Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 111;

1. As noted by the Tribunal in Thaler (May 2025 stay application) at [5] and Thaler (No 1) at [19]-[20], Cr Thaler's application is an external appeal under section 79 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and not an application for administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Hence, section 60 of the ADR Act is of no application but may nevertheless provide some guidance.
2. Section 104L(3) of the LG Act gives the Tribunal a general discretion to stay the decision of the Secretary until such time as the Tribunal determines an appeal lodged under section 440L(1) of that Act. Guidance as to how that discretion is to be exercised is not provided in the LG Act. However, as noted by the Secretary, the lodging of an appeal under section 440L(1) does not automatically give rise to a stay. On the contrary, the starting point is the continued operation of the decision of the Secretary, unless there is an application for a stay and the Tribunal, in its discretion, determines that application.
3. It is accepted that factors relevant to the exercise of a general discretion such as that provided in section 104(3) may be implied by the subject-matter, scope and purpose of the statute: Minister v Peko Wallsend (19865) 162 CLR 23 at 39-40. Section 7 of the LG Act sets out the purposes of the Act which includes providing the legal framework for a system of local government for NSW and setting out the responsibilities and powers of councils, councillors and others that constitute the system of local government: LG Act section 7(a) and (b). In this regard, Chapter 14 of the LG Act contains provisions relevant to the conduct of councillors in carrying out their functions under that Act. This includes disciplinary action being taken against a councillor for misconduct as defined in section 440F of that Act which includes a failure by a councillor to comply with an applicable requirement of a code of conduct: LG Act section 440F(1)(b).
4. In Office of Local Government v Neville [2018] NSWCATOD 31 (Neville), at [36], having noted that proceedings brought under Part 3 of Chapter 14 of the LA Act are disciplinary in nature, the Tribunal went on to observe:

... [as with] professional disciplinary matters, the Tribunal's jurisdiction is at least in part protective, both of the public and the maintenance of high standards in the ranks of the particular occupation, here local councillors.

1. These observations were followed in the recent decision of Deputy President Seiden SC DCJ in 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) at [48].
2. While these observations were made in the context of a referral to the Tribunal under Part 3 of Chapter 14 (Honesty and disclosure of interest), in my opinion, the same applies to an appeal lodged under Division 3 (Misconduct) of Part 1 in that Chapter.
3. In Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, the Court of Appeal emphasised that the onus is on the party seeking a stay order to demonstrate that there a proper basis for a stay that is fair to all the parties has been made out. In other words, in the exercise of its discretion as to whether at stay should be granted or not granted, a court or tribunal will weigh the balance of convenience (or balance of hardship), together with the competing rights of the parties before it.
4. The court or tribunal does not, generally speaking, in determining an application for a stay speculate as to the strength or otherwise of the prospects of success of an appeal but may make some preliminary assessment about whether the appellant has an arguable case: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [18]- [19].

1. Cr Thaler does not dispute the conduct the subject of the disciplinary action. That is, he does not dispute that he made the comments he is alleged to have made. He asserted that he is a communicator and an effective member of the Council. He said a lot of demands were made on him to make videos, which he finds easy to do.
2. In his written and oral submissions in support of his application for a stay, Cr Thaler made numerous assertions which can conveniently be summarised as follows:

(1) This is a false disciplinary action that is based on an ongoing agenda to have him removed as a councillor;

(2) The Secretary has provided no evidence to support the assertion that he poses a safety risk to fellow councillors;

(3) The disciplinary action is unlawful as disciplinary action was already taken regarding allegations of misconduct in the initial decision and order of 4 May 2025 - the 28 July 2025 decision and order covers the same period which means that he is being subjected to double jeopardy - if not entirely, at least for the conduct that occurred on 12 and 14 March 2025;

(4) There was no investigation prior to the decision of the Secretary, who ignored the wider context in which the comments the subject of misconduct were made;

(5) The Code of Conduct is out of date - the Minister has said the Code is broken and is being re-written - therefore there is a cloud over it and therefore no findings of a breach of the Code could be made; and

(6) There is no Office of Local Government - it was abolished by the NSW Governor on 2 April 2019 - hence there can be no valid delegation by the Secretary to the Chief Executive of the Office of Local Government.

1. The respondent opposes a stay being granted and provided the following in response to the assertions made by Cr Thaler:

(1) The decision to take disciplinary action was based upon a detailed departmental report that considered submissions that were made by Cr Thaler and his solicitor. Nor has Cr Thaler provided any evidence that the Secretary is biased against him;

(2) Cr Thaler's comments the subject of the departmental report are such that they are offensive and have caused serious harm;

(3) Cr Thaler is not subject to double jeopardy as the conduct the subject of the 28 July 2025 decision and order of the Secretary is conduct of Cr Thaler that is directed towards different persons;

(4) Section 440(5A)(c) of the LG Act expressly permits the Secretary to arrange a departmental report without an investigation - in this case, it was the Manager, Investigations who prepared the report;

(5) On 10 February 2025, Cr Thaler signed an undertaking that he would amongst other things:

a) refrain from making statements, orally or in writing, that a reasonable person may consider offensive, abusive, harassing, threatening or disrespectful about or to other councillors or Council staff members,

(6) The submissions of Cr Thaler regarding there being no Office of Local Government and no valid delegation are misconceived.

