 6 February 2025 and made under s 438A of the Act (the PIO);

(ii) as constituted by specified conduct and statements;

(iii) alleged contraventions of the Snowy Monaro Regional Council Code of Conduct (the Code); and

(iv) alleged breaches of an undertaking entered into pursuant to the PIO (the undertaking)."

1. Pursuant to s 469 of the Act it was necessary for the Tribunal to determine whether to accept the referral of the report by the Secretary pursuant to s 469 of the Act. On 7 August 2025, for the reasons which it then published, the Tribunal determined that it would conduct proceedings into the matter referred by the Secretary - the PIO proceedings. In summary the Tribunal found [4]:

"(1) That, contrary to the submissions by the Councillor and despite some commonality in the conduct particularised in the report and proposed referred proceedings, on the one hand, and the recently determined matter of Thaler v Secretary, Department of Planning Housing and Infrastructure [2025] NSWCATOD 88 (Thaler Number 1), on the other hand, the matters concern distinct issues and there is no "double jeopardy" or "extra curial punishment" or the like, in the Tribunal conducting the referred proceedings;

(2) Further, the Secretary in the proposed referred proceedings, raises arguable allegations of failure to take action under the PIO and breaches of the code and the undertaking, which warrant consideration by the Tribunal;

(3) To the extent the Councillor has raised legal or factual defences in his submissions, these should properly be the subject of full argument and evidence, which may be dealt with in the usual course of proceedings in the Tribunal; and may be raised as part of the referred proceedings."

1. By reference to the decision in Re Referral by Executive Director, Local Government, under section 440J of the Local Government Act 1993, concerning Mr Hindi, a former Councillor v Hindi [2022] NSWCATOD 152 her Honour recorded [20] the matters relevant to the determination of the referral application:

"(1) Whether a reasonably arguable (prima facie) has been established.

(2) Whether the misconduct alleged is more serious than trivial or trifling conduct.

(3) Whether any circumstance exists which would make the conduct of proceedings unfair to the respondent, or contrary to the public interest."

1. Under the heading "The Proposed Subject Matter of the Referral", Judge Seiden considered the contentions of each of the parties. Her Honour determined [39]-[42] that the Secretary had a "reasonably arguable case that the conduct or some of the conduct (alleged) constitutes a breach of the Code and the undertaking ... constitutes a failure to take action as required under the PIO". With respect to the "seriousness of the conduct", her Honour accepted [43]-[45] that the consequences alleged to have resulted from Councillor Thaler's alleged conduct were arguable. Her Honour was not persuaded that the "prejudice to the Councillor and the public interest" militated against declining to accept the referral of the matter. Councillor Thaler's contention [48] that the proceedings constituted extra curial punishment was considered, "at least at this ancillary stage", as insufficient to "provide a basis to refuse the referral".
2. At [49], the Tribunal considered Councillor Thaler's contention that "the bulk of the conduct" the subject of the proposed referral is also the subject of disciplinary orders made against Councillor Thaler and thus, to grant the referral application, would be to subject him to "double counting or double jeopardy". Her Honour found "at this preliminary stage, that there is no double jeopardy or double counting" for four reasons [49].
3. Her Honour also considered, at [50] a number of other contentions advanced by Councillor Thaler, some of which have been relied upon in support of the present application. Her Honour ultimately determined [56] that the Secretary has "an arguable case" with respect to the matters alleged against Councillor Thaler in the PIO proceedings.
4. Although the Tribunal is not persuaded that it is necessarily precluded from granting the relief presently sought by Councillor Thaler in reliance upon the decision of Judge Seiden SC with respect to the referral application, the grounds on which referral was resisted, the Tribunal's consideration of those matters, and the principles governing the present applications suggest that, unless the Tribunal is persuaded to the contrary, significant weight should be afforded to the referral decision. That is particularly so given that, as is not in dispute, the present application does not involve the determination of untested disputed issues of fact, and is by nature "preliminary" in the sense in which that term was deployed in the referral decision. In those circumstances, to summarily dispose of the PIO proceedings would arguably be tantamount to overturning the referral decision.

