Kelly v Szatow

[2020] NSWSC 407

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kelly v Szatow [2020] NSWSC 407

Hearing dates:

16 July 2019

Date of orders:

16 April 2020

Decision date:

16 April 2020

Jurisdiction:

Common Law - Administrative Law

Before:

Harrison AsJ

Decision:

THE COURT ORDERS THAT:

 

(1) The plaintiff’s application for an extension of time to file an appeal is refused.

 

(2) The plaintiff’s application for leave to file an amended summons is refused.

 

(3) The plaintiff’s application for leave to appeal in relation to, firstly, the decision of the Senior Member of NCAT as to costs dated 4 May 2019 in proceedings 2017/343156 and 2017/242149; secondly, the decision of the Senior Member of NCAT as to costs dated 2 July 2018 in proceedings 2017/343134; and thirdly, the decision of the Appeal Panel of NCAT dated 24 July 2018 in proceedings 2018/22632; are refused.

 

(4) The plaintiff’s appeals in relation to, firstly, the decision of the Senior Member of NCAT dated 21 February 2018 in proceedings 2017/343156 and 2017/242149; and secondly, the decision of the Senior Member of NCAT dated 5 June 2018 in proceedings 2017/343134; are dismissed.

 

(5) In proceedings 2017/343156 and 2017/242149, the decisions of the Senior Member of NCAT dated 21 February 2018, and as to costs dated 4 May 2019, are affirmed.

 

(6) In proceedings 2018/22632, the decision of the Appeal Panel of NCAT dated 24 July 2018 is affirmed.

 

(7) In proceedings 2017/343134, the decisions of the Senior Member of NCAT dated 5 June 2018, and as to costs dated 2 July 2018, are affirmed.

 (8) Costs are reserved.

Catchwords:

APPEAL – NSW Civil and Administrative Tribunal – Appeal in relation to five decisions concerning the Local Government Act 1993 (NSW) – Where the Tribunal lacked jurisdiction to hear the plaintiff’s claim – Where there was no evidence to support the plaintiff’s claim – Application of cl 29 Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) to appeal a “profession decision” to the Supreme Court – Leave to appeal in relation to three costs decisions refused – Appeal in relation to two remaining decisions dismissed

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 28, 29, 60, 82, 83; cl 29 Sch 5
Civil Procedure Act 2005 (NSW), ss 56, 57, 58
Local Government Act 1993 (NSW), ss 329, 440
Local Government (General) Regulation 2005 (NSW), reg 290
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 50.3, 50.12, 50.16A

Cases Cited:

Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATOD 137
Attorney General v Wentworth (1988) 14 NSWLR 481
Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; (2003) 202 ALR 450
Bauskis v Liew [2013] NSWCA 297
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Bourne v Murphy [1996] NSWCA 59
Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582
Briscoe-Hough v Tegg [2018] NSWCATAD 108
Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3
Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134
Crane v Mission to Seafarers Newcastle Inc [2018] NSWSC 429
Davis v NSW Land and Housing Corporation [2016] NSWCA 325
Doula Spirit Pty Ltd v Andrew Argyrou [2014] NSWCATCD 227
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088
Gallo v Dawson (1990) HCA 30; 93 ALR 479
Gaynor v Burns [2016] NSWCA 44
House v The King (1936) 55 CLR 499
Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]
Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13
Jones v Sutton (No 2) [2005] NSWCA 203
Kelly v Smith [2018] NSWCATAD 122
Kelly v Szatow [2018] NSWCATOD 64
Kirk v Industrial Relations Commission of New South Wales [2010] HCA
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; 241 CLR 390
Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262
McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17]
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration v SZVFW [2018] HCA 30; 357 ALR 408
Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289
Tomko v Palasty (No 2) [2007] NSWCA 369 at [55]
Trust Company Ltd v Diamond Certification Laboratory of Australia Pty Ltd [2016] NSWCATAP 63
Uniform Civil Procedure Rules 2005 (NSW)
Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118
Whall v Stamp [2019] NSWCA 163
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
Woodhouse v Thalis [2018] NSWCA 97

Texts Cited:

Category:

Procedural and other rulings

Parties:

Peter Kelly (Plaintiff)
Cheryl Szatow (First Defendant)
Martin Smith (Second Defendant)
Donna Greenfield (Third Defendant)
Jeff Pettett (Fourth Defendant)

Representation:

Counsel:
PE King (Plaintiff)
M Hall (Defendants)

  Solicitors:
Robert Balzola and Associates (Plaintiff)
Colin Biggers & Paisley (Defendants)

File Number(s):

2019/96146

Publication restriction:

Nil

Road map

Judgment

The Local Government and Smith Proceedings

Chronology of decisions

Reasons for the Local Government costs decision

Reasons for the Appeal Panel Decision

Reasons for the Smith Decision

Reasons for the Smith costs decision

Whether an extension of time should be granted to appeal

Explanation for delay

The plaintiff’s submissions

The defendants’ submissions

Consideration

Whether leave should be granted to file the amended summons

The plaintiff’s summons filed 27 March 2019

The plaintiff’s amended notice of motion filed 4 June 2019

The plaintiff’s submissions

The defendants’ submissions

Consideration

The appeal to this Court

The relevant provisions of the CAT Act

Leave to appeal

The plaintiff’s submissions

The defendants’ submissions

Principles governing leave to appeal

The grounds of appeal set out in the amended summons filed 4 June 2019

Grounds 3(a), (c), (d), (f) and (g)

The plaintiff’s submissions

The defendants’ submissions

Consideration

Ground 3(i)

The plaintiff’s submissions and further written submissions as to jurisdiction and costs

The defendants’ submissions

Consideration

Ground 3(b)

The plaintiff’s submissions

The defendants’ submissions

Consideration

Grounds 3(e) and (h)

The plaintiff’s submissions

The defendants’ submissions

Consideration

Ground 3(j) – That the Tribunal gave insufficient reasons for its decisions

The plaintiff’s submissions

The defendants’ submissions

Consideration

Ground 3(k)

The plaintiff’s submissions

The defendant’s submissions

Consideration

Resolution

Result

Costs

THE COURT ORDERS THAT:

Judgment

1. HER HONOUR: These proceedings concern an appeal in respect of five determinations made in the NSW Civil and Administrative Tribunal (“the Tribunal”).

