Woodhouse v Thalis

The procedural history

1. The procedural history of these proceedings lies at the heart of our decision. It is therefore necessary to recount that history in some detail. However, before doing so, it is necessary to identify those provisions of the Tribunal Act that are relevant to that history.
2. Having regard to the statutory basis upon which Mr Woodhouse brought his proceedings, his application was assigned to the Occupational Division of the Tribunal: Tribunal Act, s 16(3) and Sch 5, cl (1). Under cl 6(2) of Sch 5, the Tribunal is to be constituted by three Division members "when exercising its substantive Division functions" for the purposes of s 329 of the Local Government Act 1993. A "substantive Division function" is defined in cl 1(1) of Sch 5 to mean: … a Division function other than: (a) a Division function exercised in connection with the making of an ancillary or interlocutory decision of the Tribunal, or (b) a Division function exercised by a registrar."
3. We draw attention to these provisions because interlocutory hearings on and since 2 March 2017, the decisions made at those hearings and directions then given were conducted and made by the present Presiding Member. However, the decision to dismiss the application was made at the conclusion of the hearing on 17 May 2017, conducted before all three Members.
4. The application was first listed before the Tribunal for directions on 14 February 2017. At that time, Mr Woodhouse was given leave to issue a number of summonses under s 48 of the Tribunal Act for the production of documents. Pursuant to that leave, a summons to produce documents was issued to each of Mr Thalis, the Council and to the New South Wales Electoral Commission. Mr Woodhouse, who at all times has been self-represented, framed the terms in which documents were sought in each summons.
5. The application was next listed for directions on 2 March 2017. That was the first directions hearing at which the present Presiding Member had presided. Argument was then heard as to the terms of each summons and the objection, in some cases, to production of documents was determined. Each of Mr Thalis, the Council and the Electoral Commission was legally represented for the purpose of that hearing. Mr Woodhouse conducted the hearing on his own behalf.
6. As a consequence of the decision then made, Mr Woodhouse was given leave to issue further summonses, limited in scope to documents that may be sought. Some of the documents he had sought had been produced: the requirement to produce others was rejected. It was foreshadowed by the likely recipients of any further summons that, depending upon the way the requirement for production was framed, there was potential for a further challenge to the production of documents sought in each new summons.
7. Having addressed the issue of document production, at that hearing the Presiding Member directed attention to the significance of the proceedings, stating that their importance transcended the interests of the parties themselves because of the potential impact that success in the proceedings would have upon the functioning of the Council as a collegiate body. In this context, attention was drawn to the order sought by Mr Woodhouse that all decisions of the Council in which Mr Thalis had participated "be rescinded", an order that Mr Woodhouse stated he would press.
8. As a consequence, the Presiding Member stated that the preparation of the matter for hearing would need to be undertaken efficiently and an early date for hearing fixed. In the result, directions were then made requiring, amongst other matters, that Mr Woodhouse file and serve all evidence upon which he proposed to rely by 17 April 2017, with a further direction that Mr Thalis file and serve all evidence upon which he would rely by 1 May 2017. In anticipation that there may remain outstanding interlocutory matters to be resolved, particularly as to document production, a further directions hearing was fixed for 20 March 2017.
9. On the evening of Sunday 19 March 2017, Mr Woodhouse forwarded an email to the Registry, stating that he would be unable to attend the directions hearing fixed for the following day "due to illness". He identified his illness as being a throat infection, stating that he had lost his voice, that a relapse of Legionnaires Disease was suspected, with a recommendation attributed to his doctor, that he "not perform any work for tomorrow, and probably in the next few days". Attached to that email was a pro forma medical certificate stating that "the patient named" (Mr Woodhouse) "will be unfit to work for a period of one day from 20 March 2017." That is the only substantive part of the certificate.
10. Needless to say, that email was not seen by the Registry until the Monday morning of 20 March 2017. Not only was Mr Thalis intending to appear that day, by his solicitor, but so also were legal representatives of both the Council and the Electoral Commission. The latter two legal representatives had prepared to appear because they sought to have set aside the further summonses for production of documents issued at the instigation of Mr Woodhouse.
11. As the hearing was not due to commence until 1:30pm, there were a number of email exchanges among all concerned during the course of the morning, the result of which was that Mr Thalis, the Council and the Electoral Commission all agreed to the matter being adjourned without Mr Woodhouse attending. However, they requested that dates be fixed, not only to bring the interlocutory matters to finality but also to have fixed a date for the final hearing of the proceedings. Contact was made with Mr Woodhouse through the Registry, as a result of which two directions were made that day. First, the final hearing of the proceedings was fixed for 17 May 2017. Secondly, the hearing of any outstanding interlocutory application was fixed for 7 April 2017. Both dates were said, at that time, to be acceptable to Mr Woodhouse. No variation was made to the direction made on 2 March 2017 for the filing of evidence by the parties.
12. By an email sent to the Registry at 4:05pm on 5 April 2017, Mr Woodhouse stated that he would be unable to attend the hearing fixed for 9:30am on 7 April 2017. Again, he stated that this was for medical reasons, with his doctor requesting a re-test for Legionnaires Disease and recommending that he not perform any work or activities for the next two days. A medical certificate, again pro forma, attached to that email stated that he would "be unfit to work for a period of two days" being 6 and 7 April 2017.
13. The position stated by Mr Woodhouse in his email to the Registry was notified to all other interested parties on 6 April 2017. They each responded, indicating that they neither agreed to nor opposed the hearing being adjourned. However, they all sought an order requiring greater rigor to attach to any further application for adjournment, should one be sought. All (including Mr Woodhouse) were approached, through the Registry, as to a hearing date for the determination of outstanding interlocutory matters.