1. The Tribunal has reserved 10, 11 and 12 for the hearing of the appeal and PIO proceedings. Although not conclusive of the present applications, the opinions of experienced and competent Counsel that three days could be required to hear the proceedings on their merits is consistent with the Tribunal's reluctance to summarily dispose of either proceeding. Although, understandably, not the subject of extensive submissions in these summary disposal proceedings, the extent, if any, to which findings made in the PIO proceedings could impact on the appeal proceedings, or vice versa, emerges from the submissions of Counsel as a matter of considerable complexity, which would be agitated in a hearing on the merits.

1. For present purposes, the critical issue is whether, on any of the grounds advanced by Councillor Thaler, the PIO or the appeal proceedings should not be permitted to continue in circumstances where, Councillor Thaler alleges, although put more eloquently by his learned Counsel, the Secretary is attempting to have Councillor Thaler dealt with twice, pursuant to different provisions of the Local Government Act, for the same alleged conduct.
2. With no disrespect to Counsel for Councillor Thaler in the present proceedings, and accepting that the submissions made in support of the summary disposal sought by him are more extensive and sophisticated than were apparently made, or needed to be made before Judge Seiden SC in the referral proceedings, the contentions are substantially identical. In summary, Councillor Thaler contends that, by relying on the same, or substantially the same conduct in support of the PIO and the suspension order which gave rise to the appeal proceedings, and making sequential suspension orders against him in reliance on conduct alleged to have occurred within a short time frame, rather than making a single suspension order in reliance on the totality of the alleged conduct, the Secretary has engaged in one or more of the categories of unconscionable conduct asserted by him.
3. In order to determine Councillor Thaler's "double jeopardy" contentions in the context of summary disposal proceedings, it is necessary to consider, albeit on a preliminary basis, the relevant provisions of the Local Government Act 1993 (NSW). Part 6 of Chapter 13 of the Act is concerned with "performance management". Section 438A permits the Minister to issue a pergormance improvement order (PIO) to a council if the Minister reasonably considers that action must be taken to improve the performance of the council. A PIO must specify the "actions that the Minister requires to be taken" by a councillor (s 438A(3)(b)). Failure by a councillor to take specified action required by a PIO is deemed "misconduct" for the purposes of s 438HA and Part 3 of Chapter 14 of the Act (s 438HA(11)). The Minister may require the Secretary to arrange for the preparation of a departmental report as to whether a councillor has failed to take action as required by a PIO (s 438HA(1)). Although the Secretary may also arrange a departmental report under s 438HA of his/her own volition, that is not what occurred with the present PIO referral.
4. The powers of the Secretary and the Minister differ, as evidenced by the omission of failing to take specified action under a PIO contrary to s 438HA(11) from the definition of "misconduct" in s 440F(1) in Part 1 of Chapter 14 of the Act. As the Secretary's power to arrange a departmental report under s 440H and to take disciplinary action under s 440I depends on a finding of misconduct as defined in Part 1 of Chapter 14, the Secretary is precluded from relying on misconduct under s 438HA(11) for that purpose. A councillor can only be disciplined for failing to comply with a specified action in a PIO if the Minister makes a compliance order under s 438HA(2) or "requests" that the Secretary refer the matter to the Tribunal under 438HA(8). The legislation does not imply that the Secretary has any discretion to refuse the Minister's request. Nor, arguably, can the Secretary, of his/her own volition refer the departmental report arranged under 438HA to the Tribunal.
5. The Act provides that the Minister's power to respond to alleged councillor misconduct under Part 6 of Chapter 13 is separate from other measures available under the Act. Section 438A(7A) provides that "The making of a performance improvement order, or the fact that such an order is in force, does not derogate from a power of the Minister or any other person to make any other order or take any other action under the Act."
6. Division 3 of Part 1 Chapter 14 is concerned with "misconduct" and provides, s 440H that the Departmental Chief Executive may "investigate or seek report on misconduct of councillor". Section 440I provides that the Departmental Chief Executive "may take disciplinary action for misconduct" by, amongst other things, suspending the councillor for civic office for a period not exceeding three months (s 440I(2)(g)).
7. Section 440I(3) provides that "In determining which disciplinary action, if any, to take against a councillor who has engaged in misconduct, the Departmental Chief Executive may take into account any previous incidents of misconduct by the councillor, or any disciplinary action previously taken against the councillor and any other relevant matters".
8. As the Tribunal exercises the powers of the Departmental Chief Executive pursuant to s 440I, and as any appeal against disciplinary action proceeds as a full hearing on the merits, the Tribunal, if persuaded that any disciplinary action should be taken against Councillor Thaler, would have regard to any findings made in the PIO proceedings as "other relevant matters".
9. Division 1 of Chapter 14 of the Act is concerned with "conduct generally". Section 440I of the Act is concerned with disciplinary action for misconduct, and relevantly provides (s 440I(2)(g)) that the Departmental Chief Executive may suspend a councillor who has engaged in misconduct for a period not exceeding three months. Pursuant to s 440L, a councillor who is thus suspended has a right of appeal to the Tribunal. Section 440L(3) invests the Tribunal with jurisdiction to stay any decision made by the Departmental Chief Executive until such time as the Tribunal determines an appeal against a suspension order.
10. Section 440L permits a councillor the subject of disciplinary action to appeal to the Tribunal, which right Councillor Thaler has exercised with respect to the second suspension order made against him.
11. In its referral decision, the Tribunal found at a "preliminary stage" that although there was "an overlap", to secure the relief sought, the Secretary needed to prove matters in the PIO proceedings which were "not co-extensive" with the elements in the disciplinary action proceedings. Judge Seiden SC identified [49(2)] an "additional circumstance, unique to the proposed referred proceedings, being the failure to take steps under the PIO and the consequent breach of the undertaking". Her Honour identified the difference in the proceedings as misconduct grounded on breaches of the Code (disciplinary action proceedings) and the PIO proceedings. Her Honour accepted, again at a "preliminary stage" that the Act does not "expressly or impliedly, prohibit a finding that a person has failed to take action under a PIO where the conduct is also misconduct for some other reason".