2. The plaintiff in the proceedings is Mr Peter Kelly. The first defendant is Ms Cheryl Szatow, the second defendant is Mr Martin Smith, the third defendant is Ms Donna Greenfield and the fourth defendant is Mr Jeff Pettett. All of the parties are Councillors on Ku-ring-ai Council.

3. There are three notices of motion before the Court for determination.

(1)   The first, filed by the plaintiff on 17 May 2019, seeks:

1. A stay of proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) in relation to the cost assessment applications in the following matters:

2. Martin Smith v Peter Kelly in Cost Assessment Case Number 2019/80649;

3. Cheryl Szatow v Peter Kelly in Cost Assessment Case Number 2019/75900;

4. Cheryl Szatow v Peter Kelly in Cost Assessment Case Number 2019/343149; and

5. Martin Smith v Peter Kelly in Cost Assessment Case Number 2019/343156;

until the date of determination of the matters before this Court in these proceedings.

6. In the alternative, a stay at common law in the inherent jurisdiction of this Court for the matter referred in [1], until date of determination of the matters before this Court in these proceedings.

My understanding is that the defendants will not enforce the decisions until after this judgment is handed down. As such, I do not need to deal with the stay application.

1. The second is the defendants’ notice of motion filed 27 May 2019 seeking orders that:

1. The following interlocutory issues be determined in advance of any substantive hearing in the proceedings:

(a) whether leave is required pursuant to r 50.3 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), and if so, whether it should be granted to the plaintiff to bring the proceedings given the time in which the proceedings were commenced;

(b) whether leave is required pursuant to ss 82, 83 and/or cl 29, Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the CAT Act”), and if so, whether it should be granted to the plaintiff to bring the proceedings insofar as they concern appeals from the Tribunal in relation to costs;

(c) whether leave is required pursuant to cl 29, Sch 5 of the CAT Act, and if so, whether it should be granted to the plaintiff to bring the proceedings insofar as they concern appeals from the Tribunal on questions other than law;

(d) whether the proceedings should be dismissed pursuant to UCPR 13.4; and

(e) further, or in the alternative, whether the proceedings should be dismissed as incompetent pursuant to UCPR 50.16A.

2. Leave to bring the proceedings out of time be refused.

3. Further or in the alternative, leave to bring proceedings in so far as they concern appeals from NCAT in relation to costs be refused.

4. Further or in the alternative, leave to bring the proceedings in so far as they concern appeals from NCAT on questions other than law be refused.

5. Further or in the alternative, the proceedings be dismissed pursuant to UCPR 13.4 and/or UCPR 50.16A.

4. The third is the plaintiff’s amended notice of motion dated 4 June 2019 seeking an extension of time to file the appeal pursuant to UCPR 50.3(1)(c) and leave to amend his summons filed 27 March 2019.

5. The parties rely upon a joint court book.

6. At the outset of the hearing for these proceedings, counsel for the plaintiff agreed to deal with the orders sought in paras [2]-[5] of the defendant’s notice of motion, and agreed that the orders sought in para [1] of the defendant’s notion of motion should be dismissed (T 19-20). For reasons which I set out later in this judgment, it will not be necessary to consider order [5] of the defendant’s notice of motion.

7. I will deal with the issues raised in the following order, noting that some of the considerations in relation to these issues overlap:

1. firstly, whether an extension of time should be granted to appeal;

2. secondly, whether leave should be granted to file the amended summons; and

3. thirdly, the appeal to this Court.

The Local Government and Smith Proceedings

8. Before I turn to consider extension of time, it is convenient that I set out a chronology and reasons for the Tribunal decisions that are the subject of this appeal.

Chronology of decisions

9. On 25 October 2017, the plaintiff filed two applications in NCAT pursuant to s 440 of the Local Government Act 1993 (NSW). These applications were made against Ms Szatow (in NCAT proceedings 2017/343149) and Messrs Smith, Pettett and Ms Greenfield (in NCAT proceedings 2017/343156) (collectively, “the Local Government Proceedings”). These applications sought orders in relation to the regulation of a “code of conduct” complaint that the plaintiff had made against the respondents on 15 October 2017.

10. On the same day, 25 October 2017, the plaintiff filed another application in NCAT, this time pursuant to s 329 of the Local Government Act against Mr Smith (in NCAT proceedings 2017/343134) (“the Smith Proceedings”). This application alleged that a candidate information sheet completed by Mr Smith, asserting that he had no close association with a property developer, was false. It argued that as a result, the candidate information sheet caused an irregularity in the manner in which he had been elected and determined that he should therefore be disqualified from office. Specifically, the plaintiff alleged that Mr Smith had failed to disclose whether he was a property developer or close associate of a corporation that, or an individual who, was a property developer in accordance with reg 290 of the Local Government (General) Regulation 2005 (NSW) (“the Local Government Regulation”).