14. As a result, on 6 April, the hearing fixed for the following day was vacated and the hearing of any outstanding interlocutory application fixed for Thursday 27 April 2017 at 10am. The date for the final hearing of the proceedings, namely Wednesday 17 May 2017, was expressly confirmed. Further, the following direction was made: In the event that any further adjournment is sought by Mr Woodhouse on medical grounds, such application must be supported by an affidavit from an appropriately qualified medical practitioner, giving reasons why Mr Woodhouse is unable to participate in the Tribunal proceedings instituted by him. Unless consented to by all interested parties involved in any interlocutory proceeding, any further application for an adjournment will need to be argued at a hearing before the Tribunal, with the medical practitioner available to answer questions upon his or her affidavit evidence."
15. When notifying Mr Woodhouse of the order and directions then made, the Registrar was requested to indicate to him that the need for stringency in pursuing any further adjournment arises from the following circumstances: 1. this is the second occasion upon which an adjournment has been sought within 24 (working) hours of a hearing date; and 2. the subject matter of the proceedings transcends the personal interests of the parties: a matter of public importance is raised, namely the validity of the respondent's election to civic office under the Local Government Act 1993 and, if invalid, the legality of all decisions made by the City of Sydney Council in which the respondent has participated since his election. In the public interest, those issues require prompt determination.
16. We are satisfied from the records of the Tribunal that Mr Woodhouse was advised both of the orders and directions made on 6 April 2017 as well as the need for "stringency" in the terms indicated.
17. Mr Woodhouse did not attend the hearing on 27 April 2017. As had occurred on two prior occasions, an email was sent to the Registry by Mr Woodhouse, indicating that he would not appear due to illness. His email attached a pro forma medical certificate, indicating that he was "unfit for work" for the days nominated in that certificate. Significantly, he did not provide to the Tribunal any affidavit from a medical practitioner explaining why it was that his medical condition prevented him from attending and participating in the hearing. On that day, not only was the solicitor for Mr Thalis present at the hearing but so also were the legal representatives of the Council and the Electoral Commission. In light of their opposition to any adjournment, an adjournment was refused for reasons then given orally. No request for a statement of reasons refusing the adjournment has been made to the Tribunal.
18. On 27 April 2017, the Presiding Member heard argument on the application made by those represented before him as to why the further summons for the production of documents issued to each of them should be dismissed. Having heard argument, the summons directed to the solicitor for Mr Thalis and that directed to the Electoral Commission were each dismissed. Subject to the Council producing an identified document, the summons directed to it was also dismissed.
19. Having determined the arguments directed to those summonses, the Presiding Member observed to the legal representatives present that as the application by Mr Woodhouse sought an order, "rescinding" any decision of the Council in which Mr Thalis had participated, that was, in effect, a challenge to the validity of all such decisions. As Mr Woodhouse had indicated on 2 March 2017 his intention to pursue such an order, it did not appear that such an order could be made unless the Council was a party to the proceedings. Without accepting that the Tribunal had jurisdiction to order the "rescission" or make the invalidity order sought by Mr Woodhouse, the respective legal representatives of Mr Thalis and the Council acknowledged the substance of that observation and concern for the proceedings to be constituted by all necessary parties.
20. After making orders refusing the adjournment application by Mr Woodhouse and dismissing the summonses for production of documents, other than the document to be produced by the Council, the following further orders and directions were made and given by the Tribunal on 27 April 2017: 5. Unless by 4pm on 3 May 2017 the applicant files and serves an Amended Application joining the City of Sydney Council as a second respondent to the proceedings, so much of his Application as presently seeks an order that "all decisions involving Philip Thalis and the City of Sydney be rescinded" is struck out. 6. Extend the time by which the applicant is to file and serve his statements of evidence (if any) and all documents and other evidence upon which he proposes to rely to 4pm on Wednesday 3 May 2017. 7. In the event that the applicant fails to comply with Order 6 by the date there stated, the application is, without further order, dismissed with leave reserved to the Respondent to apply for an order that the applicant pay his costs of the proceedings. 8. Direct that by 4pm on 3 May 2017, the applicant file and serve upon the respondent a written outline of his submissions, including reference to the facts, the legislation and any decided case relied upon in support of his case. 9. Direct that by 4pm on 15 May 2017 the respondent file and serve upon the applicant any statement of evidence and all documents or other evidence upon which he proposes to rely together with a written outline of his submissions in response to the applicant's case, including references to the legislation and any decided case upon which he relies. 10. No leave is given to the applicant to disclose to any person, other than a legal practitioner retained by him for the purpose of the proceedings, the content of any document produced to him for the purpose of the proceedings unless and until either the document is tendered in evidence without any claim for confidentiality being upheld or confidentiality if the document is otherwise waivered. 11. The final hearing of the proceedings earlier fixed for 17 May 2017 is confirmed. 12. In the event that the applicant joins the City of Sydney Council as a second respondent under Order 5, the hearing on 17 May will proceed in respect of so much of the application as seeks orders that the respondent be disqualified as a Councillor of the City of Sydney Council and that he 'be prohibited from standing for any Council'. 13. Reserve liberty to either party to apply to have the proceedings relisted on 48 hours notice to the other party and to the Tribunal.
21. There are several observations to be made in respect of the orders or directions then made. Orders 5 and 12 were made to address the proper constitution of the proceedings should Mr Woodhouse pursue his claim for an order that, in substance, decisions of the Council in which Mr Thalis participated were invalid.