1. As I noted several times during the hearing, it is not my role on this stay application to determine the matters raised by Cr Thaler. However, they were matters that were appropriately addressed and determined at a hearing of his appeal, should he decide to press them. Yet based on the relevant provisions of the LG Act and the submissions and oral arguments of Cr Thaler and the Secretary my preliminary view is that Cr Thaler's grounds of appeal are not strong.
2. At the hearing of the stay, with the consent of Cr Thaler and the Secretary I made an order listing Cr Thaler's substantive appeal for hearing on 2 October 2025 and orders for the filing and serving of any further evidence and submissions prior thereto. This date was chosen as it was the first suitable date for Cr Thaler.

1. Cr Thaler has not submitted that, unless a stay is granted, that he personally will suffer a detriment including any financial detriment. That is, on the material before the Tribunal at the time of hearing Cr Thaler's stay application, on the expiry of the suspension or an earlier successful determination of his appeal, Cr Thaler's civic office will be restored. However, as with all councillors within NSW, that restoration will again become subject to the provisions of the LG Act.
2. Cr Thaler submits that it is those constituents who voted for him at the 2024 Council elections are the ones who will suffer a detriment as he is unable to represent them at the upcoming monthly Council meeting and those that follow during the remainder of this second period of suspension. In support of this submission Cr Thaler relied on 11 references, one of which was from a fellow Councillor, Cr Williamson, and a person who was not a resident of the Snowy Monaro Reginal Council.
3. I have placed very little weight on these references as they do not specifically address Mr Thaler's stay application. Nor do they make any reference to the specific findings of misconduct in respect of comments of Cr Thaler that were the subject of the Secretary's 28 July 2025 decision and order, or the Secretary's earlier decision and order of 4 May 2025. At the hearing of his stay application, Cr Thaler openly acknowledged that in obtaining the references, he did not provide any referee with any information about the findings of misconduct or the content of the comments on which these findings were made.
4. At the same time, I accept that those who voted for Cr Thaler at the 2024 Council elections have an expectation that he will represent their interests at the Council, including Council meetings. Those who voted for the remaining 10 councillors have the same expectation of their respective councillors.
5. These expectations, as noted by the Tribunal in Thaler (May 2025 stay application) at [19], are subject to certain limitations, including whether there are countervailing factors which must be balanced against that expectation.
6. In this case, there is no evidence of any specific interests of those who voted for Cr Thaler being disadvantaged if a stay is not granted.
7. At the same time, given the protective nature of the Tribunal's jurisdiction it is in the interests of those councillors and rate payers to whom the comments of Cr Thaler were directed that the suspension remains in force pending the determination of Cr Thaler's appeal or the expiry of the suspension order.
8. In my opinion, that interest should be given considerable weight as Cr Thaler does not dispute the conduct the subject of the findings of misconduct in the departmental report and he has not at any time said or indicated that he would cease engaging in conduct of this kind if a stay were to be granted. On the contrary, Cr Thaler appears to believe that the conduct of posting and uploading on social media comments of the kind he made that were specifically directed towards councillors and rate payers is acceptable, and in his appeal, it is the findings of misconduct that he challenges. I make no findings in this regard as this is a matter for determination in his substantive appeal.

1. As noted, this is an application for a stay of the decision of the Secretary, made on 28 July 2025, to take disciplinary action against Cr Thaler for misconduct by an order that suspended him from civic office for three (3) months.
2. For the reasons set out above, in summary my findings are:

(1) Having accepted that he engaged in the conduct the subject of the findings of misconduct in the decision and order of the Secretary, Cr Thaler's grounds of appeal, as articulated in this stay application, my preliminary view is that these grounds are not strong;

(2) Cr Thaler's appeal has been listed for hearing at the earliest date convenient to Cr Thaler being 2 October 2025. Accordingly, there is not a long delay in the substantive appeal being heard; and

(3) On balance, given the early hearing date of Cr Thaler's appeal and the protective nature of the Tribunal's jurisdiction to protect the interests of councillors and rate payers together with the content of the comments made by Cr Thaler that are the subject of his appeal against the decision and order of the Secretary, these interests, in my view, outweigh those of rate payers who voted for Cr Thaler at the 2024 Council elections.

1. Based on these findings I have decided to refuse Cr Thaler's application for a stay.
2. Accordingly, I make the following order:

(1) The application of Andrew Thaler for a stay of the order made by the Secretary on 28 July 2025 is refused.

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.