Woodhouse v Thalis

The application for an adjournment of the hearing

1. At the commencement of the hearing before me, the plaintiff, who appeared in person, sought an adjournment on the basis that he had not been given a sufficient opportunity "to present (his) case in full". In particular, the plaintiff submitted that he had been denied that opportunity because of the late provision of submissions on behalf of the defendant. The application for an adjournment was refused and I indicated that I would give my reasons for that decision when handing down judgment.
2. Quite apart from the fact that the defendant's submissions were in fact served within the timetable set by the court, the plaintiff received them two weeks prior to the hearing before me. It is also apparent that the plaintiff was in breach of orders made by the Registrar requiring him to file and serve material in relation to the proceedings. When asked why this had occurred, the plaintiff said that he had been "involved in (his) general work and wasn't able to". A further order requiring him to file and serve written submissions was also breached.
3. As I pointed out to the plaintiff at the time of hearing submissions in support of the application, there is a fundamental difficulty in seeking an adjournment of a matter listed for hearing in circumstances where there has been a repeated failure to comply with orders of the court. The plaintiff has had ample opportunity to prepare his case. For those reasons the application was refused.

The evidence

1. A court book prepared on behalf by the defendant was admitted and marked Exh. A. In the course of admitting that evidence I ruled upon various objections raised by the plaintiff. Those rulings will appear in the transcript of the proceedings. A supplementary court book prepared by the plaintiff was admitted without objection and marked Exh. B.

The proceedings brought by the plaintiff in the Tribunal

1. The defendant was elected as a councillor on the Council of the City of Sydney ("the Council") at Local Government elections which were held on 10 September 2016. By an application filed in the Tribunal on 9 December 2016, the plaintiff sought orders in the following terms: 1. Philip Thalis be disqualified from being a councillor. 2. All decisions involving Philip Thalis and the City of Sydney Council be rescinded. 3. Philip Thalis be prohibited from standing for any council.

The decision of the Tribunal

1. On 27 April 2017 the Tribunal (M Craig QC (Principal Member), R Titterton, (Senior Member) and B Thomson (General Member)) made orders (inter alia) dismissing that application. Follow that decision, the plaintiff made an application to the Tribunal for a written statement of reasons. That statement of reasons was provided on 17 May 2017: Woodhouse v Thalis [2017] NSWCATAD 260.