22. Order 6 was made because Mr Woodhouse had not, to that point of time, filed any evidence or documents intended to be relied upon in order to support his case. It will be recalled that a direction had been given on 2 March 2017 that the evidence upon which he proposed to rely should be filed and served by 17 April 2017.
23. When communicating with the Registry by email, Mr Woodhouse had indicated at an earlier time that he would be seeking leave to disclose some of the documents produced to him in the course of the proceedings to others when preparing his case. At one point, it was indicated that he was representing a group of people who shared a common concern as to the circumstances attending the election of Mr Thalis to the Council. When that request was raised, Mr Thalis had opposed the disclosure but the question had never been argued. Thus, the terms of order 10.
24. The terms of the orders and directions made on 27 April 2017 were notified to Mr Woodhouse by the Registry. As will appear, it is apparent that he received that notification.
25. By an email dated 11 May 2017, sent to the Registry shortly before 4pm that day, Mr Woodhouse stated that, relying upon the liberty reserved in Order 13 of the orders made on 27 April 2017, he wished to have the proceeding "relisted" but, having regard to the imminence of the date fixed for hearing of the proceedings, he asked that the "relisting" take place on "Wednesday 17th March [sic, May]". He requested that "relevant matters be dealt with then." He further stated that he would make submission "which would have been made on the previous occasion."
26. A copy of that request was sent by Mr Woodhouse to the solicitor acting for Mr Thalis. A copy was also sent to the respective solicitors representing the Council and the Electoral Commission. Beneath the name of Mr Woodhouse on the email are the words "President - Potts Point and Kings Cross Heritage & Residents' Society".
27. In the meantime, the solicitor acting for Mr Thalis had notified the Tribunal of his client's intention to pursue an application for costs at the hearing listed on 17 May 2017. As a consequence of receiving that notification, together with the email from Mr Woodhouse received on the afternoon of 11 May 2017, an email was sent on behalf of the Registrar to both parties on 12 May 2017, stating that the proceedings would remain listed for 17 May 2017 when the Tribunal would hear "any application that Mr Woodhouse seeks to make as well as the application of Mr Thalis for costs." The parties were directed to serve upon each other by 4pm on Monday 15 May 2017 the terms of the application that each sought to make together with any evidence in support of such application as well as an outline of submissions to which they would each speak. The parties were also informed that "all outstanding matters" would be heard on Wednesday 17 May 2017 "with a view to the final disposition of the proceedings."
28. Shortly before 5pm on Monday 15 May 2017, the Registry received an email from Mr Woodhouse attaching two documents. The first document was a submission by way of response to the orders made on 27 April 2017. Later reference will be made to those submissions but, for the present, it is sufficient to record that they conclude by stating that Mr Woodhouse relies "on medical advice regarding my appearance on Wednesday". His document then proceeded to nominate dates by which steps for the preparation of the matter for hearing should be taken by each party, concluding with the nomination of 8 September 2017 as the date for final hearing of the proceedings.
29. The second document attached to the email of 15 May 2017 is a pro forma medical certificate, certifying that "the patient named above" (Andrew Woodhouse) "will be unfit to work for a period of two days on 14 and 15 May 2017 [sic]". As will be apparent, neither date stated in that certificate was a date upon which Mr Woodhouse was required to attend the Tribunal for the hearing of the present proceedings.
30. The application for adjournment, together with the documents received from Mr Woodhouse, were provided to us for consideration. As a consequence of our consideration, the Registry was directed to respond to the parties by email in the following terms: 1. The matter remains listed for hearing tomorrow, 17 May. 2. Any application for adjournment by the applicant must be made at the hearing tomorrow, either by himself, a legal practitioner appearing on his behalf or by a person given leave to represent him, and the application must be supported by appropriate and relevant evidence. 3. Should medical evidence be relied upon, that evidence must be in the form of an affidavit sworn by a qualified medical practitioner who is available to be examined on his or her evidence either by attending the Tribunal or, subject to any application made by the respondent, is available for that purpose by telephone. An email in those terms was sent to the parties from the Registry shortly before 1:30pm on Tuesday 16 May 2017.
31. In the course of the afternoon of 16 May 2017, Mr Woodhouse forwarded another email to the Tribunal Registry attaching a submission. That submission further addressed the orders and directions made on 27 April 2017, concluding that they "should be rescinded". No reference is made in that submission to the Tribunal's email earlier that day confirming the hearing on 17 May 2017. The email concludes with a request that the Tribunal provide to Mr Woodhouse "any subsequent orders within 24 hours of any decision."
32. At 5pm that day, a further email was received in the Registry from Mr Woodhouse. He attached to that email a pro forma medical certificate from a different doctor at the practice that had provided such certificates on previous occasions. Again, the certificate stated that "the patient named above" would be "unfit for work for a period of two days from 16 May 2017". Also attached to the email from Mr Woodhouse were scanned copies of a prescription written by that doctor for medication to be supplied to Mr Woodhouse. In his email, Mr Woodhouse referred to advice, attributed to his doctor, not to perform work "tomorrow" as he had a throat infection, had "lost most of his voice" and was unable to speak "without a uninterrupted hacking cough". Nothing in the medical certificate supports that contention.
33. In his email, Mr Woodhouse reiterates that he is unable to attend "tomorrow's hearing and cannot speak to it." As a consequence, he reiterates his request for an adjournment, asserting that the grant of that request would be "in line" with the Tribunal's obligation to achieve a "just, quick, cheap" resolution of the proceedings.
34. The hearing on 17 May 2017 commenced at 10am. There was then no appearance by or on behalf of Mr Woodhouse. The matter was called in the precincts of the Tribunal hearing room but no response was received from any person on behalf of Mr Woodhouse. Mr Thalis was represented by his solicitor who opposed the grant of any adjournment.
35. Having regard to the documents before us and to the circumstances in which this litigation had been conducted by Mr Woodhouse since 2 March 2017, we refused to grant the adjournment sought by him in his emails to the Registry of 15 and 16 May 2017.