11. On 21 February 2018, The Local Government Proceedings were heard concurrently and dismissed (“the Local Government Decision”).

12. On 4 May 2018, the plaintiff was ordered to pay the defendants’ costs of the Local Government Proceedings. This costs decision is Kelly v Szatow [2018] NSWCATOD 64 (“the Local Government Costs Decision”).

13. The plaintiff subsequently appealed the Local GovernmentCosts Decision to an Appeal Panel. On 24 July 2018, an Appeal Panel reviewed this decision. The appeal was dismissed, and costs were ordered against the plaintiff (“the Appeal Panel Decision”). Reasons were delivered ex tempore in relation to both the dismissal of the appeal and the question of costs.

14. On 4 May 2019 the Smith Proceedings were heard in the Tribunal. In a decision handed down on 5 June 2018, the Smith Proceedings were dismissed. Written reasons were delivered in Kelly v Smith [2018] NSWCATAD 122 (“the Smith Decision”). Costs were ordered against the plaintiff on 2 July 2018 by written reasons delivered in Kelly v Smith (No 2) [2018] NSWCATAD 141 (“the Smith Costs Decision”).

15. I have set out a summary of the reasons provided for the relevant decisions here. In so doing, I acknowledge that I have largely adopted the defendants’ submissions.

Reasons for the Local Government costs decision

16. The reasons for the Local Government Decision are recorded in the Local Government Costs Decision. These reasons record that at the hearing of the Local Government Proceedings, the plaintiff conceded, and it became common ground, that the matter was not within NCAT’s jurisdiction. This concession was clear, unambiguous and unequivocal. The plaintiff also repeated in the hearing before the Appeal Panel that he had conceded at the hearing of the Local Government Decision that the Tribunal had no jurisdiction to deal with the matter, and he made no argument to the contrary.

17. The reasons for the making of the Local Government Decision can be summarised as follows:

1. the Tribunal was satisfied that:

1. the plaintiff had received the respondents’ submissions in relation to jurisdiction;

2. the plaintiff nonetheless continued the proceedings and made no attempt to discontinue them, despite being on notice of the respondents’ arguments regarding jurisdiction; and

3. the proceedings were dismissed for want of jurisdiction.

2. The above circumstances constituted special circumstances such that costs should be ordered, although an application for indemnity costs was rejected.

18. In summary, the Tribunal determined that the plaintiff’s applications lacked merit. Once the plaintiff had been given the respondents’ arguments regarding jurisdiction the decision to continue proceedings amounted to an abuse of process.

Reasons for the Appeal Panel Decision

19. In considering the plaintiff’s appeal from the Local Government Costs Decision, the Appeal Panel began its decision by identifying the relevant questions for determination. The Appeal Panel held that neither the Local Government Decision nor the Local GovernmentCosts Decision were “internally appealable decisions”, and therefore concluded it did not possess the requisite jurisdiction to hear and determine the appeal.

20. The Appeal Panel nevertheless considered the other issues in the appeal, in the event it was wrong on the question of jurisdiction. It found the plaintiff’s appeal did not disclose any question of law. The Appeal Panel concluded that the Tribunal correctly identified the need for special circumstances before making the costs order in the Local Government Costs Decision.

21. The Appeal Panel concluded that the Tribunal had correctly applied relevant legal principles and that the discretion to award costs did not miscarry. The Appeal Panel also held that even if it had jurisdiction, leave to bring the appeal should not be granted because there was no issue of principle or public importance. The Appeal Panel found that special circumstances existed and accordingly made an order for costs in favour of the respondents.

Reasons for the Smith Decision

22. In the SmithDecision at [25], the Tribunal first found that there was no evidence to support that the information in the candidate information sheet was incorrect. In cross examination, the plaintiff conceded that despite “scouring” the internet, he had not obtained any information to support his application aside from ASIC searches that he obtained after the commencement of proceedings. He had also accepted that he had no evidence to contradict Mr Smith’s affidavit concerning the accuracy of the Candidate Information Sheet: see [13] of the Smith Decision.

23. In the Smith Decision at [26], the Tribunal also found that even if the information was found to have been incorrect, there was no evidence that the irregularity would have resulted in a different outcome to the election.

24. Therefore, in order for the plaintiff to successfully appeal the Smith Decision in this Court, it is necessary to appeal not only the second limb of the Tribunal’s reasoning, but the first, which entails overturning a finding as to the state of the evidence concerning the accuracy of the Candidate Information Sheet.

Reasons for the Smith costs decision

25. In the SmithCostsDecision at [15]-[16], the Tribunal found that the plaintiff’s application was “so weak as to be untenable” and “so obviously untenable or manifestly groundless as to be utterly hopeless” and in this sense vexatious.

26. The Tribunal noted that the plaintiff did not make any submission to counter this argument. Although the Tribunal found that this amounted to special circumstances, it declined to order indemnity costs: see [17]-[19] of the Smith Costs Decision.   

Whether an extension of time should be granted to appeal

27. On 4 June 2019, the plaintiff filed a notice of motion seeking an order granting an extension of time to file the appeals under UCPR 50.3(1)(c). The defendants opposed the granting of such an order.

28. Rule 50.3 of the UCPR provides guidelines concerning the time for appeal. It states:

“50.3 Time for appeal

(cf SCR Part 51A, rule 3)

(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 subr (1)(c) must be included in the summons commencing the appeal.”