The reasons of the Tribunal

1. Commencing at [5], the Tribunal recounted, at some length, the procedural history of the proceedings brought by the plaintiff, and noted that such history lay at the heart of its decision to dismiss them The Tribunal's summary of the procedural history covered 34 paragraphs of its judgment. Whilst I do not propose to canvass the entirety of the matters contained in those paragraphs, the following are of particular relevance to the Tribunal's determination.
2. A directions hearing in the proceedings was fixed for 20 March 2017. On the evening of Sunday 19 March 2017, the plaintiff contacted the Tribunal Registry stating that "due to illness" he would not be able to attend. He identified his illness as a throat infection which had caused him to lose his voice, and stated that a relapse of Legionnaires Disease was suspected. He attached a pro-forma medical certificate stating that he would be "unfit for work" for one day.
3. A further directions hearing was fixed for 7 April 2017, with the final hearing of proceedings fixed for 17 May 2017. The plaintiff acquiesced to both of those dates being set. By an email sent to the Tribunal Registry on 5 April 2017, the plaintiff advised that he would not be able to attend the directions hearing fixed for 7 April 2017. Once again, he stated that this was due to medical reasons, including the fact that his doctor had ordered a further test for Legionnaires Disease, and had recommended that he not do any work or perform any activities for the next two days. A pro-forma medical certificate attached to the email stated that the plaintiff would be "unfit for work for a period of two days", namely on 6 and 7 April 2017.
4. The final date for hearing was then confirmed and the proceedings were fixed for 27 April 2017 for the hearing of any outstanding interlocutory applications. In making those orders, the Tribunal directed that any further application for an adjournment by the plaintiff on medical grounds was to be supported by an affidavit from an appropriately qualified medical practitioner, giving reasons why the plaintiff was unable to participate in the proceedings. The plaintiff was advised of that (and other) orders, and of the need to strictly observe them.
5. The plaintiff failed to attend the hearing on 27 April 2017. As had been the case on the two previous occasions, he sent an email to the Tribunal Registry shortly beforehand, indicating that he could not appear due to illness and seeking an adjournment. His email again attached a pro-forma medical certificate, indicating that he was "unfit for work" for the days nominated in that certificate. Contrary to the direction which had been made by the Tribunal, the plaintiff did not provide any affidavit from a medical practitioner explaining why he could not attend, and participate in, the hearing.
6. When the matter came before the Tribunal on 27 April 2017, a number of other parties appeared and opposed the plaintiff's application for an adjournment. The application was refused for the reasons which were given by the Tribunal at the time. The plaintiff did not request a statement of those reasons. Summonses issued by the plaintiff for the production of documents to the solicitor for the defendant, as well to the Electoral Commission, were dismissed. Subject to one document being produced, a further summons issued to the Council was also dismissed.
7. On that occasion, the view taken was that the Council ought to be joined as a party to the proceedings. Accordingly, after refusing the plaintiff's application for an adjournment, the presiding member made further orders requiring (inter alia) the plaintiff to join the Council to the proceedings and confirming the final hearing date of 17 May 2017.
8. The plaintiff contacted the Tribunal Registry on 11 May 2017 seeking to have the proceedings relisted so as to deal with "relevant matters". The Registrar subsequently advised all parties that the proceedings would remain listed for hearing on 17 May 2017, at which time the Tribunal would hear any application that the plaintiff sought to make.
9. The plaintiff then contacted the Tribunal Registry on 15 May 2017, forwarding (inter alia) a pro-forma medical certificate, stating that he would be "unfit to work for a period of two days on 14 and 15 May 2017". Neither of those dates were dates upon which the plaintiff was required to attend the Tribunal for the hearing of the proceedings. That email was accompanied by what was, in effect, an application for an adjournment of the hearing, with the plaintiff proposing a new hearing date of 8 September 2017.
10. The Registrar was directed to (and did) inform the plaintiff that the matter remained listed for hearing on 17 May 2017 and that any application for an adjournment was to be made at that time, either by the plaintiff himself, a legal practitioner appearing on his behalf, or a person representing him by leave. The Registrar further informed the plaintiff that any such application would be required to be supported by evidence. It was further directed that in the event that medical evidence was to be relied upon, it was to be in the form of an affidavit sworn by a qualified medical practitioner who was available to be cross-examined, either by attending the Tribunal in person or being available for that purpose by telephone.
11. The parties, including the plaintiff, were advised of those orders early on the afternoon of 16 May 2017. Later that afternoon, the plaintiff again contacted the Tribunal Registry asserting that the orders made on 27 April 2017 "should be rescinded". He made no reference in that correspondence to the email which the Tribunal had sent to him only a matter of hours before confirming the hearing date of 17 May 2017.
12. At 5.00pm on 16 May 2017, yet another email was received by the Registrar from the plaintiff. It attached a pro-forma medical certificate issued by another doctor at the medical practice from which the previous certificates had been issued. This certificate stated that the plaintiff would be "unfit for work for a period of two days from 16 May 2017". In that email, the plaintiff referred to advice which he attributed to his doctor that he was not to perform work "tomorrow" because he had a throat infection, had "lost most of his voice" and was unable to speak "without an uninterrupted hacking cough". Nothing in the medical certificate specifically supported those contentions. In the same email, the plaintiff reiterated that he was unable to attend the hearing and sought a further adjournment, asserting that the granting of an adjournment would be "in line" with the Tribunal's obligation to achieve a "just, quick, cheap resolution of the proceedings".
13. The proceedings came before the Tribunal on 17 May 2017, at which time the plaintiff did not appear. The defendant was represented by his solicitor who opposed any adjournment. The adjournment sought by the plaintiff was refused by the Tribunal and the proceedings were dismissed.
14. Commencing at [40], and having recounted the history of the proceedings (including those aspects to which I have referred above) the Tribunal emphasised the need for the expeditious determination of the proceedings, in circumstances where the plaintiff alleged that there was invalidity attaching to the election of a councillor, and consequent invalidity in decisions made by the Council in which that councillor had participated. The Tribunal pointed out (at [41]) that the longer the proceedings took to be determined, the greater the risk of Council decisions being impugned.
15. The Tribunal made reference to s. 36 of the Civil and Administrative Tribunal Act 2013 (NSW) which is in the following terms: 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 in 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 co-operate 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 the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
16. Against that background, the Tribunal (commencing at [44]) noted that there had been two occasions, namely 20 March 2017 and 7 April 2017, on which it had, with the consent of the defendant and other interested parties, extended indulgences to the plaintiff on the basis that he was a self-represented litigant, either by adjourning the proceedings or by vacating directions hearings that had been fixed. The Tribunal also noted that notwithstanding the directions which had been made on 7 April 2017, the plaintiff persisted in making what were described as two further "eleventh-hour applications for adjournment" supported by pro-forma medical certificates, despite a direction requiring the filing of sworn evidence. The Tribunal found (at [45]-[46]) that the certificates provided by the plaintiff were entirely unsatisfactory for the purposes of founding an application for an adjournment: AHB v NSW Trustee and Guardian [2014] NSWCA 40 per Macfarlan JA at [4]; Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139 per McColl JA at [221].
17. Commencing at [51], the Tribunal made reference to the plaintiff's failure to comply with its directions before turning to consider the correspondence received by the plaintiff on 15 May 2017 (commencing at [56]). In particular, the Tribunal said: 56. 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 57. 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. 58. 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." 59. 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. 60. 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. 61. 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. 62. 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. 63. 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. 64. 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. 65. 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.