Dismissal of the proceedings

1. 'Local government' is often referred to as the third tier of government both in this State and nationally. Popularly elected councils, whose structure functions and powers are, in this State, primarily governed by the Local Government Act, play a significant role in many aspects of both the domestic and commercial life of the community. While it is important, in observing the rule of law, that those seeking election to civic office be qualified so to do in accordance with the provisions of the Local Government Act and observe the process of nomination for office there found, equally it is of importance that any challenge to the validity of the office held by an elected councillor be determined both fairly and promptly. Prompt determination is essential because the holder of elected office has a statutory obligation to perform the functions of that office until such time as a competent judicial or quasi-judicial body with the power so to do determines that the election to office did not occur according to law.
2. So much more is an expeditious determination required where, as here, the invalidity alleged to attend the election of a councillor is claimed to sound in the invalidity of those decisions made by the council in which the councillor participated. The longer the proceedings take to determination, the greater are the number of decisions that, on the case sought to be made, may be impugned as being invalid.
3. That appreciation of the significance of the proceedings, together with the injunction found in s 36 of the Tribunal Act, informed our approach to the application made by Mr Woodhouse on 16 May 2017, requesting, yet again, that the hearing of his proceedings be adjourned. Section 36 of the Tribunal Act relevantly provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings to the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to cooperate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in this Tribunal, (b) an Australian legal practitioner or other person who is representing a party in the proceedings in the Tribunal."
4. The various directions made by the Tribunal had endeavoured to give effect to the guiding principle, particularly having regard to the broader public interest to which the subject matter of the proceedings gave rise. However, we considered that Mr Woodhouse, as the moving party, had not conducted the proceedings in a manner that gave effect to that principle. For that reason, the adjournment application was refused. As he had not appeared, the proceedings were dismissed. Some further elaboration of the reasons for taking the course that we did is appropriate.

