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[2026] NSWCA 200
appellant. Leave granted to the extent necessary; appeal allowed; NCAT’s 19 February 2026 orders set aside; the disciplinary appeal remitted to NCAT for determination according to law; the Secretary’s 28 July...
The Court of Appeal held that NCAT had gone wrong by relying on a criminal sentencing concept to treat Thaler’s separate Code breaches as one episode in a way that affected its decision about discipline. It also considered the Tribunal’s non-suspension orders far too weak for the serious, repeated and deliberate abuse shown by the evidence before it. The Court did not itself decide what sanction should ultimately apply. It sent the appeal back to NCAT for a fresh decision, based on further and more up-to-date evidence.
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2,239 words · generated 08/10/2026
The case concerned disciplinary action against Andrew Thaler, an elected councillor of Snowy Monaro Regional Council. The central conduct was a series of crude and abusive statements posted on Facebook and YouTube in March 2025. They targeted two fellow councillors and two members of the public. The judgment records that there was no dispute that the conduct constituted “misconduct” under the statutory regime, or that the statements were “offensive, humiliating and disgraceful” ([2]).
7 cited instruments linked from this judgment.
The events sat within a sequence of disciplinary proceedings. An earlier set of social media statements led to a three-month suspension beginning in May 2025, which NCAT confirmed in July 2025 ([18], [21]). A second departmental investigation concerned further March 2025 statements, including attacks on Councillor Narelle Davis, Councillor Lynda Summers, Warren Catton and Oliver Kapetanakos ([19]). On 28 July 2025, the Secretary imposed another three-month suspension ([22]).
On appeal from that second decision, NCAT set aside the suspension and substituted a reprimand, directions to stop the misconduct, apologies and training. In reaching that outcome, NCAT treated the conduct underlying the first and second suspensions as part of a single episode. It also considered the effect of a further suspension under s 275(1A) of the Local Government Act 1993 (NSW), which provides for five years’ disqualification from civic office following a third or subsequent suspension order ([16]–[17], [47]).
The Secretary appealed to the Court of Appeal on three grounds: that NCAT misconceived its statutory function, misapplied the criminal sentencing principle of totality, and imposed manifestly inadequate disciplinary orders ([36]). The Court allowed the appeal, set aside NCAT’s orders and remitted the disciplinary appeal for reconsideration according to law. It stayed the Secretary’s decision for six weeks while the remitted matter was to be pursued. It also dismissed Thaler’s cross-appeal ([67]–[71]).
The Court’s main legal concern was NCAT’s use of “single episode” reasoning. Leeming JA explained that the criminal sentencing principle of totality addresses the overall punishment for multiple offences. In sentencing, courts consider whether a sentence for one offence can reflect the criminality of another, and whether sentences should be concurrent or partly cumulative. The concern is that the total effective sentence should reflect the total criminality without being excessive or inadequate ([50]).
That sentencing framework did not map closely onto the statutory discipline of councillors. The purposes of criminal sentencing and statutory disciplinary action are not identical. Under the Local Government Act, each contravention of the Code of Conduct is misconduct. Similarity, proximity in time and common features may help determine the appropriate response, but those matters do not create a controlling division between “discrete acts” and a “single episode” in the way NCAT had used the idea ([51]–[54]).
The Court also pointed to the specific operation of s 275(1A). The five-year disqualification consequence is triggered by the number of suspension orders, not by the length of each suspension. That is materially different from criminal sentences being served concurrently or consecutively. In the Court’s view, this difference exposed the danger of importing a sentencing principle into the councillor disciplinary scheme without sufficient regard to its distinct structure ([54]).
NCAT’s characterisation was not merely descriptive. It formed part of the reasoning for treating confirmation of the second suspension as “problematic”. The Court held that the decision did not turn on whether the relevant misconduct could be labelled a single course of conduct. That reasoning was central to the disposition, so Ground 2 was made out ([55]–[57]).
Ground 3 also succeeded. The Court considered the conduct serious because it was directed at multiple people, published to social media, sustained and deliberate rather than a single spontaneous remark. Some of it occurred when Thaler knew a departmental report had been prepared and supplied to him in draft. The Court found no redeeming feature in the conduct, and observed that it was not shown to be humorous or motivated by a purpose genuinely believed in by Thaler ([60]–[62]).
The Court also considered weaknesses in the substituted orders. NCAT itself had questioned whether an apology would be useful or genuine ([63]). The Court further noted uncertainty about whether the cessation order was sufficiently specific to support contempt proceedings, referring to the discussion in Godfrey v Wollondilly Shire Council ([64]). Taken together, these matters led the Court to conclude that the orders were “wholly inadequate” on the evidence then before NCAT ([65]).
The Court did not, however, impose a suspension itself. It accepted the submission that the matter should return to NCAT for redetermination, on further and more up-to-date evidence. That meant the ultimate disciplinary result remained open ([67], [70]).
The judgment describes the statutory framework that applied before the appeal. Section 440F defines relevant misconduct to include failure to comply with an applicable Code of Conduct requirement. Section 440I authorises disciplinary action where the Secretary is satisfied that a councillor has engaged in misconduct and disciplinary action is warranted. Available actions include counselling, reprimand, directions to cease the misconduct, training and suspension for up to three months ([10], [13]–[15]).
Section 440L gives NCAT authority to hear an appeal and confirm, amend or set aside the Secretary’s decision and substitute a new decision. The substituted decision has effect as if made by the Secretary ([15]). The judgment also explains the consequence of s 275(1A): if a person is subject to a third or subsequent suspension order, that person is disqualified from holding civic office for five years after the order takes effect ([16]).
The judgment does not replace that statutory framework or declare a new general test for the amount of discipline required in every case. Its contribution is narrower. It rejects the close application of criminal totality reasoning where that reasoning creates a decisive dichotomy between discrete misconduct and a single episode in the statutory councillor discipline context ([51]–[57]). It leaves open the relevance of the timing, similarity and relationship between instances of misconduct when deciding the appropriate disciplinary response ([53]).
The Court also clarified that the Secretary’s powers are not implicitly constrained by a requirement to leave time for reflection between suspensions. At the same time, the consequences of s 275(1A), and how instances of misconduct are formulated and dealt with, are not matters that can simply be ignored ([46]). That passage recognises both the absence of an implied waiting period and the relevance of statutory consequences to disciplinary decision-making.
As to the practical effect of this appeal, NCAT’s orders were set aside and its decision was returned to it. The Court did not decide that a particular suspension must be imposed. It expressly left room for a different outcome if the evidence on remittal produced a different position ([66]–[70]).
At [51], Leeming JA said that the criminal sentencing principle “does not translate, at least not in any closely analogous way” to the statutory discretion to impose councillor discipline. In plain English, the Tribunal could not treat the criminal sentencing framework as a ready-made method for deciding how several Code breaches should affect a councillor’s disciplinary outcome.
At [53], the Court recognised that similar conduct, close timing and a common target can matter. For example, several closely related statements about the same councillor may be relevant together. But the Court characterised any analogy with a single criminal episode as loose, not decisive. This distinction is important: the judgment did not say that context is irrelevant. It said that context should not replace the statutory task.
At [54], the Court contrasted criminal sentence concurrency with the five-year disqualification consequence in s 275(1A). The statutory consequence turns on the number of suspension orders, not their duration. In plain English, the statutory scheme has a counting feature that makes it unlike the usual question of how much imprisonment results from several offences.
At [55], the Court concluded that the “single episode of misconduct” label had distracted NCAT from the task. The problem was not merely that NCAT used a particular phrase. It was that the label helped drive the conclusion that confirmation of the second suspension was problematic.
At [65], the Court listed the combined features supporting manifest inadequacy: serious verbal abuse, sustained and deliberate conduct, disregard of the seriousness of earlier misconduct, and absence of insight or contrition. It concluded that the non-suspension orders were wholly inadequate on the evidence before NCAT. That conclusion was about the particular record before the Court, not an automatic rule that every instance of abusive councillor speech requires suspension.
