Thaler v Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 63

1. No guidance is provided in s 440L of the Local Government Act as to the matters which the Tribunal ought to consider in deciding whether to stay the taking of disciplinary action pending the outcome of the appeal. In his submissions the respondent referred to the matters set out in s 60 of the Administrative Decisions Review Act 1997 (ADR Act) (and as summarised by the Appeal Panel in QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113) which the Tribunal is required to consider when determining a stay application made under that section. These, however, are not administrative review proceedings under the ADR Act but are an external appeal under s 79 of the NCAT Act. That is not to say, however, that those principles may not provide some guidance.
2. The relevant legal principles for determining a stay application in an appeal were recently set out by Leeming JA in Bolton v WAM Active Ltd [2025] NSWCA 81. These are summarised below.
3. The onus lies upon the appellant to demonstrate that a proper basis for a stay that is fair to all parties has been made out: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694. The court or tribunal has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh the balance of convenience and the competing rights of the parties before it.
4. The court or tribunal does not, generally speaking, speculate as to the strength or otherwise of the prospects of success of an appeal, although it may make some preliminary assessment about whether an appellant has an arguable case: see Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [18]- [19]; Qasim v PF 473 Pty Ltd [2024] NSWCA 248 at [10].

1. The alleged conduct of Councillor Thaler which led to the taking of disciplinary action against him concerns a 55 minute video he uploaded to YouTube on 5 March 2025, a further video posted on Facebook on 6 March 2025, a written post on Facebook on 12 March 2025 and comments made when sharing a post on Facebook on 14 March 2025. In the videos and written posts Councillor Thaler made comments about another Councillor and a member of the Council's staff.
2. The respondent was satisfied, based on the content of the videos and posts, that Councillor Thaler had engaged in misconduct as he had breached various provisions of the Council's Code of Conduct. In brief, the particular findings were that Councillor Thaler was in breach of various provisions of the Code of Conduct by making publicly available social media comments:

(a) which are reasonably likely to have brought Council officials into disrepute;

(b) which are reasonably considered improper and/or unethical

(c) which are reasonably considered to constitute intimidation and/or verbal abuse;

(d) which are reasonably considered to constitute harassment, bullying and/or unlawful discrimination;

(e) which could compromise the psychological safety of the affected individuals;

(f) which are reasonably considered to constitute pressuring Council staff in the performance of their work, or recommendations they should make; and

(g) which are reasonably considered to constitute being overbearing or threatening to Council staff.

1. The grounds of appeal as articulated by Councillor Thaler are that:

(1) the decision was made without regard to his rights at law;

(2) the decision was made without lawful authority;

(3) the investigation was not carried out confidentially which led to a compromised decision;

(4) the decision maker was affected by personal bias;

(5) the decision maker is alleged to have participated in a conspiracy with the complainants.

1. Councillor Thaler submits that he has good prospects of success on the appeal. Councillor Thaler particularly refers to ground 2 and states that the power to discipline him was not a properly delegated authority. He submits that the power of the Departmental Chief Executive cannot be delegated to a lower authority. He also states he was not afforded justice in the process.
2. Councillor Thaler has provided no evidence to support the matters he alleges in his appeal grounds concerning bias, conspiracy, lack of confidentially etc. In relation to his arguments concerning the lack of power to take disciplinary action against him, while he acknowledges the statutory scheme, he infers that a public servant does not have the lawful authority or power to suspend him. However, he refers to no substantive legal argument or authorities in this regard.
3. The respondent has provided a copy of the relevant signed delegation of power and details of the alleged conduct along with the processes of determination engaged in by the respondent which includes submissions and responses from Councillor Thaler. The respondent submits that the Tribunal should not be satisfied that the grounds of appeal are reasonably arguable.
4. On the basis of the material available and the written and oral submissions of the parties along with my examination of the disciplinary decision and the grounds of appeal, my preliminary assessment is that the appeal does not have substantial prospects of success. I am also not satisfied that there are other matters which, in the interests of justice, mean that the decision ought to be stayed.
5. I note that all time frames in relation to the disciplinary action taken by the respondent are relatively short. As noted above, Councillor Thaler's suspension from office commenced on 13 May 2025. The suspension itself is for three months, the maximum period permissible under s 440I(2)(g) of the Local Government Act. Prior to the commencement of the hearing of the stay application, the parties agreed that the hearing of the substantive matter would be in two weeks' time on 30 May 2025. The substantive appeal will thus be heard expeditiously. The short time frames involved mean that these issues insofar as they relate to the stay application are finely balanced. (At the request of Councillor Thaler the hearing date was postponed to 6 June 2025 after I refused the stay application.)
6. Councillor Thaler requests that the disciplinary orders be stayed to enable him to attend a Council meeting on 15 May 2025 at which he states a decision on the employment of a new Chief Executive Officer will be made. He states that this is a decision of great importance which he should be able to participate in. He also refers to motions he intends to put to the Council meeting and to budgetary and other matters with which Council is presently engaged.
7. Councillor Thaler argues that, as a democratically elected Councillor, he should be able to attend to his duties. He refers to a "split" in the Council and states that, if he is unable to represent the interests of the people who elected him, and by extension the wider community, those people will be deprived of having their issues brought to the attention of the Council for action and resolution. Furthermore, there will be no way to compensate the people whose issues are not therefore put to the council, not debated and not acted upon.
8. While I accept that electors have an expectation that the person they voted for will be able to represent their interests at Council, that expectation is subject to certain limitations, including whether there are countervailing factors which must be balanced against that expectation. I also note that the suspension is for a three month period only which means that, even if he is unsuccessful in the appeal, Councillor Thaler will be able to resume his duties within a relatively short period of time.
9. Councillor Thaler states that no detriment will be suffered by the Council if the stay is granted. He also states that he poses no threat to anyone and his conduct has been mischaracterised.
10. For his part the respondent refers to the fact that on 6 February 2025 the Minister for Local Government issued the Council with a performance improvement order (PIO) made under s 438A of the Local Government Act. The conduct upon which that order was based included 19 misconduct referrals and allegations against Councillor Thaler in October and November 2024. The respondent states that on 10 February 2025 Councillor Thaler signed an undertaking as required by the PIO that he would refrain from doing certain things which included making or implying allegations of wrongdoing against any Council official, making statements that a reasonable person may consider offensive, abusive, harassing, threatening or disrespectful, about or to other councillors or Council staff members and that he would abide by the Council's Code of Conduct.
11. While Councillor Thaler suggested at the stay hearing that he had some concerns about whether the video footage provided to the Tribunal by the respondent is the same as that he in fact uploaded to YouTube and posted on Facebook, it is difficult to see how he can deny the conduct that is depicted in the videos and written posts. Like the respondent, I am concerned that, less than a month after he signed an undertaking about his behaviour, Councillor Thaler took the actions he did and that he will continue to do so. This is particularly so as he acknowledged at the commencement of the 5 March 2025 video that that what he was about to say would breach the Council's Code of Conduct.
12. I am satisfied that there are reasonable concerns that the persons at whom Councillor Thaler takes aim in his comments may have been caused harm and may be apprehensive about any future conduct. I am also satisfied that the Council has a duty regarding the health and safety of councillors and employees. Safety concerns weigh heavily against granting a stay.
13. Overall, given the safety concerns raised by the evidence and the submissions of the respondent and the imminent hearing of the substantive application, despite Councillor Thaler's desire to fully perform his role as councillor, I am satisfied that the balance of convenience weights against making an order to stay the operation of the disciplinary decision.

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.