Inadequacy of medical certificates

1. On two occasions, namely 20 March and 7 April 2017, the Tribunal, with the consent of Mr Thalis and the legal representatives of other interested parties, extended an indulgence to Mr Woodhouse, as a self-represented litigant, by adjourning or vacating directions hearings that had earlier been fixed, on the basis of his email request, to which he attached pro forma medical certificates. Notwithstanding the direction given by the Tribunal at the time of adjourning the hearing on 7 April 2017, indicating the evidence required in order to support any further adjournment application founded upon medical indisposition, Mr Woodhouse persisted in making two further eleventh-hour applications for adjournment, based upon pro forma medical certificates, including the application seeking to adjourn the final hearing fixed for 17 May 2017.
2. As would be apparent from their terms, those certificates were entirely unsatisfactory to found an application for adjournment. Particularly is that so in the case of the adjournment application for the hearing on 17 May 2017 when, on two prior occasions, Mr Woodhouse had been advised of the need for appropriate medical evidence to support any claim that he was unable to attend the Tribunal and conduct his case due to illness.
3. The inadequacy of pro forma medical certificates to found an adjournment of legal proceedings has been the subject of judicial observation. In AHB v NSW Trustee and Guardian [2014] NSWCA 40, Macfarlan JA considered an adjournment application, founded upon a pro forma medical certificate stating that the litigant was "unfit for work/school" between nominated dates "due to a medical condition." In respect of that certificate, his Honour said at [4] (Gleeson JA agreeing): The Court will not ordinarily act on such a formulaic document and will require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant's inability to attend Court.
4. In Bobolas v Waverley Council [2016] NSWCA 138, the Court of Appeal considered a ground of appeal in which self-represented appellants complained that the primary judge had wrongly rejected a pro forma medical certificate as being sufficient to explain why the appellants had not attended Court to conduct an earlier hearing. McColl JA (Simpson JA and Sackville AJA agreeing) determined that the primary judge's rejection of that medical certificate was "unexceptionable". At [221] her Honour said: A medical certificate relied upon to demonstrate a litigant is unable to attend Court must address the 'critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a Court hearing'.
5. The passage in parenthesis within that quote is taken from the judgment of Lindgren J in MAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [6].
6. The decision of the Court of Appeal in Bobolas v Waverley Council has recently been applied by the Appeal Panel of this Tribunal when considering the adequacy of a pro forma medical certificate to found an adjournment (Harmony Stone Gallery Pty Limited v Ajuria [2017] NSWCATAP 80 at [38]). We respectfully concur in the appropriateness of applying the observations of the Court of Appeal to applications for adjournment of proceedings in the Tribunal founded upon medical certificates of that description. Particularly should that be so where evidence in that form is relied upon to support an "eleventh hour" application for adjournment of a hearing that has been fixed to determine the substantive proceedings.
7. Putting aside the pro forma certificate provided by Mr Woodhouse on 15 May 2017 identifying dates that were not dates upon which he was required to conduct his proceedings in the Tribunal, each of the other certificates relied upon did no more than assert that he was "unfit to work". Each certificate nominated either one or two days to which that unfitness to work is said to apply. As the direction given to Mr Woodhouse on 6 April 2017 required, the medical evidence to support an adjournment application was necessary to state why Mr Woodhouse was unable to participate in the proceedings instituted by him in the Tribunal. That requirement was reiterated in the email response from the Tribunal to Mr Woodhouse on 16 May 2017. Medical evidence of that kind was never provided.
8. Thus, we were unpersuaded by the pro forma medical certificate dated 16 May 2017 that there was proper justification for the adjournment sought by Mr Woodhouse on 17 May 2017, particularly as Mr Thalis was not provided with an opportunity to test any evidence justifying the adjournment. Further, the circumstance that on four occasions between March and May Mr Woodhouse failed to appear, following applications for adjournments made by email within 48 hours of the time and date fixed for hearing also weighed upon our decision to decline the adjournment with consequent dismissal of the proceedings due to the absence of Mr Woodhouse.