At [67], the Court explained why it remitted the matter rather than settling the sanction. Its decision set aside NCAT’s orders, but further and more up-to-date evidence was to be considered by the Tribunal. Thus, the Court determined that the original decision could not stand, but left the ultimate disciplinary decision to the statutory merits-review body.
The reasoning is most directly relevant where a councillor faces multiple Code of Conduct breaches and a Tribunal is asked to decide the appropriate disciplinary response. It is particularly relevant if the Tribunal proposes to treat misconduct as one “episode” and uses that characterisation as a central reason to reduce or alter the response to a later disciplinary decision ([47]–[57]).
The judgment also matters where repeated suspensions may engage s 275(1A). The Court recognised that the statutory consequence can be severe, but held that its operation did not make criminal sentencing totality an appropriate controlling framework. The legislation’s consequences remain relevant, while the disciplinary task must still be performed under the statutory scheme ([16]–[17], [46], [54]).
The manifest-inadequacy analysis arose from a combination of features: repeated and deliberate public abuse, attacks on several people, conduct linked to the councillor’s public role, awareness of the disciplinary process, and absence of insight or contrition. Those features were important in this case; the judgment does not establish a fixed checklist or threshold that automatically determines sanctions in future cases ([58]–[65]).
The judgment also distinguishes ordinary merits review from a challenge to the original decision on administrative-law grounds. NCAT’s task was to reach the correct and preferable decision, and an error in the Secretary’s decision would not itself prevent NCAT from doing that ([26]). This is relevant when a party argues that a defect in the original process ends the merits inquiry, though the Court did not decide Ground 1 in this appeal.
The judgment itself contains no account of later judicial treatment of this decision. It was delivered on 18 September 2026, and the supplied text does not identify any subsequent decisions applying, distinguishing, following or criticising it. A conclusion about later treatment cannot be drawn from this judgment alone.
The Court did refer to earlier authorities for particular propositions. It cited Cahyadi v R for the criminal sentencing totality principle, then explained why that principle did not translate closely to councillor discipline ([50]–[54]). It discussed Health Care Complaints Commission v Robinson in explaining the “Stage 1” and “Stage 2” language used in disciplinary proceedings, while observing that the administrative-law argument advanced before NCAT was misconceived ([26]).
The Court referred to Schwartz v Health Care Complaints Commission concerning the form of a non-lawyer appeal, and to Legal Profession Complaints Committee v Detata concerning differences in authority about whether manifest inadequacy raises a question of law ([5]–[6]). It noted that Godfrey v Wollondilly Shire Council had recently discussed the authorities on the specificity required for an order said to be enforceable through contempt processes ([64]).
Finally, the Court compared NCAT’s orders with two other disciplinary outcomes: Executive Director, Local Government v Robinson (No 2) and Acting Chief Executive, Office of Local Government v Passas (No 2). It cautioned that a small sample cannot safely establish manifest inadequacy by itself. Those decisions provided context, rather than a standalone rule for the result ([65]).
The judgment expressly leaves several matters unresolved. First, it did not decide whether the Court could receive additional evidence in this type of non-lawyer appeal. The parties disputed the issue, but it was unnecessary to resolve given the remittal ([7]).
Second, the Court did not determine Ground 1. It questioned whether the Tribunal’s procedural-fairness reasoning distracted it from the merits task, but concluded that resolving the point would serve no useful purpose after Grounds 2 and 3 succeeded ([39]–[45]). The scope and materiality of that reasoning therefore were not finally decided in this appeal.
Third, the Court did not fix the disciplinary outcome on remittal. It said that further and more up-to-date evidence would be considered, and that a different position might obtain on that evidence ([66]–[70]). The judgment therefore does not establish the sanction NCAT must impose after reconsideration.
Fourth, although the Court rejected the close analogy to criminal totality, it did not provide a comprehensive alternative framework for weighing multiple councillor breaches. It said timing, similarity, victim and language can be relevant, but did not specify how those matters should be weighted in every case ([53]–[56]).
Finally, the Court did not lay down a general rule that non-suspension orders are inadequate for social media abuse. Its conclusion depended on the particular record, including the sustained and deliberate nature of the misconduct, its seriousness and the absence of insight or contrition ([60]–[66]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on or using this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Secretary, Department of Planning, Housing and Infrastructure v Thaler [2026] NSWCA 200
Hearing dates: 10 September 2026
Decision date: 18 September 2026
Before: Leeming JA at [1];
Ball JA at [72];
Price AJA at [73]
Decision: 1. To the extent necessary, grant leave to appeal in terms of the amended notice of appeal filed on 6 August 2026.
2. Appeal allowed.
3. Set aside the orders made by the Civil and Administrative Tribunal on 19 February 2026.
4. Remit the proceedings to the Civil and Administrative Tribunal to determine Councillor Thaler’s appeal from the disciplinary action imposed on 28 July 2025 in accordance with law.
5. Stay the decision of the Secretary made on 28 July 2025 that Councillor Thaler be suspended for a period of six weeks from the date of this judgment.
6.The question of the costs of the appeal to this Court is also remitted to the Civil and Administrative Tribunal, to be determined in light of the outcome of the remitted appeal.
7. Dismiss the notice of cross appeal filed 17 June 2026.
8. Councillor Thaler to pay the Secretary’s costs of the cross-appeal.
9. The parties may within 14 days of today supply any further proposed orders for which they contend, and submissions not exceeding 3 pages in support, in which event the other side may within 7 days thereafter supply submissions not exceeding 3 pages in response.
Catchwords: LOCAL GOVERNMENT – misconduct by councillor – orders made suspending councillor for three months set aside by Tribunal – whether Tribunal misconceived its function – whether misapplication of principle of totality – whether orders made by Tribunal manifestly inadequate – whether proceedings should be remitted to Tribunal for determination in accordance with law
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 5, Sch 5 cl 29
Local Government (General) Regulation 2021 (NSW), r 180
Local Government Act 1993 (NSW), ss 275, 440F, 440H, 440I, 440K, 440L
Uniform Civil Procedure Rules 2005 (NSW), r 51.18
Cases Cited: Acting Chief Executive, Office of Local Government v Passas (No 2) [2017] NSWCATOD 12
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
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
Executive Director, Local Government under delegation from the Secretary, Department of Planning and Industry v Robinson (No 2) [2023] NSWCATOD 81
Godfrey v Wollondilly Shire Council [2026] NSWCA 181
Health Care Complaints Commission v Robinson [2022] NSWCA 164
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Schwartz v Health Care Complaints Commission [2026] NSWCA 162
Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 88
Thaler v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWCATOD 21
Category: Principal judgment
Parties: Secretary, Department of Planning, Housing and Infrastructure (Appellant)
Andrew Thaler (Respondent)
Representation: Counsel:
S Robertson SC with Mr O Bellhouse-Smith (Appellant)
J Mack with Mr T Bagley (Respondent)
Solicitors:
Legal Services Branch, Department of Planning, Housing and Infrastructure (Appellant)
XD Law (Respondent)
File Number(s): 2026/00113709
Publication restriction: Nil
There was and is no dispute that the respondent had engaged in “misconduct” within the meaning of the legislative regime. The misconduct was a series of statements on social media which contained personal attacks on other councillors and other members of the public. The statements were crude, belittling and abusive. Some identified that he was a local government councillor, and some of his comments were directed to conduct within the Council. There was no challenge, nor could there be, to the Tribunal’s conclusions that the statements constituting the misconduct were “offensive, humiliating and disgraceful”.