1. The Tribunal is not persuaded that it should grant relief with respect to the PIO proceedings in the primary or alternative terms sought by Councillor Thaler. As the submissions of Counsel for the parties in the present proceedings confirm, although the scope for factual disputation is perhaps limited by the extent to which the conduct of Councillor Thaler relied upon by the Secretary is evidenced by electronic communications, there remain factual issues for potential forensic agitation in the PIO proceedings. There are also, as the submissions of Counsel for the parties confirm, real questions of statutory construction, some of which do not turn on findings of fact, others of which may. The extent to which the Tribunal's findings in one proceeding impact on the outcome of the other proceeding looms as an issue of significant complexity.
2. The interests of justice would in the Tribunal's view be best served by having the PIO proceedings determined on the merits in the light of findings with respect to agreed or disputed facts after those isssues have been fully agitated, including, if sought, by cross-examination of witnesses. Although some cases are appropriately determined without oral submissions, a full oral hearing of the PIO, and the opportunity for meaningful engagement with the submissions of Counsel for the parties will equip the Tribunal to do justice to the merits of each party's case than is now realistically possible. Put bluntly, the more closely the issues in these proceedings are examined, the more their complexity becomes apparent.
3. As was the decision of the Tribunal of 7 August 2025, the Tribunal's reasons in this application are based on a "preliminary" assessment of the proceedings. Whether expressed as an arguable case, or a case raising serious issues for determination, the Secretary's case is entitled to be heard and determined on its merits. As the legislation makes clear, the determination of the PIO proceedings involves what might be thought to be findings of jurisdictional fact which, if made out, give rise to the exercise of discretion with respect to the appropriate relief. Understandably, the submissions of Counsel in the summary disposal proceedings do not engage in detail with the latter issue, or the potential overlap between discretionary considerations in the PIO and, the exercise of discretion in the appeal proceedings if the relevant disciplinary provisions of the Local Government Act are enlivened.
4. With respect to the submissions of his learned Counsel, none of the grounds for summary disposal of the PIO proceedings relied on by Councillor Thaler has been made out. Accordingly, the Tribunal declines to grant summary disposal of the PIO proceedings, or to permanently stay them.