29. The material date in these proceedings is the date on which notice of the decision was provided to the plaintiff. The material dates of the Appeal Panel Decision, the Smith Decision and the Local Government Costs Decision are 24 July, 5 June and 4 May 2018 respectively.

30. The plaintiff filed his summons in relation to the Appeal Panel Decision 7 months out of time, his summons in relation to the Smith Decision 8 months out of time and his summons in relation to the Local Government Costs Decision 9 months out of time.

31. The principles that apply to an extension of time to appeal are well established. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff’s case and consideration of whether the defendants would be prejudiced by a granting of the application: see Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty(No 2) [2007] NSWCA 369 at [55].

32. The plaintiff bears the onus of demonstrating that strict compliance with the timeframe would work an injustice upon him: see Gallo v Dawson (1990) HCA 30; 93 ALR 479 (“Gallo”). In Gallo, McHugh J stated at [2]:

“[2] …The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:

‘The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.’”

Explanation for delay

33. The plaintiff’s explanation for delay is set out in his affidavit of 27 May 2019 and can be summarised as follows.

34. In 2007, the plaintiff was diagnosed with Post Traumatic Stress Disorder.

35. In 2016, he was appointed by former Senator Brian Burston to the position of Parliamentary Advisor.

36. In 2017, he was elected a Councillor to Ku-Ring Gai council.

37. In March 2018, the plaintiff says that he was unfairly dismissed as a parliamentary advisor.

38. On 24 July 2018, the decisions in the Tribunal were determined in the Appeal Panel decision.

39. The 28 day period to appeal the decision of the Appeal Panel expired on 22 August 2018. The plaintiff says that he was “pre-occupied with the immediacy of the Unfair Dismissal impact which affected [his] personal relationship” [37].

40. Since April 2018, the plaintiff says that he has been “subjected to psychiatric assessment and medical treatment…resulting in loss of cohesion and attentiveness in making prompt application to this Court for full appeal of the decisions of the Tribunal” [38].

41. During August 2018, he says that he was “affected by a number of threatening telephone calls which were reported to the Police” [38].

42. In 2019, the plaintiff “applied for Comcare compensation which again was time delimited and consumed much of [his] time”. The plaintiff claims that the claim “consumed entirely [his] immediate time and energies in order to comply with that statutory framework” [39].

43. The plaintiff continues to receive counselling from psychiatrist Dr Graham Altmann and psychologist Dr Kathi Pauncz.

44. The plaintiff explained that he “simply lost sight of the time and was unaware of [his] appeal rights against the primary decisions below in making this Application out of time” [40].

45. The plaintiff relied on a report of his psychologist, Kathi Pauncz, dated 8 June 2019 (Ex A). Ms Pauncz opined at [4]-[7]:

“I understand Mr Kelly is seeking leave to file an Appeal in the Supreme Court regarding a matter which he says is of public interest, relating to his work as a Councillor on the Ku-ring-Gai Council and that a delay occurred in making that application between approximately the third week in September 2018 and early March 2019.

In my view that delay of approximately five months can possibly be explained by his PTSD as it is common for people with PTSD to procrastinate and to avoid dealing with issues particularly when those issues are stressful.

Mr Kelly said one of the coping mechanisms he has adopted is to avoid engaging with communication from official sources (e.g. he does not open letters) and he said he avoids anything where he might be required to commit himself to something even mildly significant.”

The plaintiff’s submissions

46. Pursuant to UCPR 50.12(4)(c), the plaintiff submitted that leave to appeal out of time should be granted for the following reasons:

1. He was the subject of an unfair dismissal claim placing him under severe financial difficulty at the time the proceedings arose, which made it difficult for him to focus on the present dispute.

2. He was diagnosed with psychiatric trauma and depression which affected him during this period.

3. He was a first-time councillor and was unaware of his rights to complain of his mistreatment as a councillor and maladministration by the Council.

4. The Tribunal erred in construing and applying the statutory tests as to whether s 329 of the Local Government Act was breached by each defendant in his or her capacity as a councillor and as to costs.

5. These proceedings are a matter of public interest.

The defendants’ submissions

47. The defendants submitted that leave to appeal out of time should be refused for the following reasons:

1. The delay in question is significant and gross.

2. The plaintiff’s evidence that attempts to explain the delay is wholly unsatisfactory. It is irrelevant whether he was aware of his appeal rights or not. The fact of the matter is that he chose to spend his time pursuing other litigation or compensation claims instead of directing his attention and obtaining legal advice with respect to the decisions he now seeks to appeal. On his own evidence, he did not seek legal advice until March 2019. There is no apparent reason why that could not have occurred in mid-2018, but for the plaintiff’s own decision not to prioritise these matters. Further, the opinion expressed by his treating psychologist Ms Pauncz, going to the effect his mental health may have had in bringing this proceeding is of no probative weight. It sets the bar at nought. If the “explanation” provided by the plaintiff is found to warrant the granting of leave it will have the effect of rendering the time limitations imposed by the Court’s rules as meaningless for future matters.

3. Leave should be refused when regard is had to the history of the proceedings and the plaintiff’s conduct before the Tribunal. This includes findings that the Local Government Proceedings lacked merit and that their continuation was an abuse of process. It similarly includes findings that the Smith Proceedings were vexatious in the sense that they were manifestly groundless and utterly hopeless. It is significant that neither the summons nor the proposed summons seeks to appeal those particular findings. Further, the plaintiff conceded that the Tribunal lacked the jurisdiction to determine the Local Government Proceedings. He also acknowledged in the Smith Proceedings during cross examination that he had no evidence contrary to the respondent's evidence attesting to the accuracy of the Candidate Information Sheet. To the extent that these proceedings seek to appeal the Local Government Decision and SmithDecision they therefore constitute an attempt by the litigant to resile from concessions unequivocally and clearly made. There is no evidence as to why the plaintiff should be allowed to resile from those concessions. Such conduct is a significant reason why leave to appeal out of time should be refused.