After following one of the processes mandated under the Local Government Act 1993 (NSW), namely, the preparation of a draft departmental report and providing it to the respondent for his response, the Secretary’s delegate determined that the respondent should be suspended for a period of three months. On appeal, the Tribunal set aside the suspension and in its place ordered that he be reprimanded, that he cease engaging in the misconduct identified in the Secretary’s decision of 28 July 2025, that he make an apology and that he undertake a course of training. This further appeal is brought from those orders. The Secretary seeks that the appeal be allowed, the orders made by the Tribunal be set aside, and in their place the Secretary’s decision be affirmed or alternatively that the matter be remitted to the Tribunal for determination in accordance with law.
The appeal is allocated to the Court of Appeal pursuant to s 48 of the Supreme Court Act 1970 (NSW) because the Tribunal was constituted by an Acting District Court Judge. The appeal is brought pursuant to cl 29(4)(b) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW). It is a “non-lawyer appeal” which lies “as of right on any question of law, or with the leave of the Court, on any other grounds”.
By an amended of notice of appeal filed on 6 August 2026 the Secretary relies upon three grounds, each of which identifies the claimed question of law. This is consistent with UCPR r 51.18(1)(e1) and Schwartz v Health Care Complaints Commission [2026] NSWCA 162 at [3]-[9].
The first two grounds identify questions of law. The third ground is much less obviously within the class of appeals that lie as of right. This ground was that the orders made by the Tribunal were manifestly inadequate. The Secretary’s written submissions acknowledged a variance within the authorities as to whether such a ground gave rise to a question of law (the conflicting Victorian and Western Australian decisions are noted but not resolved in Legal Profession Complaints Committee v Detata [2012] WASCA 214 at [34]-[35]), and invited this Court not to resolve that question but instead to grant leave. The respondent opposed the grant of leave. However, as will be seen, there is a measure of public importance in this litigation. The dispute affects not merely the parties but other persons elected to local government as well as residents in the local government area. Further, as will be seen below, the Secretary has advanced a powerful case that the orders are manifestly inadequate; indeed there are indications in its reasons that the Tribunal was conscious that the orders might be, and be seen to be, an inadequate response.
Section 440F of the Local Government Act defines “misconduct” of a Councillor to mean relevantly “a failure by the Councillor to comply with an applicable requirement of a code of conduct”. Snowy Monaro Regional Council has adopted a code of conduct that relevantly conforms to the model code prescribed pursuant to r 180(1) of the Local Government (General) Regulation 2021 (NSW). It contains obligations including:
“You must not conduct yourself in a manner that is likely to bring the Council or other Council officials into disrepute”: cl 3.1(a);
“You must not conduct yourself in a manner that causes, comprises or involves intimidation or verbal abuse”: cl 3.1(e);
“You must not conduct yourself in a manner that constitutes harassment or bullying behaviour under this Code or is unlawfully discriminatory”: cl 3.1(g);
“You must not harass or unlawfully discriminate against others … on the grounds of age, disability, race (including colour, national, ethnic origin or immigrant status) …”: cl 3.6;
“You must not engage in bullying behaviour towards others”: cl 3.8.
Harassment is defined in cl 3.7 to be “any form of behaviour towards a person that is (a) not wanted by the person (b) offends, humiliates or intimidates the person and (c) creates a hostile environment”. “Bullying” is defined in cl 3.9 to be “any behaviour in which (a) a person or a group of people repeatedly behaves unreasonably towards another person or a group of persons and (b) the behaviour creates a risk to health and safety”.
As Mr Robertson SC, who appeared for the Secretary in this Court but not below, observed, the applicable Code of Conduct is not some bespoke code adopted by the particular council. It is relevantly identical to the model code contemplated by the Act and which is the default position throughout New South Wales pursuant to s 440 and regulations made pursuant to that section.
Section 440H empowers the Departmental Chief Executive to conduct an investigation for the purpose of determining whether the councillor has engaged in misconduct. The investigation may involve the preparation of a departmental report: s 440H(5), and the report is a prerequisite to take disciplinary action: s 440H(6).
Section 440I authorises the Secretary to take disciplinary action against the councillor if satisfied that (a) the councillor has engaged in misconduct and (b) disciplinary action is warranted. Section 440I(2) identifies a range of actions which are defined to be “disciplinary action”, including counselling, reprimanding, an order directing the councillor to cease engaging in the misconduct, a direction to undertake training and, pursuant to s 440I(2)(g), an order suspending the councillor from civic office for a period not exceeding 3 months. Section 440I(3) entitles the Secretary to take into account any previous incidents of misconduct by the councillor, any disciplinary action previously taken against the councillor and any other relevant matters.
(1A) If —
(a) an order for suspension from civic office for misconduct is made (after the commencement of this subsection) against a person under this Act by the Departmental Chief Executive or the Civil and Administrative Tribunal on a referral from the Departmental Chief Executive, and
(b) it is the third or subsequent such order that has been made against the person (including orders made before the commencement of this subsection),
the person is disqualified from holding civic office for 5 years after the date the order takes effect.
The conduct of the respondent giving rise to the first suspension was statements in a video posted on YouTube and various Facebook posts made on 5, 6 and 14 March 2025. Two concerned a fellow councillor. All were crude and disparaging. They were plain cases of breach of the Code of Conduct.
The conduct giving rise to the Cr Thaler’s suspension and appeal to the Tribunal which is the subject of the present appeal also comprised statements made on YouTube videos and Facebook posts. There were five instances of YouTube videos made on 12, 18, 26 and 30 March 2025, and a Facebook post made on 25 March 2025. They concerned different people. Three breaches concerned Cr Narelle Davis, one concerned Cr Lynda Summers and two concerned members of the public, Mr Warren Catton and Mr Oliver Kapetanakos. Once again, all were crude and offensive. They were summarised, uncontroversially, by the Tribunal at [41] – [44] as follows:
40 … As there is no dispute as to the accuracy of the Secretary’s summary of the dates and content of such publications, the Tribunal accepts the accuracy of that outline.
Breaches 3-5 – conduct directed towards Cr Narelle Davis
41 Conduct directed towards Cr Narelle Davis:
(a) on 25 March 2025 at 8.38 a.m., on the page of user profile Andrew Thaler, Cr Thaler republished a post from a Facebook group titled “Snowy Mountain Ratepayers And Residents”. The post Cr Thaler republished included a cartoon image of a goose with a tongue sticking out next to a photograph of Cr Davis. The original caption to the post stated: “THE FLIGHT OF THE RETARDED GOOSE” (breach 3);
(b) in Cr Thaler’s republication of the original post, he published his own caption in which he wrote (breach 4): “I tell you straight, if the retarded goose raises any bullshit Points of Order, or worse, her new Act of Disorder claims … I*’m going to honk. 10 points if you can spot the mad honking goose flapping at me.*”
(c) on 26 March 2025, Cr Thaler published a video to YouTube, on the page of user profile Andrew Thaler ‘Scrappy’ titled “*Tale of the demented goose … and who is Do-Nothing-*Dunshae?#smrc25”. The video is approximately 21 minutes and 44 seconds in length and appears to be self-recorded by Cr Thaler while driving a motor vehicle.
(d) during the video, Cr Thaler referred to his role as a councillor, stating “And I’m a councillor”, “that’s what we do in council. As Councillors”, “I am a councillor, this is the council caravan park”. He said the following regarding Cr Davis:
I wonder if the demented goose and the big fat liar are going to turn up. We need to get rid of the demented goose, that’s my new favourite term, we’ll come to that in a minute who is the demented goose flaps its wings and it honks incessantly no one knows what it’s talking about.
Narelle Davis is the demented goose as somebody’s labelled her written a story about it called the demented goose it’s just perfect she flapped her wings and honked her honker.
The honking goose said honk honk honk I’ve got an alternative motion honk honk it started reading out the alternative motion and of course the mad goose is sitting next to me and so I just read the email on her computer.
Narelle, the demented goose.