1. It remains to consider Councillor Thaler's prayer for an order setting aside the suspension order made by the Secretary on 28 July 2025, which was in place from 4 August 2025 until 4 November 2025, against which Councillor Thaler has appealed pursuant to s 440L of the Act. Notwithstanding that the suspension has expired, because of the implications of the suspension order pursuant to the provisions of s 275 of the Local Government Act, the outcome of the appeal has potentially long-term practical significance for Councillor Thaler.
2. In its decision in Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure v Thaler; Thaler v Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 146, at [38]-[40] the Tribunal identified the relevant disciplinary provisions of the Local Government Act, and some of the issues of statutory interpretation relating to the operation of a number of provisions of s 440L(3). That outline is relied upon in these reasons.
3. As explained by Deputy President Hennessy ADCJ in Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 88 at [24ff], Councillor Thaler's appeal against the disciplinary action is a "full appeal on the merits of the Secretary's decision". As her Honour identified, the Tribunal is required to determine "on the basis of the evidence before it, whether the alleged misconduct is proven and the appropriate disciplinary response". In substance, the Tribunal must determine whether jurisdiction is enlivened and, if so, what, in the exercise of discretion, is the appropriate disciplinary response.
4. By reference to the decision in Coppock v Secretary, Department of Planning and Environment [2020] NSWCATOD 89, Deputy President Hennessy ADCJ accepted that, in hearing the appeal, the Tribunal must "consider all the evidence and make findings on the underlying conduct and the appropriate orders". Although identifying the nature of an appeal under s 440L of the Act is not difficult, the present appeal proceedings involve complex issues of statutory interpretation with respect to the power to make suspension orders against councillors, and whether the Secretary has abused those powers, or exercised them for an improper or collateral purpose. There are also potentially questions of interpretation with respect to the extent to which either party can rely on conduct, or its absence, subsequent to the conduct which gave rise to the disciplinary action, and, to the extent that a party can do so, what significance that can permissibly assume. As submitted by Councillor Thaler, issues of alleged double jeopardy of the kind considered in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, also potentially arise in the appeal proceedings.
5. Although it is unnecessary to express more than a preliminary view, in circumstances where the disciplinary action which gave rise to the suspension order, having not been stayed, is valid and effective unless and until it is found, on any of the grounds relied on by Councillor Thaler, to have been made in the absence of jurisdiction, summarily setting it aside would be difficult to justify having regard to the authorities identified earlier in these reasons.
6. Councillor Thaler challenges the disciplinary action taken against him on grounds involving abuses of process, as articulated in the submissions of his learned Counsel. As those submissions make clear, determining the appeal requires careful consideration of the facts alleged by the Secretary in support of the disciplinary action, the circumstances in which they were made, and Councillor Thaler's evidence with respect to those matters. Informed by its findings with respect to disputed issues of fact, the Tribunal must determine whether, as Councillor Thaler contends, the Secretary has abused his/her powers by either relying on the same, or substantially the same conduct in support of separate disciplinary actions and/or failing to aggregate alleged conduct in support of a single disciplinary action, electing, improperly, to take sequential disciplinary actions thereby, intentionally or unintentionally, enlivening s 275 of the Act, the consequences of which for Councillor Thaler are dire and mandatory.
7. The submissions of both parties identify substantial issues of private and public importance to be determined in the appeal proceedings. On its preliminary view of the appeal proceedings, each party has an arguable case, or raises serious issues for determination at a hearing on the merits. To take the serious step of summarily disposing of the appeal proceedings when only able to make preliminary factual and legal assesments of the merits of the case would not be in the interests of justice. The discretionary factors militating against summarily disposing of the PIO proceedings identified earlier in these reasons support declining to summarily dispose of the appeal proceedings.

1. The appeal and PIO proceedings will commence to be heard on their merits on 10 December 2025.

1. The Tribunal reserves the costs of the present application, and will make directions for submissions at the conclusion of the hearing of the PIO and the appeal proceedings.

(1) The application filed on 17 October 2025 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.