Failure to comply with directions

1. Mr Woodhouse showed no inclination to comply with directions given by the Tribunal for the conduct of his proceedings. The failure to even acknowledge, let alone address or attempt to address, the manner in which an adjournment application based on medical grounds should be made, exemplifies that proposition.
2. Further, no attempt was made by Mr Woodhouse to identify to Mr Thalis, let alone assemble and serve, the evidence upon which he intended to rely in order to establish his case. The direction for filing and serving his evidence was first made on 2 March and required the service of that evidence by 17 April 2017. He had failed to take any step to comply by 27 April 2017 but, in deference to his position as a self-represented litigant, the time for compliance was extended until 4pm on 3 May 2017. That extension did not result in the filing and service by him of any evidence at any time prior to 17 May 2017.
3. In the submission document attached to his email of 15 May, Mr Woodhouse contend that he was unable to comply with the requirement, first because he was only notified on 1 May 2017 of the orders and directions made by the Tribunal on 27 April 2017 and secondly because he claimed that documents sought in the further summonses issued by him had not been produced. There are two difficulties with that contention.
4. First, it ignores the fact that the direction to file and serve his evidence had first been given on 2 March 2017 and no application had been made by him to vary that direction. Second, his response ignores the fact that on 27 April 2017 his further summonses for production of documents had each been dismissed.
5. Assuming that there were documents to which he claimed he was entitled and therefore could not complete the compilation and service of all his evidence, faced with the direction given on 27 April 2017 we would have expected some attempt to be made to identify the documents that he did have and upon which he proposed to rely for the purpose of his case. No such indication was provided to the Tribunal nor, as we understand it, to the legal representative of Mr Thalis.

The email of Monday 15 May 2017

1. We have earlier referred to both the medical certificate and request for adjournment received by the Tribunal from Mr Woodhouse shortly before 5pm on Monday 15 May 2017. Apart from requesting an adjournment, that email stated that there were "a number of issues and outstanding matters still unfinalised, before which this matter can be decided [sic]." The document then addressed a number of issues, including the orders and directions made on 27 April 2017. We do not intend to address all of the issues raised in that regard. However, there are three matters that we do address, treating the submission as if made before us on 17 May 2017.
2. First, there is a suggestion that the procedural requirements imposed upon Mr Woodhouse placed an unfair burden upon him "as a non-represented applicant." We recognise that the Tribunal is a forum in which parties may see it as appropriate to conduct their own litigation, particularly having regard to s 45 of the Tribunal Act. We also acknowledge that by s 38(4) we are "to act with as little formality as the circumstance of the case permits…without regard to technicalities or legal forms." Further, we recognise that by s 38(5) we are enjoined to take such measures as are reasonably practicable to ensure that a party understands the nature of the proceedings and to ensure that the parties have a reasonable opportunity to be heard "or otherwise have their submissions considered in the proceedings."
3. As would be apparent from the procedural history earlier recorded, effect has been given by the Tribunal to those provisions. Observations made in the course of proceedings on 2 March 2017, when Mr Woodhouse did appear, identified "the nature" of the proceeding and the significance they had not only for the parties but for the broader community. As will later appear, quite apart from the observations then made, Mr Woodhouse well appreciated both the nature of the proceedings and their significance from the time his proceedings were commenced. Nonetheless, latitude had been extended to Mr Woodhouse in attending to the preparation of his case as well as identifying to him, well in advance of any date fixed for hearing, the basis upon which and the way in which he was required to present his evidence and submissions, including evidence and submissions directed to applications for adjournments.
4. Regrettably, Mr Woodhouse did not avail himself of the opportunities that adherence to the directions would have given him when seeking adjournments on medical grounds. Even if the onset of illness did not afford time to prepare an affidavit, having regard to the directions given we were entitled to expect, at the very least, a medical report providing a description of the illness or disability from which Mr Woodhouse was suffering and why that illness or disability prevented him from attending the Tribunal to conduct his case on 17 May 2017.
5. The Tribunal has no duty solely to an unrepresented litigant in contested proceedings. Its duty, conformably with s 38 of the Tribunal Act, is to ensure a hearing that is fair to all parties, represented or unrepresented (Bobolas v Waverley Council at [245]-[247]). Fairness in the context of the present proceedings includes not only consideration of the position of Mr Woodhouse but equally the position of Mr Thalis, with the impact of the proceeding not only upon him personally but upon his position as a member of the collegiate body that constitutes the Council.
6. The second matter arising from the submission received on 15 May 2017 is the assertion by Mr Woodhouse that he had "entered into negotiations" to be legally represented by a nominee of the Bar Association under the Association's Legal Assistance Scheme. To make a final determination of the matter on 17 May 2017 was, so he contended, to place him in an unfair position by denying him the opportunity to complete those "negotiations" and, by inference, to be legally represented. We did not accept that contention.
7. Attached to the 15 May 2017 submission was the printout of an email chain between Mr Woodhouse and the Bar Association's Legal Assistance Manager (the Manager). That chain commences with an email from Mr Woodhouse on 13 December 2016 and concludes with a further email from him to the Manager dated 8 February 2017. In that last email, he states that any assessment of success "is not yet possible" and suggests that "we wait until both sides have lodged written submissions." There is no evidence of any communication from Mr Woodhouse to the Manager after 8 February 2017 and certainly no indication that he had advised the Manager either of the directions made in March and April or of the fact that the final hearing had been fixed for 17 May 2017 by an order made on 20 March 2017. Moreover, no email indicates that Mr Woodhouse would or could expect to receive assistance from the Association.
8. The third matter arising from the submission by Mr Woodhouse concerns order number 5 of the orders made on 27 April 2017. The submission by him describes that order as a decision "to decide an intervention matter in this case." He complains that he has not been served with "any documentation about this proposal" and objects to it on the basis that he had not received notice.
9. As is apparent, there is a misunderstanding of both the terms and the purpose of that order. Order 5 seeks to address the circumstance that Mr Woodhouse wished to pursue that part of his application seeking the "rescission" of decisions made by the Council in which Mr Thalis had participated. As the order makes tolerably clear, it was for Mr Woodhouse to file an amended application joining the Council if he wished to pursue his "rescission" order (cf Tribunal Act s 44(1); Civil and Administrative Tribunal Rules 2014, cl 27(b)). No joinder of the Council was required if Mr Woodhouse proposed to pursue only the other two orders identified in his initiating process.