Breaches 6 and 7 – conduct directed towards Mr Warren Catton
42 Conduct directed towards Mr Warren Catton:
(a) On 12 March 2025, Cr Thaler published a live video to the social media platform Facebook, on the page of the user profile Andrew Thaler titled “Live from Nimmitabel caravan park” (breach 6). The video is approximately 1 hour and 26 seconds in length and appears to be self-recorded by Cr Thaler. The video is principally directed towards Mr Catton, a member of the public and resident of the Snowy Monaro Regional Local Government Area.
(b) During the 12 March 2025 video, (Cr) Thaler said, amongst other things, the following:
So Warren*’*s bought this new D-Max ute, a little trailer and his wheelchair. NDIS paid for this. NDIS paid for this. NDIS paid for this. NDIS paid for this. See Warren claims to be disabled.
His nickname is “Fat Jesus”**, because he rolls around in his electric chair. And he comes to the stairs, he just gets out of his chair and walks up the stairs. Miracle. “Fat Jesus”
This is what I fundamentally object to with the NDIS funding these people. It just fosters their sense of entitlement. Reinforces it … So you can imagine there*’s now going to be a claim on the NDIS to replace this and all his personal effects. It’*s just such an enormous amount of money on top of the pension, the medical costs, free medical, completely. Anything they want gets done. Community transport … People are paid to come out and cut his toenails. I shit you not. He says to the medical people, “I can’t reach my toes”. People get paid to come and cut his toenails, cut his hair, drive him to town, take him to Canberra to a specialist appointment – all on the taxpayer. He can walk. He’s not actually disabled.
(c) On 30 March 2025, Cr Thaler published a live video to YouTube, on the page of user profile Andrew Thaler ‘Scrappy’ titled “Let’s have a live chat to lay out the facts and correct the rumours” (breach 7). The video is approximately 46 minutes and 9 seconds long and appears to be self-recorded by Cr Thaler. During the 30 March 2025 video, Cr Thaler refers to his role as a councillor, stating “And I’m a, so I am councillor Andrew Thaler on the Snowy Monaro Council”. Cr Thaler further states that, “I will treat every council meeting like it’s my last, because I could be suspended at any minute”.
(d) During the video, Cr Thaler made the following comment about Mr Catton:
“Warren Catton, the fat bastard in the wheelchair, ran over me in his wheelchair. He’s like 220 kilos or something. He is like seriously obese. And for the shoppers at home, obesity is not a disability. Look it up. Google search it: Is obesity a disability? The answer is “no”**. So when people say “Oh, the poor disabled man in the wheelchair”**. No. We call him “fat Jesus” because when he gets to a set of stairs, he just gets out and walks up them. It’s a fucking miracle! He is fat, not disabled.”
Breach 8 – conduct directed towards Cr Lynda Summers
43 On 18 March 2025 Cr Thaler published a video to YouTube, on the page of user profile “Andrew Thaler ‘Scrappy’” titled “Chatting about the Jindabyne landfill disaster of #SnowyMonaro council” (breach 8). The video is approximately 32 minutes in length and appears to be self-recorded by Cr Thaler. During the 18 March 2025 video, (Cr) Thaler made the following comment about Cr Lynda Summers:
And councillor Lynda Summers, the really ugly one from labor … she is just awful. And I*’*ll say it again for the transcript: the really ugly one.
Are we clear, stenographer? Lynda – L-Y-N-D-A Summers – S-U-M-M-E-R-S. Married to Mr Smith, arc Smith, the guy that hit me in Centennial Park when I got spat on by the yes campaigner, who was Lynda Summers*’* friend … so if I*’m not entitled to say what I think about the ugly creature that sits opposite me and sniggers and sneers and interrupts, then there is no free speech in this world. So, take this as said.*
*Now that’*s important, because the office of local government are trying to take disciplinary action against me at the moment and they have gone and transcribed my videos, so I thought I would make it clear for the stenographers.
Breach 9 – conduct directed towards Oliver Kapetanakos
44 During the 30 March 2025 video, Cr Thaler made the following comment after detailing how his invitation to the Snowy Monaro Business Awards had been revoked (breach 9):
“Two days before the event our table booking was cancelled … and that came from an asshole by the name of Oliver Kapetanakos, who is a complete self-centred piece of shit from Jindabyne.”
The proposition that “free speech” extends to speech that is abusive or humiliating or denigrating, which is one point emphasised by the respondent when justifying the abuse denigrating Cr Summers, is wrong. Irrespective of the extent to which freedom of speech may involve confronting people with views opposed to their own, the respondent chose to stand for office, was elected as a councillor and was required to adhere to the Code of Conduct. He was required as a central component of his office to participate in collective decision-making with Cr Summers. He and she may disagree on some or many issues. But each must be able to communicate without intimidation or verbal abuse.
A departmental report was provided in draft concerning the first set of conduct on 17 March 2025. The respondent sought and obtained two extensions for the time to respond to that report, and a response was supplied ultimately on 10 April 2025. The Deputy Secretary ordered the Councillor be suspended for 3 months on 5 May 2025. The respondent appealed to the Tribunal in respect of that suspension, which was confirmed on 10 July 2025: Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 88.
In the meantime a second departmental report was provided to the respondent in draft on 4 June 2025 concerning the further conduct by him in March 2025 relating to different people, to which the Councillor responded, which in turn led to the second suspension by the Secretary on 28 July 2025.
Significantly, that suspension was stayed until 5 August 2025, immediately following the 3 months suspension ordered on 5 May 2025 which had been confirmed by the Tribunal. Once again, the respondent appealed to the Tribunal but the suspension was not stayed. By the time of the hearing, on 10-11 December 2025, the suspension had expired. Nonetheless, in light of a third suspension, by reason of further statements in YouTube videos and Facebook communications in May, July and August 2025, which was made by the Deputy Secretary on 29 October 2025 and which was stayed at the time of the hearing and determination of the present appeal, the status of the second suspension has considerable importance. There was a hearing over 2 days in December 2025 with the respondent being represented by senior and junior counsel, neither of whom appeared in this Court.
After the Tribunal allowed the respondent’s appeal from the second suspension, he abandoned his appeal from the third suspension. The three months’ period for that suspension has since come and gone.
Counsel contended that the hearing should take place in two stages, with the first being to determine whether on administrative law grounds the decision of 5 May 2025 to suspend him was invalid, and if it was not, then to proceed to review the decision on the merits. Paragraphs [45]-[101] of the reasons addressed the various administrative law challenges put forward and concluded, with respect correctly, that even if any were made out, that would not stand in the way of the Tribunal considering the merits of the case. It is desirable to observe that the submissions made by counsel who formerly appeared for the respondent are misconceived in law. They sought to invoke the familiar language of “Stage 1” and “Stage 2” determinations, which is commonly used to describe two phases of disciplinary hearings, the first determining whether the alleged conduct is made out, and if it is, the second determining the appropriate orders (see the discussion in Health Care Complaints Commission v Robinson [2022] NSWCA 164). Counsel who appeared in the Tribunal described their administrative law challenge as “Stage 1”, and said that if it were made out, there would be no occasion for the Tribunal to review the merits. That is just not so. To be fair, counsel appearing for the Councillor in this Court made no attempt to defend it. The task of the Tribunal is to make the correct and preferable decision. Even if some administrative law ground were made out, that would not of itself prevent the Tribunal from making the correct and preferable decision. As much is explicit on the face of the statute which defines “decision” to include a “purported decision”: see Civil and Administrative Tribunal Act, s 5(2). It is difficult to resist the conclusion that a deal of the complexity in this litigation – where the underlying conduct was made on social media and scarcely susceptible of dispute – was introduced by the submissions made on behalf of the respondent.
There were other procedural complexities in the litigation before the Tribunal when a third senior counsel then appearing for the respondent sought a stay of aspects of the litigation and the referral of questions of law: see 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. It is unnecessary to summarise the details.