4. The nature of the litigation in question is not unique, special, or a matter of public importance warranting the grant of leave. This is particularly so in the cases with the Local Government Costs Decision, SmithCosts Decision and Appeal Panel Decision. There, the nature of the litigation relates solely to questions of costs dependant on the particular chronology and course of conduct between the parties. As stated in the Appeal Panel Decision, they are “orthodox decisions” correctly arrived at in the usual course. The Smith Decision and Local Government Decision do not raise any question of principle or a matter of public interest warranting the grant of leave. The Local Government Decision is a decision by the Tribunal stating it lacks jurisdiction, when that fact was “common ground” between the parties and no application has been made by the plaintiff to resile from that concession. It would be contrary to public interest to grant leave in such circumstances. The SmithDecision similarly raises no question of principle, decided as it was principally on the basis of a factual finding (that there was no evidence at all to establish the Candidate Information Sheet was incorrect).

5. The prospects can only be said to be poor. This is another reason why leave to appeal out of time should be refused. It is concerning that despite the lengthy passage of time, retention of representation, and formulation of an amended summons, the plaintiff can still not clearly identify questions of law or fact he seeks to appeal from (or any questions of law that would have utility).

6. If leave is granted it will cause significant prejudice to the defendants. The time limitations in bringing an appeal are, in part, to safeguard defendants from the time and expense inherent in protracted litigation. The defendants will be exposed to such expense, with little hope of recourse from a plaintiff who openly acknowledges he is in a precarious financial position. It is also not proportionate or appropriate to grant leave in these proceedings.

Consideration

48. The appeal was lodged seven months out of time. The plaintiff’s explanation is that he suffers from PTSD. His psychologist opines that the delay of approximately five months “can possibly” be explained by his PTSD, as it is common for people with PTSD to procrastinate and avoid dealing with issues, particularly when those issues are stressful. Nevertheless, in 2018 after the NCAT decisions were handed down, the plaintiff says that he was able to deal with a Comcare claim which consumed his immediate time and energy.

49. The plaintiff says that he lost track of time and was unaware of his appeal rights in relation to the primary decisions of NCAT. However, he did not seek any advice as to his appeal rights in these proceedings until March 2019. It therefore appears that the plaintiff simply elected to prioritise pursuing his employment compensation claim, in respect of which he was able to comply with relevant time frames.

50. So far as the plaintiff’s prospects of success are concerned, the Tribunal has made findings that the Local Government Proceedings lacked merit and that their continuation was an abuse of process. The Tribunal similarly found that the Smith Proceedings were vexatious in the sense of being manifestly groundless and utterly hopeless. At the Tribunal, the plaintiff conceded that it lacked jurisdiction to determine the Local Government Proceedings. He also acknowledged in the Smith Proceedings that he possessed no evidence that was contrary to the respondent’s evidence that supported the accuracy of the Candidate Information Sheet. To the extent that these proceedings seek to appeal the Local Government Decision and the Smith Decision, the plaintiff attempts to resile from concessions he made at the hearing. Taking these matters into account, the prospects of success are poor.

51. While it may be possible that ss 329 and 440 of the Local Government Act concern matters of public importance, the issues raised in this appeal do not, as the plaintiff is bound by the way he ran the litigation in the Tribunal.

52. For these reasons, and in the exercise of my discretion, I refuse the plaintiff’s application to extend time to appeal.

53. In the event that I am wrong, I will turn to consider the plaintiff’s application for leave to file the amended summons.

Whether leave should be granted to file the amended summons

The plaintiff’s summons filed 27 March 2019

54. On 27 March 2019, the plaintiff filed a summons seeking to appeal the SmithDecision, the Local GovernmentCosts Decision and the Appeal Panel Decision. He subsequently filed a statement of grounds identifying three grounds of appeal.

55. In his summons, the plaintiff sought firstly to appeal the Smith Decision, the Local Government Costs Decision and the Appeal Panel Decision pursuant to cl 29(2)(b), Sch 5 of the CAT Act. Clause 29(2)(b) provides for a party to proceedings in which a “profession decision” is made to appeal against the decision to the Supreme Court.

56. Secondly and in the alternative, the plaintiff sought leave to appeal on a question of law against those three decisions.

57. Thirdly and in the in alternative, the plaintiff sought orders affirming, setting aside, varying or remitting the matters to be heard by the Tribunal in accordance with the directions of the Court.

58. Fourthly, the plaintiff sought leave to appeal a decision as to costs in accordance with the requirement set out in cl 29(6), Sch 5 of the Cat Act.

The plaintiff’s amended notice of motion filed 4 June 2019

59. On 4 June 2019, the plaintiff filed an amended notice of motion seeking leave to amend the summons to expand his appeal to the Local Government Decision, the Local Government Costs Decision, the Appeal Panel Decision, the Smith Decision and the SmithCosts Decision.

60. In lieu of the orders sought in the summons filed 27 March 2019, the plaintiff by the proposed amended summons sought a number of orders. They are:

“1. Leave pursuant to UCPR Rule 6.19, in circumstance where the proceedings in this Court involve common questions of law and fact with respect to each NCAT decision challenged herin and in respect of each Defendant before NCAT and/or arise out of the same factual matrix, that the Defendants each be joined in this originating process.