Order 7 of orders made on 27 April 2017

1. Other than to contend in his emailed submissions of 15 and 16 May 2017 that all the documents which he sought from Mr Thalis, the Council and the Electoral Commission had not yet been produced, ignoring that the summonses issued for production of documents had been dismissed, Mr Woodhouse does not address the operation of Order 7 made on 27 April 2017. That order was intended to be self-executing in that if he failed to file and serve his evidence in accordance with Order 6, his application would stand dismissed with leave reserved to Mr Thalis to make an application for costs. That order was made in the context of the failure by Mr Woodhouse to have complied with the direction on 2 March for the filing of his evidence by 17 April 2017, coupled with his failure to appear on 20 March, 7 April and 27 April 2017. No application has been made to set aside that order (cf Tribunal Act, s 53(3) and (4); Civil and Administrative Tribunal Regulation 2013, cl 9(1)).
2. As an order that, on its face, was operative at the time of the hearing before us on 17 May 2017, subject to the determination of costs sought by Mr Thalis, the application was dismissed, by operation of Order 7. If there be any doubt as to the effect of that order, we determined that, in any event, the proceedings should be dismissed, having regard to the matters we have identified, pursuant to s 55(1)(c) of the Tribunal Act in that Mr Woodhouse had failed to appear in the proceedings.