The proceedings in this Court

1. The plaintiff seeks leave to appeal against the decision of the Tribunal. In that regard, s. 83 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act") is in the following terms: 83 APPEALS AGAINST APPEALABLE DECISIONS (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. (2) A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings. (3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following: (a) an order affirming, varying or setting aside the decision of the Tribunal, (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court. (4) Without limiting subsection (3), the appropriate appeal court for an appeal against a civil penalty may substitute its own decision for the decision of the Tribunal that is under appeal. (5) Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.
2. Further, s. 84 of the Act is in the following terms: 84 PRACTICE AND PROCEDURE FOR APPEALS TO COURTS UNDER THIS ACT (1) This section applies in relation to an appeal against a decision of the Tribunal to: (a) the Supreme Court or District Court under this Division, or (b) the Supreme Court, the District Court or another court under any other provision of this Act. (2) An appeal to which this section applies must be made: (a) within such time and in such manner as is prescribed by the rules of court for the court to which the appeal is made, or (b) within such further time as the court may allow. (3) The Tribunal (or any of the members constituting the Tribunal) cannot be made a party to an appeal to which this section applies. The rules of court for a court to which such an appeal may be made may make provision for the parties to any such appeal (including the designation of a respondent where the only party to the proceedings from which the appeal is brought was the appellant). (4) In this section: "rules of court" for a court includes the uniform rules under the Civil Procedure Act 2005 if the uniform rules apply to proceedings of that court.
3. Rule 50.3 of the Uniform Civil Procedure Rules (2005) (NSW) is in the following terms: 50.3 Time for appeal (1) A summons commencing an appeal must be filed: (a) within 28 days after the material date, or (b) if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or (c) within such further time as the higher court may allow. (2) An application for an extension of time under subrule (1) (c) must be included in the summons commencing the appeal. Note: The provisions of this Part, like the other provisions of these rules, are subject to any Act that makes provision to the contrary. For example, section 24 of the Companion Animals Act 1998 provides that an appeal to the District Court against an order disqualifying a person from owning a dog may only be made within 28 days after the date on which the order is made.
4. Rule 50.2 defines the term "material date" as follows: "material date" , in relation to an appeal, means: (a) if the appeal is from the decision of a court, the date on which the decision is pronounced or given, and (b) if the appeal is from any other person or body, the date on which notice of the decision was given, by or on behalf of the person or body who made the decision, to the person who wishes to appeal.
5. The term "court" is defined in s. 3(1) of the Civil Procedure Act 2005 (NSW) as follows: "court" includes tribunal.
6. In the present case, the orders of the Tribunal were pronounced on 27 April 2017, with formal reasons being delivered on 17 May 2017. Accordingly, for these purposes, the application for leave to appeal against the decision of the Tribunal was required to be brought within 28 days of 27 April 2017. The summons seeking leave to appeal was filed and sealed in this Court on 13 July 2017.
7. In support of his application for an extension of time, the plaintiff variously asserted that: 1. the Registry of this Court refused any attempt to lodge an application for an extension of time until such time as all avenues of appeal within the Tribunal were exhausted; 2. he in fact lodged an appeal to the Tribunal within the prescribed period but that application was rejected following the expiration of the period for the bringing of proceedings in this Court; and 3. he thereafter sought legal advice, following which he brought the present application.

Consideration

1. The delay in bringing the present proceedings is relatively short. However, nothing advanced by the plaintiff provides a cogent explanation of why the proceedings were commenced out of time.
2. Moreover, in my view, the plaintiff's proposed appeal has no prospects of success. Having regard to the provisions of s. 83 of the Act, appeals to this Court from decisions of the Tribunal are appeals by leave and are limited to appeals on a question of law. The decision of the Tribunal to dismiss the proceedings brought by the plaintiff was a discretionary one. It is clear that the Tribunal exercised its discretion having regard (inter alia) to the conduct of the plaintiff in which he (inter alia) repeatedly applied for adjournments of the proceedings on what might be described as questionable bases, failed to comply with orders made by the Tribunal, and generally failed to properly prosecute the proceedings which he had instituted. It is evident, in particular, the Tribunal viewed the plaintiff's various applications to adjourn the proceedings with considerable scepticism. The Tribunal was completely justified in taking that approach.
3. On the evidence before me, there is no basis upon which to conclude that in exercising its discretion to dismiss the proceedings, the Tribunal erred, or that its discretion otherwise miscarried in any way, let alone in a way which would give rise to any question of law.

ORDERS

1. I make the following orders: 1. The application for an extension of time is refused. 2. The proceedings are dismissed. 3. The question of costs of the proceedings is reserved. 4. Absent reaching any agreement as to costs, the parties are to file written submissions with my Associate by Friday 2 February 2018, such submissions not to exceed two pages in length.

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: 15 December 2017