2. Leave to appeal from the whole of [the Local Government Decision, Local Government Costs Decision, Appeal Panel Decision, Smith Decision and Smith Costs Decision] with respect to the following questions not being questions of law and pursuant to clause 29(4)(b) of Part 6, Schedule 5 of [the CAT Act], namely whether or not there is evidence with respect to each of the Defendants that demonstrates on the balance of probabilities facts consistent with a contravention of Local Government Act 1993 s 329 as alleged by the Plaintiff in NCAT with respect to the matters herein.

3. Extension of time to appeal under UCPR Rule 50.3(1)(c) to the filing of the Summons herein on 27 3 2019.

4. Orders pursuant to clause 29(2)(b), 4(b), (7) and (8) of Part 6, Schedule 5 of [the CAT Act].

5. Appeal allowed.

6. Order that each determination of NCAT in respect of ach NCAT proceeding specified herein be set aside or reviewed and/or quashed under clause 29(8), Part 6, Schedule 5 of [the CAT Act], and that another decision be substituted for such determination namely that sought against each Defendant in NCAT or that each proceeding be remitted to NCAT for determination according to law.

…”

61. In lieu of the statement of grounds filed 4 January 2019, the plaintiff outlined the grounds on which he sought to appeal the Tribunal’s decisions as follows:

“1. [rule 50.12(3)(a)] The appeal relates to the whole of each decision challenged herein made in the court below.

2. [rule 50.12(3)(b)] In place of the decision below (as specified in Details of Appeal paragraph above) the Plaintiff seeks in each case an order setting aside the dismissal of each complaint of the Plaintiff by NCAT and of each adverse costs order and the relisting of each complaint before NCAT for determination according to law consequential upon the decision of this Honourable Court as sought herein or alternatively that another decision be substituted for each such determination namely that sought by the Plaintiff against each Defendant in NCAT and/or that this proceeding be remitted to NCAT for determination according to law.

3. [rule 50.4(2)] The grounds relied on in support of the appeal are:

a. each decision misconstrued or misapplied Local Government Act 1993 s 329;

b. each decision misconstrued [CAT Act] schedules 3 and 5;

c. NCAT erred in admitting evidence which was not admissible under CAT Act;

d. NCAT erred in holding that there was no evidence that the Candidate Information Sheet was incorrect in any respect or that the result of the alleged irregularity would have rendered the results of the election uncertain;

e. NCAT failed to exercise natural justice and/or failed to proceed according to law by not making available to the Plaintiff as an unrepresented person legal representation or in giving directions to that effect or in failing to inform and assist him to the fullest extent appropriate the issues and evidence;

f. NCAT erred in law in applying tests relevant to disputed returns and in holding that ‘it was necessary for the Plaintiff to show the irregularity would have resulted in a different outcome’;

h. NCAT erred in law in construing [the CAT Act] in applying strict common law rules of evidence and/or in finding that there was ‘no evidence to show the irregularity would have resulted in a different outcome’;

i. NCAT constructively failed to exercise its jurisdiction with respect to the matter or matters before it;

j. Further or alternatively each decision was made in excess of jurisdiction;

k. NCAT erred in failing to give any or sufficient reasons for its decision(s) of 21 2019, 5 6 2018 and 24 7 2018;

l. Each costs decision misconstrued or misapplied [CAT Act] s 60(3) with respect to the issue of exceptional circumstances.”

62. In accordance with UCPR 50.12(4), the plaintiff further stated:

“a. [rule 50.12(4)(a)] The nature of the case arises from the Plaintiff’s contention that each cause of action of the Defendants before nCAT and the subject of this Summons is in respect of or arises out of the same transaction or series of transactions, or gives rise to a common question of law or of fact namely the pecuniary or other interest of councillors on the Hornsby Council and whether or not s 329 Local Government Act 1993 were breached in respect of such interest(s) and whether or not NCAT had jurisdiction and power to address those questions and erred in not doing so and/or in ordering costs against the Plaintiff for bring such complaint(s) [sic].

b. [rule 50.12(4)(b)] The reasons why leave should be given are that NCAT erred in construing and applying the statutory tests as to whether s 329 LGA was breached by each Defendant in his or her capacity as a councillor, and incorrectly had regard to disputed common law tests as to disputed returns rather than the statutory tests under the LGA framework, and erred in construing and applying the statutory discretions and powers as to costs under CAT Act s 60 and that integrity should be done and should be seen to be done in the conduct of local government as raised by the Plaintiff herein is in the public interest.

c. [rule 50.12(4)(c)] The reasons why time to apply for leave should be extended are that:

i. the Plaintiff was subjected to a fierce and disputed unfair dismissal claim placing him under severe financial [sic] at the time the proceedings arose and which made it difficult for him to focus on the present dispute;

ii. the Plaintiff has been diagnosed with psychiatric trauma and depression which affected him during the period;

iii. the Plaintiff was a first time councillor and was unaware of his rights to complain of his mis-treatment as a councillor and maladministration by the Council;

iv. NCAT erred in construing and applying the statutory tests as to whether s 329 LGA was breached by each Defendant in his or her capacity as a councillor and as to costs;

v. The interests of justice including the public interest.”

63. The proposed amended summons is the plaintiff’s first attempt to seek an appeal in respect of the Local Government Decision and the Smith Costs Decision. The appeals in respect of these two decisions have been brought over 15 and 10 months out of time, respectively.