Thereafter, when considering the merits, the Tribunal found – and there was no challenge to any of the findings – that the breaches were sustained and serious.
The Tribunal addressed the various breaches alleged at [104]–[113].
Concerning breaches 3, 4 and 5, which were directed at Cr Davis, the Tribunal accepted that they were likely to bring the Council into disrepute as well as constituting harassment and bullying behaviour contrary to the Code of Conduct. The reference to “bullshit Points of Order” was “an apparent attempt to ridicule and criticise the manner in which she discharges her functions as a Councillor”, and the Tribunal observed that “Public ridicule of this kind on a social media platform creates a hostile environment”, is “likely to bring the council or other council officers into disrepute” and is apt to discourage participation in debate. The repeated references to Cr Davis being “demented” and a “goose” amounted to harassment insofar as it offended, humiliated and intimidated.
With respect to breaches 6 to 7 which involved conduct directed to Mr Catton, the Tribunal found that these were the most objectively serious forms of harassment in the proceedings. The Tribunal said at [110]:
As is not in dispute, Mr Catton is a person who the NDIS has apparently been accepted by the relevant authority as being entitled to NDIS benefits. Cr Thaler’s statements to and about Mr Catton were grossly and inexcusably offensive. His cruel attempts to publicly humiliate Mr Catton reflect poorly on Cr Thaler. It was submitted by the Secretary that members of the Council should “treat community members respectfully”. The Tribunal accepts that Cr Thaler’s conduct not only damaged his own reputation, but reflected on the Council as a whole, and potentially undermined the disability inclusion plan adopted by the Council. As submitted by the Secretary, by identifying himself in one video as “Councillor Andrew Thaler on the Snowy Monaro Council”, Cr Thaler “tied his statements to the authority of his office”. The Tribunal accepts that doing so aggravated the reputational damage, as members of the public are “entitled to assume that his words carry the imprimatur of the council office”.
In the absence of any evidence providing a rational basis for the respondent’s slurs about Mr Catton’s disability and weight, the “targeted and repeated humiliation” was held to constitute verbal abuse in breach of cl 3.1(e), harassment in breach of cl 3.1(g) and 3.7, and bullying in breach of clause 3.8 of the Code of Conduct, as well as posing a risk to Mr Catton’s emotional and psychological health and safety in breach of cl 3.9(a).
Concerning breach 8, calling a fellow Councillor the “really ugly one from labor” was intended to and likely to offend or humiliate, thereby constituting harassment. Further, his comments to the “stenographer” demonstrated a recognition that his conduct was likely to cause harm or offence. The Tribunal found that it contravened cll 3.1(c), 3.1(e), 3.1(g) and 3.6 of the Code of Conduct.
Concerning breach 9, the Tribunal found that this constituted improper and unethical, aggressive and belittling and constituted harassment, amounting to breaches of cll 3.1(c), 3.1(e), 3.1(g) and 3.6 of the Code of Conduct.
Disposition
162 Division 3 of the LG Act is concerned with “Misconduct”. Section 440F(1)(b) includes as misconduct, a failure by a councillor to comply with “an applicable requirement of a code of conduct”. It is not in dispute that Cr Thaler’s conduct on the dates relied on for the second suspension order constituted misconduct pursuant to s 440F(1)(b). Section 440G of the LG Act empowers a council by resolution at a meeting to formally censure a councillor for misconduct. Section 440H of the LG Act empowers the Departmental Chief Executive to investigate whether a councillor has engaged in misconduct, and, s 440H(5) arrange for a departmental report to be prepared in relation to such investigation. Those procedures were undertaken in this case. Section 440I empowers the Departmental Chief Executive to take disciplinary action for misconduct. Cr Thaler contends that the power was invalidly invoked. The Tribunal has rejected those claims. The power to take one or more of the actions identified in s 440I(2) of the LG Act was enlivened, and remains enlivened. Section 440I(2)(a) to (g) provide a series of actions, arguably of increasing seriousness, the most serious of which involves suspension from civic office for a period not exceeding three months. As the terms of the provision make clear, whether to impose a suspension, and, if so, its duration, involve the exercise of discretion. The Tribunal exercises those discretions de novo, having regard to the totality of the evidence before it. Section 440J of the LG Act provides “alternatives to disciplinary action”. Declining to have regard to the operation of s 275(1A) of the LG Act in this case would, in the Tribunal’s view, involve failing to consider an important component of the statutory scheme with respect to misconduct by a councillor.
163 If, contrary to the Tribunal’s findings, the misconduct of Cr Thaler which resulted in the first suspension order and the misconduct which resulted in the second suspension order were separate and discrete courses of misconduct, provided that the process which resulted in the suspension order was procedurally fair, the undisputed evidence which has been identified above with respect to the latter would justify confirmation of the Secretary’s decision. The Tribunal’s finding that Cr Thaler’s misconduct between 5 and 30 March 2025 constituted a single course of misconduct, and the evidence with respect to the timeline which led to the Secretary’s decision to impose the second suspension order render confirmation of the Secretary’s decision problematic.
164 Having regard to the purpose or object of the statutory scheme, the Tribunal finds that to confirm the second suspension order would, in all the circumstances which have been considered earlier in these reasons, not be appropriate. Cr Thaler having served the second suspension, although the issue has not been agitated, any suspension which the Tribunal might order, however short, thereby exceeding the three month maximum which could be imposed, may be beyond power. If within power, any order involving a suspension would mean that Cr Thaler had two “strikes”, with only one “life” left for the remainder of his term(s) as a councillor, if his appeal against the third suspension order is successful, which could be a period of almost four years. The terms of s 275(1A) of the LG Act involve no discretion - the period of disqualification is five years. Placing Cr Thaler in that position would, in all the circumstances, be more than is reasonably necessary to achieve the objects or purposes of the legislation, and the principles discussed in Doueihi.
165 The dilemma which confronts the Tribunal if it is not to either confirm the Secretary’s second suspension order, or set aside the order and, if empowered to do so, make a lesser suspension order, is that Cr Thaler, and the community, may perceive that, notwithstanding that the misconduct of Cr Thaler which gave rise to the second suspension order was more egregious than the misconduct which gave rise to the first suspension order, Cr Thaler has benefitted from his further and more serious misconduct, and that the Tribunal has failed to discharge its obligation to uphold the recognised principles in relation to the determination of appropriate orders pursuant to s 440L(2) of the LG Act. But for the Tribunal’s findings with respect to a single course of misconduct over a period of 25 days, and the timing of the events which led to Cr Thaler’s suspensions being imposed, such perceptions would be well founded. Cr Thaler’s submissions with respect to the loss of the opportunity to reflect on his misconduct after the first suspension decision was made, the loss of the opportunity to question the “bifurcation” of disciplinary actions with respect to his March misconduct, and the absence of an explanation, or justification for the Secretary having done so are compelling. Although the Tribunal does not criticise the Secretary’s approach to the conduct which led to the second suspension, with the wisdom of hindsight, the decision was procedurally unfair to Cr Thaler. The Tribunal is not satisfied that, had Cr Thaler been afforded procedural fairness, no other decision could reasonably have been made. In all the circumstances, the Tribunal is not persuaded that it should confirm the Secretary’s decision to impose the second suspension.
166 Section 440L(2) of the LG Act enables the Tribunal to take “one or more” of the seven actions identified in the provision. The evidence of Cr Thaler’s misconduct, and the absence of any evidence of remorse, contrition or insight suggests that an order that he be counselled pursuant to s 440L(2)(a) of the LG Act would be unlikely to have any utility.