Costs

1. In seeking an order that Mr Woodhouse pay his costs of the proceedings, Mr Thalis recognises that dismissal of the proceedings does not, in itself, lead to any presumption that he should have an order for costs made in his favour. Section 60 of the Tribunal Act relevantly provides: "60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed under section 36(3), (g) any other matter the Tribunal considers relevant."
2. Mr Thalis advances his claim for costs on the basis that special circumstances have been demonstrated by applying four of the paragraphs found in s 60(3) to the conduct of the proceedings by Mr Woodhouse. He submits that: 1. Mr Woodhouse "refused or failed to comply" with the duty imposed upon him by s 36(3) of the Tribunal Act, the terms of which we have earlier quoted, in that he failed to comply with the "guiding principle" by failing to participate in the processes of the Tribunal and by failing to comply with directions and orders made for the conduct of the proceedings; 2. the proceedings were vexatious, or otherwise misconceived and lacking in substance; 3. the claims made by Mr Woodhouse had no tenable basis in fact or in law; and 4. the proceedings were brought for an improper purpose in that he sought to publish information obtained by compulsion, using the Tribunal's processes, prior to such information being tendered or read in evidence.
3. The chronology of hearing fixtures, adjournments and failure to comply with directions as well as the failure of Mr Woodhouse to appear on 17 May when the matter was listed for final hearing, being events that we have earlier identified and discussed in detail, are relied upon as manifesting a failure to comply with the duty imposed by s 36(3) of the Tribunal Act. They are therefore demonstrative of special circumstances warranting an order for costs. Those same events and circumstances are also submitted to be relevant to the third and fourth grounds upon which a costs order is warranted.
4. We will not repeat the detail and observations earlier made as to the failure of Mr Woodhouse to comply with procedural directions; his failure to make any application to have directions reconsidered that he asserted he was not reasonably able to meet; his failure to attempt to comply, even in part, with directions made to identify the evidence upon which he relied and his failure to comply with the direction made as to the manner in which any application for adjournment on medical grounds was to be made. Individually, his omissions are important but, for present purposes, collectively those omissions are significant. On no less than four occasions Mr Thalis was put to the expense of having his legal representative prepare for a hearing that, at the eleventh-hour, was not able to proceed to determination of interlocutory issues or, in the case of the hearing fixed for 17 May, the substantive issues raised in the proceedings.
5. The significance of the proceedings was fully appreciated by Mr Woodhouse. So much is apparent from the emails he sent to the Bar Association, copies of which he sent to the Tribunal. In his email to the Association of 13 December 2016, that is, shortly after filing his application in the Tribunal he wrote: This is a high profile, public interest case. I am applying to the Tribunal to have a leading Sydney Councillor dismissed.
6. Having identified that significance, Mr Woodhouse might reasonably have expected that Mr Thalis would take seriously the challenge to the validity of his election to civic office. That Mr Thalis did, by obtaining legal representation. As it eventuated, Mr Thalis was put to the expense of protecting his status as an elected councillor without Mr Woodhouse presenting the case against him in the manner and within the time that the significance of the claim warranted.
7. As Mr Thalis claims, that failure occurred because Mr Woodhouse did not abide by the directions and orders of the Tribunal as he was reasonably required to do in order to give effect to the provisions of s 36(3) of the Tribunal Act. We accept that to be case.
8. Further, we are satisfied that the failure of Mr Woodhouse to give effect to those provisions identifies special circumstances that warrant an award of costs in favour of Mr Thalis. By reason of those circumstances, Mr Thalis is entitled to be indemnified against the liability for costs he has incurred. They are costs incurred that, as it happened, serve no end in the context of the claim made against him. We make clear that our decision to find special circumstances justifying the award of costs is not made so as to punish or penalise Mr Woodhouse for the manner in which he conducted his proceedings (Latoudis v Casey (1990) 170 CLR 534 per McHugh J at 566-567; [1990] HCA 59).
9. In the course of the hearing before us, the other three grounds upon which Mr Thalis sought an order for costs were discussed and tentative views expressed. However, for the reasons we have given, the first ground relied upon by Mr Thalis is sufficient, in itself, to sustain the order for costs that we made.

Concluding observations

1. As we stated at the conclusion of the hearing on 17 May, there is one further observation to be recorded that is relevant to both the order dismissing the proceedings and the order for costs that we made. It is an observation directed to the claimed incapacity of Mr Woodhouse to attend hearings due to illness, even for the purpose of seeking an adjournment.
2. Emails forwarded by way of direct communication from Mr Woodhouse to the Tribunal, as well as copy emails that he provided to others, including the Bar Association when seeking legal assistance, all indicated that they were sent by him in his capacity as the President of the Potts Point and Kings Cross Heritage and Residents' Society. The email address that he used was the email address of that organisation. There is an inference from that usage, together with his statement that he sought leave to disclose documents produced for the purpose of the proceedings with members of that organisation, that he brought proceedings in a representative capacity.
3. If, as Mr Woodhouse claims, he was unable to attend on each of the four occasions upon which he failed to attend, due to illness, we would have thought that another member of the organisation that he represented could have attended, if not to argue the case finally, at least to provide an explanation as to why an adjournment should be granted because (if it be the case) representation by Mr Woodhouse of those interested in the subject matter of the proceedings was so fundamental as to warrant the adjournment. If the inference as to the representative capacity of Mr Woodhouse is correctly made, the absence of any attendance before us by a member of the organisation being represented, to explain the position of Mr Woodhouse, is yet a further factor supporting the decisions we made.
4. These are our reasons for making the orders that we did on 17 May 2017.

Orders

1. In summary, the Appeal Panel: 1. Confirmed the dismissal of proceedings pursuant to order 7 made on 27 April 2017; 2. In the alternative, ordered pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 that the proceedings be dismissed by reason of the failure of the Applicant to appear on the hearing of the proceedings; 3. Ordered that the Applicant pay the Respondent's costs of the proceedings as agreed or assessed. 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2023