The plaintiff’s submissions

64. At the hearing of these proceedings, counsel for the plaintiff submitted that the amendments to the summons are required in order to conform with court rules and to clarify the issues in question.

The defendants’ submissions

65. The defendants submitted that the amended motion should be dismissed because the proposed amended summons is futile, bound to fail and fails to properly identify questions of law. In addition, there has been a delay in bringing the amendment motion.

66. The defendants maintain that the plaintiff foreshadowed an amendment of his summons. He was ordered to file any such motion by 13 May 2019. No such motion was filed. The defendants wrote to the plaintiff on 27 May 2019 indicating they were proceeding on the basis that no such amendment was being pressed. On 31 May 2019, the plaintiff made no indication to the Court or sought any orders re-agitating an amendment application, despite the matter being raised by counsel. Notwithstanding this, on 3 June 2019, the plaintiff wrote to the defendants indicating an intention to rely on the proposed amended summons. The amended motion was filed the following day. As late as 8 July 2019, the defendants’ lawyers wrote to the plaintiff’s lawyers seeking confirmation that the amended motion was being pressed, in circumstances where it was omitted from the plaintiff’s own proposed index to the court book.

67. Further, the defendants submitted that the plaintiff has not given an explanation for his delay in bringing the amendment motion that that this Court has not been equipped with the evidence it requires to properly engage the weighting exercise required under ss 56-58 of the Civil Procedure Act. The defendants maintain than an explanation for delay is a jurisdictional threshold required before the Court may exercise its discretion to grant leave. The plaintiff has elected not to put on evidence sufficient to meet that threshold requirement. As such, the amended motion should be dismissed.

Consideration

68. The defendants do not consent to the filing of the amended summons. The plaintiff foreshadowed filing a motion to amend his summons by 13 May 2019. When he had not done so by 27 May 2019, the defendants wrote to him indicating that they would proceed on the basis that he was not pressing the amendment.

69. It was not until 3 June 2019 that the plaintiff wrote to the defendants’ solicitors indicating that it would rely on the proposed amended summons, which caused further delay.

70. The plaintiff has failed to comply with court directions and with no proper explanation. In these circumstances, it is my view that I should not grant leave to the plaintiff to amend his summons. However, in the event that I am wrong, I will deal with the issues raised in the amended summons and the amendments sought, as the defendants have provided submissions.

The appeal to this Court

71. Paragraph (3) of the defendants’ notice of motion seeks that leave to appeal from the NCAT costs decisions be refused. Paragraph (4) of the defendants’ notice of motion seeks that leave to appeal from NCAT on questions other than law be refused.

72. Despite the defendants’ separation of these issues, the grounds of review as articulated in the plaintiff’s amended summons do not separately address the appeals in relation to the costs decisions, and the appeals in relation to questions other than law. Rather, the plaintiff’s grounds of appeal refer variously to “NCAT” or “each decision”.

73. Furthermore, for the reasons I discuss under the next heading, although leave is required to bring an appeal in relation to the Local Government Costs Decision, the Smith Costs Decision and the Appeal Panel Decision, the Local Government Decision and the Smith Decision may be appealed as of right.

The relevant provisions of the CAT Act

74. Sections 82 and 83 of the CAT Act govern appeals against appealable decisions. They read:

“82 Interpretation

(1) Each of the following kinds of decisions of the Tribunal is an appealable decision of the Tribunal for the purposes of this Division:

(a) any decision made by an Appeal Panel in an internal appeal,

(b) any decision made by the Tribunal in an external appeal,

…

(4) A reference to the Tribunal in another provision of this Division is to be read as a reference to an Appeal Panel if the appealable decision of the Tribunal concerned is a decision of an Appeal Panel.

…

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.

…

(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.

75. The Appeal Panel Decision is an appealable decision under s 82(1)(a). As such, s 83(1) of the CAT Act provides that the plaintiff must seek leave to appeal the Appeal Panel Decision and may seek to appeal only in respect of questions of law.

76. The Local Government Decision, Local GovernmentCosts Decision, SmithDecision and SmithCosts Decision are not appealable decisions under s 82 of the CAT Act. As such, the plaintiff appears to seek an appeal in relation to these decisions pursuant to cl 29, Sch 5 of the CAT Act. It relevantly reads:

“29 Certain profession decisions to be appealed directly to Supreme Court or Land and Environment Court

(1) Profession decisions not internally appealable Despite section 32 of this Act, each of the following Division decisions (a profession decision) is not an internally appealable decision for the purposes of an internal appeal:

…

(f) a decision for the purposes of the Local Government Act 1993 other than:

(i) a decision for the purposes of section 469 of that Act not to conduct proceedings into a complaint, or

(ii) a decision for the purposes of section 470 of that Act to determine proceedings into a complaint without a hearing,

…

(2) Right to appeal to Supreme Court or Land and Environment Court However, a party to proceedings in which a profession decision is made may appeal against the decision in accordance with this clause to:

(a) in the case of an order for the purposes of Division 3 of Part 5 or Division 4 of Part 7 of the Aboriginal Land Rights Act 1983 declaring a vacancy in an office - the Land and Environment Court, and

(b) in the case of any other decision - the Supreme Court.

…

(4) Basis or grounds for appeal an appeal to a court under this clause:

(a) in the case of an appeal against a decision for the purposes of the Legal Profession Uniform Law (NSW)—is an appeal to which section 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing rather than a new (de novo) hearing, and

(b) in the case of any other appeal (a non-lawyer appeal)—may be made as of right on any question of law, or with the leave of the court, on any other grounds.