167 If the Tribunal does not order Cr Thaler’s suspension for any period, a reprimand pursuant to s 440L(2)(b) would be irresistible. In disciplinary proceedings involving medical and legal practitioners, it has been accepted that, in an appropriate case, a reprimand can adequately reflect a number of the objectives of protective orders identified in the authorities to which the Tribunal has referred (Health Care Complaints Commission v Gazal [2023] NSWCATOD 92, and Council of the Bar Association of New South Wales v Mack (No 2) [2025] NSWCATOD 74 respectively). Reprimanding Cr Thaler publicly denounces his misconduct, and the upholding of proper standards and community confidence. Moreover, failing to denounce Cr Thaler’s misconduct by reprimanding him could imply that the Tribunal condones his misconduct. The Tribunal unequivocally denounces Cr Thaler’s misconduct. It is likely that, if Cr Thaler is reprimanded for his misconduct, that, and the other orders of the Tribunal will be made known throughout the Monaro region.
168 An order pursuant to s 440L(2)(c) directing Cr Thaler to cease engaging in his proven misconduct would also be irresistible. The Tribunal does not assume that Cr Thaler would comply with such an order. His failure to do so, of itself, could give rise to further proceedings pursuant to the LG Act, in which his continuing entitlement to be a councillor would be at risk. Breach of such an order by the Tribunal would also potentially expose Cr Thaler to a referral to the Supreme Court to be dealt with for contempt of the Tribunal pursuant to s 73(5) of the CAT Act.
169 Although the Tribunal has no objective basis for believing that any apology that Cr Thaler is ordered to make pursuant to s 440L(2)(d) of the LG Act would be genuinely made by him, the Tribunal will direct Cr Thaler to apologise to each of the victims of his misconduct, in the terms which these orders will specify. The orders reflect the terms of the Secretary’s first suspension decision. Cr Thaler having elected to publish his offensive and hurtful remarks about his victims on social media, it is appropriate that Cr Thaler’s apologies to the victims of his misconduct be published using the same electronic media as he used to publish those comments. The Secretary, or the General Manager of the council may take all appropriate steps to publish Cr Thaler’s apologies on such other social media outlets as the Secretary considers appropriate. The Secretary may cause the apologies, and the Tribunal’s decision to be published in newspapers circulating in the Monaro region and newspapers, such as the Sydney Morning Herald, which have wider circulation. The Tribunal imposes no restrictions on the publication of its decision.
170 Whether such an order would have any utility is questionable, but, given the magnitude of the insensitivity and inappropriateness of Cr Thaler’s misconduct, an order directing him to undertake training pursuant to s 440L(2)(e) of the Act would be appropriate, if only to remind him, and the community, of the seriousness with which the Tribunal views Cr Thaler’s misconduct, and the need for Cr Thaler to mend his ways if he is to have the chance to be able to continue as a councillor. In the absence of the parties agreeing on the form of such training and the provider of it, the Secretary may nominate such training.
171 The Tribunal must consider whether, in all the circumstances, and having regard to the legislative scheme of the LG Act, a raft of orders in these terms adequately reflects the objectives which emerge from the authorities. Albeit not to the extent that a suspension order would, orders in the terms discussed above would remind councillors of the public interest in the maintenance of high standards, and reassure the public at large that the Tribunal is concerned to maintain confidence in the standard of conduct of local councillors. Throughout these reasons, the Tribunal has denounced Cr Thaler’s misconduct as unacceptable in strong terms. Orders in the terms proposed would make plain that such conduct is unacceptable, given that they result in a reprimand being recorded against Cr Thaler, they order him to cease engaging in misconduct which, if he does not, may result in the Secretary taking further action which, given that he already has one strike, and a pending appeal against another, would place his ability to continue as a councillor in serious jeopardy.
172 Cr Thaler having engaged in grossly offensive and humiliating statements towards his victims, and published them on social media, there is a justness in his having to publish his apologies to them utilising that same media. Between the print and electronic media identified in the Tribunal’s order, there is little doubt that Cr Thaler’s constituents, the Monaro community and the broader community will be aware of his misconduct, and the Tribunal’s response to it. If Cr Thaler chooses not to undertake any training which he is directed to undertake, or not to do so bona fide, those matters too, as orders of the Tribunal would have potential consequences pursuant to the LG Act, and pursuant to s 73(5) of the CAT Act.
173 On balance, and accepting that minds could readily disagree, the Tribunal is disposed to make orders in the terms identified above. The Tribunal is comfortably satisfied that the concern advanced by the Secretary, that anything short of an order suspending Cr Thaler would reward his post 17 March 2025 misconduct, is addressed by the cumulative effect of the orders which the Tribunal will make. Put bluntly, although Cr Thaler may have avoided a second “strike”, he remains at grave risk of enlivening s 275(1A) of the LG Act, and, if he fails to comply with the Tribunal’s orders may expedite that risk.
The Tribunal misapprehended its statutory function
1. NCAT acted upon a wrong principle and allowed extraneous and irrelevant matters to affect it by (at [165]):
(a) considering “with the wisdom of hindsight” whether Thaler was not afforded procedural fairness in relation to the decision in respect of which he sought merits review before NCAT (Decision under Review) and finding that he was not; and
(b) considering whether it was satisfied that no decision other than the Decision under Review “could reasonably have been made” had procedural fairness been afforded to Thaler in relation to the Decision under Review and finding that it was not,
in refusing to confirm the Decision under Review.
The question of law sought to be raised by this ground is whether the function conferred upon NCAT by s 440L(1) of the Local Government Act 1993 (NSW) (LG Act) includes a function of deciding whether a decision other than the one appealed from could reasonably have been made on particular contingencies.
The Tribunal misapplied the “totality principle” from criminal sentencing to the disciplinary proceedings before it
2. NCAT acted upon a wrong principle by:
(a) at [148], proceeding on the basis that for the purposes of considering what disciplinary action (if any) of the kind referred to in s 440I of the LG Act is warranted in relation to certain misconduct there is a relevant dichotomy between “discrete acts” of misconduct and acts that form part of a “single episode” of misconduct;
(b) at [163], treating confirmation of the Decision Under Review as “problematic” because, in the Tribunal’s view, “on balance”, Thaler’s relevant misconduct “can be seen as part of a single episode of misconduct” (see [149]).
The question of law sought to be raised by this ground is whether the “totality principle” contemplates a dichotomy between discrete acts of misconduct and acts that form part of a single episode of misconduct.
The NCAT’s orders as to disciplinary action were manifestly inadequate
3. NCAT’s orders as to disciplinary action were manifestly inadequate.
Particulars
In circumstances where NCAT correctly held:
(a) at [151], that Thaler relevantly engaged in misconduct that was “offensive, humiliating and disgraceful”;
(b) at [165], that Thaler’s Misconduct was “more egregious” than the conduct in respect of which Thaler had previously been suspended;
(c) at [166], that Thaler had not demonstrated any “remorse, contrition or insight”,
such that disciplinary action less onerous than suspension fell outside of the range of disciplinary action available lawfully to be imposed by NCAT in the exercise of its discretion.
The question of law sought to be raised by this ground is whether the disciplinary action that NCAT imposed was outside the range of action that it was authorised by ss 440I(2) and 440L(4) of the LG Act to impose.
The notice also included “Ground 4” which sought for this Court to re-exercise the power of making disciplinary orders, or alternatively that the matter be remitted to the Tribunal.
I shall address grounds 1, 2 and 3 in turn.
This ground is directed to the Tribunal’s reasoning at [165], which seems to proceed on the basis that it was not satisfied that suspension was the only disciplinary order which could reasonably be made (see in particular the last sentence of the paragraph).
