Thaler v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWCATOD 16;

1. It was submitted that the Secretary would be prejudiced if the application was not dealt with urgently as it "undermines those affected by her decision, who continue to suffer harm as a result of Cr Thaler's ongoing misconduct, while his suspension is not in effect". It was further submitted that the Tribunal should be satisfied that, unless the application is dealt with urgently, Cr Thaler will "continue to make offensive, abusive, harassing, disrespectful and intimidatory remarks towards other councillors and council staff". In support of those submissions, the Secretary relied on videos allegedly published by Cr Thaler on 16 and 18 January 2026 in which Cr Thaler allegedly made remarks about council officers which, if established, warranted a number of those descriptions.
2. It was further submitted that Cr Thaler's conduct had "escalated to attending, stalking and intimidating a councillor at her home on 26 December 2025", as alleged in the evidence filed in the Secretary's application. It was submitted that Cr Thaler's conduct rendered the Council unable to comply with its duty under the Work Health and Safety Act 2011 to provide a safe work environment for councillors and council staff.
3. Despite being granted the indulgence of a stay on 31 October 2025, it was submitted that:

"(i) Councillor Thaler has continued to fail to demonstrate any remorse;

(ii) Councillor Thaler has demonstrated contempt for the Tribunal, by persisting with his pattern of misconduct, despite the repeated warnings issued by the Tribunal when granting the stay (cited at paragraphs 5-7 of the application), which was submitted to 72 hours' liberty to apply;

(iii) Councillor Thaler continues to express disdain for the disciplinary process, for example, remarking in his video published on 16 January 2026:

"Give me a Code of Conduct. Give me Code of Conduct [sic]. I don't fucking care ... Give me a Code of Conduct, office of local government ... I no longer fucking care""

1. It was ultimately submitted that discharging the stay order was appropriate in circumstances where:

"(a) councillors and council staff are not safe in their workplace;

(b) at least one councillor is fearful for her safety in her own home; and

(c) Councillor Thaler has promised to continue publishing his offensive, abusive, harassing, disrespectful and intimidatory remarks towards other councillors and council staff."

1. The Secretary respectfully urged the Tribunal to list the application for hearing at the earliest available opportunity.

1. It was submitted on behalf of Cr Thaler that the directions of 22 January 2026 "reflect a considered exercise of the Tribunal's case management discretion". It was submitted that the directions "strike an appropriate balance between expedition and fairness, ensuring that the Tribunal will have the benefit of a complete evidentiary record before determining an application with serious statutory consequences". It was submitted that the Secretary's submissions did not identify any new or materially changed circumstances arising after the making of the directions.
2. The matters relied upon in support of the urgency application were submitted to pre-date the directions, and have been capable of being raised before they were made. It was further submitted that "In substance, the submissions repeat matters already known to the Tribunal when it fixed the existing timetable".
3. It was submitted that the existing directions provided the Secretary with the opportunity to present evidence and submissions in support of the application, and Cr Thaler with a reasonable opportunity to respond, including by evidence and written submissions, to which the Secretary had a right of reply. The directions of 22 January were submitted to accord with the fundamental principles of procedural fairness and ensure that the determination of the application will be on a "complete and tested evidentiary basis". It was submitted that the relief sought by the Secretary would deny Cr Thaler procedural fairness.

1. The Tribunal does not accept that the contentions on behalf of Cr Thaler in the final sentence of [11] and in [12] above preclude expedition of the hearing of the Secretary's application to discharge the stay order. if established, those allegations would require the Tribunal to reconsider the continuation of the stay order, notwithstanding that Cr Thaler's offending conduct may also have occurred previously.
2. Notwithstanding the gravity of the untested allegations made against Cr Thaler by the Secretary, in all the circumstances the Tribunal is not disposed to vary the orders made on 22 January 2026.
3. The Secretary's application was filed on 21 January 2026 and was in reliance upon events which allegedly occurred on 26 December 2025. Accepting that the Christmas/New Year period significantly reduced the time in which the Secretary could reasonably have made the application to discharge the stay order, the reality remains that the Secretary has had almost a month in which to file and serve the evidence in support of the application. To grant the Secretary's application would mean that Cr Thaler was had materially less time in which to prepare his case.
4. On 22 January 2026, seized of the application, and aware of the serious allegations made in the evidence in support of it, the Tribunal endeavoured to facilitate an expeditious determination of the application to discharge the stay order, conscious of the need to balance urgency with procedural fairness. The Tribunal considers that the orders achieved that balance.
5. It is relevant for present purposes that Cr Thaler's appeal against the third suspension order, which gave rise to the stay order, is to be heard by the Tribunal on 25, 26 and 27 February 2026. Even if the present application were to be heard prior to 23 February 2026, when regard is had to the Secretary's right to respond to Cr Thaler's material, at best, that could only occur a matter of days before the hearing of Cr Thaler's appeal against the third suspension order. At the conclusion of that hearing, it would be open to Cr Thaler to seek a further stay of the order pending determination of his appeal if the stay order is discharged on 23 February 2026 or, if the stay has not been discharged by that time, for the Secretary to then seek its discharge.
6. Although the Secretary alleges conduct by Cr Thaler, which, if established on an interlocutory basis would demonstrate that Cr Thaler has abused the indulgence granted to him on 31 October 2026, Cr Thaler should have a reasonable opportunity to respond to the material relied on by the Secretary, and to prepare and present his case (Kioa v West (1985) 169 CLR 550; [1985] HCA 81). If the Secretary's application is granted, there is a real risk that Cr Thaler will be denied procedural fairness. The CAT Act provides no legislative basis for circumventing the rules of procedural fairness (Minister for Immigration and Border Protection v WZARH [2015] HCA 40). Section 38(2) of the Act provides that "procedure" in the Tribunal is "subject to the rules of natural justice". On balance, the Tribunal is satisfied that any injustice which the Secretary might suffer as a result of the refusal to expedite the hearing of the application to discharge the stay order is outweighed by the denial of natural justice or procedural fairness which expediting the hearing is likely to cause Cr Thaler.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act (NSW) the Tribunal dispenses with a hearing of the interlocutory application made on 23 January 2026.

(2) The application of the Secretary, Department of Planning, Housing and Infrastructure filed on 21 January 2026 is listed for hearing on 23 February 2026.

(3) The directions of 22 January 2026 are confirmed.

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.