It is not entirely clear that this ground addresses the point sought to be made by the Tribunal in [165]. At least one of the Tribunal’s concerns was that it would appear wrong to make a lesser suspension order (or impose some other lesser sanction) when the misconduct giving rise to the second suspension was more egregious than the first. The Tribunal’s response was that properly characterised the conduct was a single course of conduct; hence the statement, “But for the Tribunal’s findings with respect to a single course of misconduct over a period of 25 days, and the timing of the events which led to Cr Thaler’s suspensions being imposed, such perceptions would be well founded”. That the respondent’s misconduct should be characterised as a single course of conduct was reinforced by the consideration that Cr Thaler did not have time to reflect on his conduct following the first suspension. There was “procedural unfairness” in retrospect because, given the way things developed (the bifurcation of disciplinary actions), the conduct was treated as if it was two separate events or series of events, when in reality it was only one. That in turn led the Tribunal to refer the authorities dealing with when a denial of procedural fairness might not matter, because no other decision could reasonably be made.
In light of what was said, it is as well to be clear that no part of the respondent’s complaint in this Court was any denial of procedural fairness in the conventional sense of being denied an appropriate opportunity to be heard in relation to the proposed course of action. The Tribunal was referring to “procedural fairness” in a different sense, based upon a perceived unfairness in treating Cr Thaler’s conduct as something other than a single course of conduct because of the procedure that was adopted – that is, the bifurcation of the investigation of that conduct, leading to separate disciplinary actions in respect of it. It is arguable that the reasoning at [165] distracted the Tribunal from its task.
Insofar as the Tribunal was concerned to address whether some other suite of disciplinary action might reasonably have been imposed, that too is foreign to and apt to distract from the question posed on appeal, which is the correct and preferable decision.
It is however far from clear that the question of law identified in ground 1 arises on the Tribunal’s reasoning. It will be clear from the above that the essential reasoning more naturally falls within the scope of ground 2.
Further, this ground gives rise to a question which is quite arid. That comes about because [164] of the Tribunal’s reasons appears, on its face, to be dispositive. In that paragraph the Tribunal expressed a conclusion that the suspension was “more than reasonably necessary” to achieve the objects or purposes of the legislation. One of the respondent’s submissions opposing this ground was that any error in [165] could not be material, because the reasoning in [164] was sufficient to sustain the orders. It is sufficient in light of the following two grounds merely to note that those submissions have considerable force.
accepting that minds could reasonably differ, the Tribunal finds that, on balance, the misconduct which resulted in Cr Thaler’s second suspension can be seen as part of a single episode of misconduct which commenced on 5 March 2025 and continued until 30 March 2025.
That characterisation of the respondent’s conduct caused the Tribunal to conclude that the Secretary’s decision was “problematic” at [163] which is reproduced above.
This is a false issue. The position is as follows.
In criminal sentencing, it is not uncommon for an offender to commit a number of offences within what may be called a “single episode of misconduct”. An offender who steals a car at night, then uses it to crash into a store, and then steals items from the store, and speeds away, may commit a count of theft of the vehicle, damage to property, theft of the goods from the store, and a driving offence. But in a real sense, all four offences are part of a “single episode of misconduct”. Whatever sentences be imposed for each offence, and whether they be individual sentences or a single aggregate sentence, it will be necessary for the court to apply the principle of totality to the total effective sentence. Before the availability of aggregate sentencing, sentencing in a case such as that posed above gave rise to complicated questions of sentencing practice. It may make no difference to an offender if he is sentenced to 4 consecutive sentences of 3 months’ imprisonment, or 4 sentences each of 12 months’ imprisonment all of which are to be served concurrently; from the offender’s point of view, all that matters is the total effective sentence. However, where the offending arises out of a “single episode of conduct” it is usual and appropriate for sentences to be imposed which are themselves substantially concurrent. This is the force of the familiar statement of principle in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:
There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.
The point of the foregoing is to observe that this does not translate, at least not in any closely analogous way, to the discretion to impose disciplinary action for misconduct under the Local Government Act.
First, the purposes of criminal sentencing are not identical to the purposes of orders for disciplinary action under the Local Government Act.
Secondly, each contravention of the Code of Conduct is misconduct. It is true that the misconduct committed by the respondent is of a similar kind. It is also true that breaches 3, 4 and 5 all of which relate to Cr Davis and refer to the derogatory description of her as “demented” and a “goose” and which take place on consecutive days might be seen as closely related instances of misconduct. That proximity in time, and similarity in choice of victim and language, are relevant in determining the appropriate disciplinary response. In a sense the problem may resemble that arising in criminal sentencing where there is a single episode of misconduct. But any analogy is at best a loose one.
Thirdly and in particular, s 275 imposes a five year period which is based merely on the number of suspensions. Section 275 does not distinguish between a suspension for a day or a suspension for 3 months. This is utterly different from the decision to impose sentences which are served concurrently or consecutively in criminal sentencing. This exposes the danger of adopting a principle derived in imposing criminal sentencing to the different context of disciplinary responses to misconduct under the Local Government Act.
It was of course relevant when determining the appropriate disciplinary action to have regard to previous instances of misconduct and the disciplinary action earlier imposed. But otherwise the characterisation of the offending as a “single episode of misconduct” was a distraction from the task. And fairly read, that characterisation was an aspect of the dispositive reasoning of the Tribunal in [163]. That reasoning proceeded on the basis that if the present charges were a separate course of conduct, there was no difficulty with the disciplinary action imposed, but because they were part of the same course of conduct in March 2025 which had given rise to the first suspension, that made the Secretary’s decision “problematic”.
In short, whether or not the Secretary’s decision was problematic did not turn on whether or not the charges amounted to part of the same course of conduct as the earlier charges. This went to a central aspect of the dispositive reasoning of the Tribunal.
This ground is made out.
The respondent’s misconduct was serious. Part of the essential core of the role of a local government councillor is to participate in collective decision-making in the range of decisions entrusted to local government, which inevitably involves the resolution of different demands for land use and the spending of public money and resources. If other councillors, council employees or members of the public cannot, or feel that they cannot, exchange views without being subject to verbal abuse, then that is antithetical to an essential element of the role. And if members of the public think that the councillors are incapable of performing their role, which relate to important matters of local concern, then that will tend to bring the institution into disrepute.
The following points may be made about the respondent’s misconduct.
First, the respondent’s misconduct was directed to two councillors and two members of the public. It was not a single oral encounter, but a result of a deliberate intention to make available the respondent’s views to the consumers of social media, into the indefinite future.
Secondly, some of the misconduct was committed at a time when the respondent knew that the Secretary had prepared a report on particular charges and had provided it to him in draft, and indeed the mentions of that process in his YouTube video of 18 March 2025 make it clear that even then the respondent failed to see the seriousness of his misconduct.
Thirdly, there was no redeeming feature in the misconduct. It was not remotely humorous, nor did it serve some purpose genuinely believed in by the respondent. If it served any useful end, it appears to have been driven by a desire to attract attention on social media platforms from those who are attracted to verbal abuse.
Fourthly, the Tribunal itself proceeded on the basis that the disciplinary response it favoured might appear inadequate. Thus the Tribunal doubted that the order to apologise would have utility and be genuine ([169]-[170]).
Fifthly, there is a difficulty in the Tribunal’s reliance on the order under s 440L(2) to cease engaging in the misconduct. It is far from clear that the order as made by the Tribunal has the specificity to sustain a charge of contempt. The authorities were recently discussed in this Court in Godfrey v Wollondilly Shire Council [2026] NSWCA 181.
It is necessary to draw these strands together. On the evidence as it stood before the Tribunal, the misconduct was at the more serious end of the spectrum of verbal abuse. It was also sustained and deliberate as opposed to a statement made on the spur of the moment. It was made in conscious disregard of the seriousness of earlier misconduct and it was unaccompanied by any suggestion of any insight or contrition. In those circumstances, a reprimand, and order to cease, an apology and an obligation to undertake training were a wholly inadequate response. It is unsafe to infer a conclusion of manifest inadequacy (or for that matter manifest excess) from a small sample, but for what it is worth it is wholly out of line with other decisions, including [2023] NSWCATOD 81 (where the conduct was of the same nature, or worse insofar as it involved physical abuse, but the councillor was suspended for three years) and [2017] NSWCATOD 12 (where the misconduct was much less severe, and disqualification ordered).
For those reasons, the Secretary has succeeded in establishing material error in the decision of the Tribunal. However, I would accede to the submissions of the respondent that the appeal from the disciplinary action imposed by the Secretary be reconsidered by the Tribunal according to law. That reconsideration will take place on the basis of further and more up to date evidence than had previously been before the Tribunal.
Setting aside the orders made by the Tribunal leaves in place an undetermined appeal from the Secretary’s order suspending Cr Thaler which, without more, would engage s 275. When this was raised in Court, the Secretary confirmed that it would be appropriate, in that event, for this Court standing in the shoes of the Tribunal to make an order staying the Secretary’s decision pursuant to s 440L(3A). That order will mean that any disqualification will not have effect until such time as the appeal is finally determined or withdrawn.
However, if the order were merely made in those terms, then there would be no incentive for Cr Thaler – who has already been suspended for the entire period of the order from which his appeal is brought – to prosecute the appeal. It was implicit in the parties’ stance that the remitter sought by the respondent would be prosecuted with reasonable expedition. The appropriate course is to make an order staying the Secretary’s decision for a period of 6 weeks, within which time it is to be expected that the respondent will reagitate his appeal and, if that occurs, it will prima facie be appropriate for the stay to be continued by the Tribunal on terms that it is prosecuted and resolved with reasonable expedition.
Although the Secretary has succeeded in setting aside the decision of the Tribunal, in a real sense, it is not possible as yet to know the outcome of the appeal to this Court. Following the further hearing in the Tribunal, there are likely to be only two possible outcomes: either (a) a confirmation of the suspension imposed by the Secretary or (b) disciplinary action falling short of the suspension which will therefore be comparable to that imposed by the Tribunal. It is only because I have acceded to the respondent’s submission to remit to the Tribunal that the ultimate outcome cannot presently be known. In those circumstances, I favour remitting also the issue of costs in this Court to the Tribunal so that the discretion may be exercised when it is known whether the Secretary’s appeal has caused the reinstatement of the respondent’s suspension, or alternatively has not as a matter of substance altered the outcome. I appreciate that in this appeal, the Secretary was conscious of broader considerations concerning the operation of the regime, but they do not detract from remitting the question of costs to the Tribunal which will be in a better position than this Court to exercise it. The parties have not been heard as to that course and either is free from 14 days of today to apply for further or other orders concerning the costs of this appeal.
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Secretary, Department of Planning, Housing and Infrastructure
Thaler
[2026] NSWCA 181
[2026] NSWCA 162
[2025] NSWCATOD 74
Leave granted to the extent necessary; appeal allowed; NCAT’s 19 February 2026 orders set aside; the disciplinary appeal remitted to NCAT for determination according to law; the Secretary’s 28 July 2025 suspension decision stayed for six weeks; appeal costs remitted to NCAT; cross-appeal dismissed, with Thaler to pay the Secretary’s cross-appeal costs ([71]).
In the event that one or more grounds of appeal were made out, the Secretary invited this Court to re-exercise the discretion. To that end the Secretary sought to read three affidavits updating the position subsequent to the decision. The respondent opposed that course on two bases. The first was that there is a dispute concerning whether, in a “non-lawyer appeal” in which the Court has not been asked pursuant to cl 29(7)(a) to “deal with the appeal by way of a new hearing”, there is power to receive additional evidence. By way of overview, on the one hand there is textual support for the absence of power from its specific conferral in paragraphs (4)(a) and (7)(b) of cl 29, neither of which is applicable to the present appeal, while on the other hand, arguments based upon the expressio unius principle are relatively weak, and it might seem strange for there to be an express conferral of power of cl 29(8) to “make such orders as [the Court] considers appropriate” without an ability to receive additional evidence in an appropriate case. In light of what follows it is unnecessary to resolve that debate and therefore it is inappropriate to do so.
Separately from the question of power, the respondent submitted that it would be inappropriate for this Court to receive further evidence. He said that there was additional evidence that he would wish to adduce of his “successes on Council” including advocacy for certain developments. He also said that the material underlying the “third suspension” was not before this Court, and that regard to it was required by some extension of, or analogy with, the principle of totality.
For the reasons which follow, I would allow the Secretary’s further appeal and set aside the orders made by the Tribunal. Notwithstanding that it was for the parties to include in the appeal books the materials necessary to determine the appeal, including such materials as might be contingently required if the appeal were allowed, I am minded to accede to the respondent’s submissions and remit the proceeding to the Tribunal for determination in accordance with law.
Section 440K provides that while suspended, a councillor is not entitled to exercise any of the functions of the civic office and is not entitled to any fee or remuneration or payment of expenses or use of council facilities to which he or she would be entitled as the holder of the civic office. The period of the suspension commences seven days after the service of the order on the councillor. That delay permits a councillor to bring an appeal pursuant to s 440L to the Tribunal. The Tribunal is empowered to stay any decision until the determination of the appeal (s 440L(3)), and in that event, “the disqualification ceases to have effect or does not take effect (as the case requires) until such time as the appeal is finally determined or withdrawn”: s 440L(3A). The Tribunal is empowered on hearing the appeal to (a) confirm the decision or (b) amend the decision or (c) set aside the decision and substitute a new decision. The amended or substituted decision has effect has if it had been made in that form by the Secretary.
Highly significant for the present case is s 275(1A). That provides:
It is not necessary, in light of the fate of grounds 2 and 3, to resolve ground 1, and no good purpose would be served by doing so.
One final point should be made clearly. There is no implied constraint upon the Secretary’s power to initiate disciplinary proceedings or to impose orders of suspension so as to preserve some “time for reflection” between a first and second suspension, or a second and third, notwithstanding the consequences of engaging s 275(1A). That does not mean that the effect of s 275(1A) should be disregarded when prosecuting disciplinary action or determining appropriate orders. Nor does it mean that decisions about formulating how instances of misconduct are acted upon are unfettered or can be ignored when the disciplinary response is determined. In this Court, the Secretary acknowledged that “[w]e accept here, as we accepted before the Tribunal, that considerations of totality are considerations that can and should be taken into account in relation to disciplinary action and, in particular, ensuring that, as a matter of substance or form, a councillor is not being dealt with twice in relation to, in effect, the same conduct”, even if it is treated as separate items of misconduct.
I conclude that this ground is made out. There should to the extent necessary be a grant of leave, in light of the seriousness of the respondent’s misconduct and the inadequacy of the disciplinary action imposed. That is not to say or imply that when the matter is remitted to the Tribunal, it is possible that, on evidence then to be provided, a different position might obtain.
I propose the following orders:
To the extent necessary, grant leave to appeal in terms of the amended notice of appeal filed on 6 August 2026.
Appeal allowed.
Set aside the orders made by the Civil and Administrative Tribunal on 19 February 2026.
Remit the proceedings to the Civil and Administrative Tribunal to determine Councillor Thaler’s appeal from the disciplinary action imposed on 28 July 2025 in accordance with law.
Stay the decision of the Secretary made on 28 July 2025 that Councillor Thaler be suspended for a period of six weeks from the date of this judgment.
The question of the costs of the appeal to this Court is also remitted to the Civil and Administrative Tribunal, to be determined in light of the outcome of the remitted appeal.
Dismiss the notice of cross appeal filed 17 June 2026.
Councillor Thaler to pay the Secretary’s costs of the cross-appeal.
The parties may within 14 days of today supply any further proposed orders for which they contend, and submissions not exceeding 3 pages in support, in which event the other side may within 7 days thereafter supply submissions not exceeding 3 pages in response.
BALL JA: I agree with Leeming JA.
PRICE AJA: I agree with Leeming JA.