…

(6) Leave required in certain cases despite subclauses (2)–(5), an appeal does not lie to a court under this clause against any of the following decisions except by leave of the court:

(a) an interlocutory decision of the Tribunal,

(b) a decision made with the consent of the parties,

(c) a decision as to costs.

(7) Non-lawyer appeals the court in a non-lawyer appeal may:

(a) decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and

(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.

(8) In determining a non-lawyer appeal, the court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:

(a) the decision under appeal to be confirmed, affirmed or varied,

(b) the decision under appeal to be quashed or set aside,

(c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(d) the whole or any part of the case to be reconsidered by the Tribunal at directions of the court.

…”

77. The Local Government Decision, Local Government Costs Decision, Appeal Panel Decision, Smith Decision and Smith Costs Decision are “profession decisions” under cl 29(1)(f), being decisions for the purposes of the Local Government Act. The Appeal Panel Decision is also a “non-lawyer appeal” under cl 29(4)(b).

78. It would appear that the effect of these provisions is as follows. Pursuant to cl 29(1)(b), Sch 5 of the CAT Act, the plaintiff may appeal as of right on a question of law, or with the leave of this Court on other grounds, in respect of the Local Government Decision and the Smith Decision. Pursuant to cl 29(6)(c), Sch 5 the CAT Act, the plaintiff may seek leave to appeal on a question of law in respect of the Local GovernmentCosts Decision and Smith Costs Decision. Finally, pursuant to either cl 29(6)(c), Sch 5 or s 83(1) of the CAT Act, the plaintiff may seek leave to appeal on a question of law in respect of the Appeal Panel Decision.

79. Because of the effect of these provisions, in addition to the framework of the plaintiff’s grounds of appeal, it is convenient that I address the issues raised in paras [3] and [4] of the defendants’ notice of motion as they arise in the plaintiff’s grounds of appeal and proposed grounds of appeal.

Leave to appeal

80. The grounds of appeal as they relate to the Local GovernmentCosts Decision, Appeal Panel Decision, and SmithCosts Decision require leave. The defendants oppose the granting of leave.

The plaintiff’s submissions

81. The plaintiff submitted that leave should be granted for the following reasons: firstly, because NCAT erred in construing and applying the statutory tests as to whether s 329 of the Local Government Act was breached by each defendant in his or her capacity as a councilor; secondly, on the basis that NCAT erroneously relied on disputed common law tests as to disputed returns rather than the statutory tests under the Local Government Act framework; and thirdly, because NCAT erred in construing and applying the statutory discretions and powers as to costs under s 60 of the CAT Act, and that because “integrity should be done and should be seen to be done in the conduct of local government”, the issues raised in the plaintiff’s appeal are in the public interest.

The defendants’ submissions

82. The defendants submitted that in order to appeal to this Court, a question of law is required, and even then, that does not of itself grant a right of appeal. Relevant factors to take into consideration of whether to grant leave include the length of the delay and the prospects of success of the appeal: Woodhouse v Thalis [2018] NSWCA 97.

83. Whenever considerations of leave are involved, it is appropriate for the Court to have regard to s 60 of the Civil Procedure Act. Further, the principle of finality in litigation must dictate that on appeal a litigant is bound by concessions made at first instance. This is relevant to the extent that any grounds of appeal seek to detract from concessions made and require leave to proceed. Further, no litigant, whether represented or not, should be afforded “special” treatment or allowances in the conduct of a hearing of another party. What is required by the obligation to afford procedural fairness is dictated by practical considerations and depends on the circumstances of the individual case: Whall v Stamp [2019] NSWCA 163; Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13; Bauskis v Liew [2013] NSWCA 297.

84. Issues of competency under UCPR, r 50.16A arise when there are issues as to whether the grounds put forward are capable of satisfying any necessary leave requirements and potentially when there are issues as to form and compliance with the rules in the summons: Crane v Mission to Seafarers Newcastle Inc [2018] NSWSC 429 at [25] per Davies J.

Principles governing leave to appeal

85. Two cases which set out the principles governing leave to appeal are Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (“Das”) and Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 (“Lee”).

86. In Das, the Court of Appeal set out the principles to be considered in deciding whether leave to appeal should be granted. At [32]-[33], [35], Basten JA stated:

“[32] The principles governing cases such as these have recently been restated in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. As Campbell JA noted (with the agreement of Young JA) at [22]:

‘It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute.’

[33] In Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Campbell JA, with the agreement of Young and Meagher JJA, expanded on his summary of Carolan, noting that Kirby P had recognised ‘that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable’: at [46].

…

[35] In Coulter v The Queen [1988] HCA 3; 164 CLR 350, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority noted that a leave requirement was a preliminary procedure ‘recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention’: at 356 (Mason CJ, Wilson and Brennan JJ). That statement is clearly applicable to civil, as well as criminal, appellate jurisdiction.”

87. Similarly, in Lee, Bathurst CJ at [12] outlined the principles relevant to the granting of leave as follows:

“[12] The principles upon which leave to appeal is granted are well established. Ordinarily it is only appropriate to grant leave concerning matters that involve issues of principle, questions of general public importance or where it is reasonably clear there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34].”

See also Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 at [19]-[21].

88. Where, as here, an appeal can only be on a question of law, then the absence of identifiable questions of law will obviously be fatal to a leave application.

89. An appeal on a question of law is not merely a qualifying condition to the right of appeal. Rather, the question of law must comprise the subject matter of the appeal: see Davis v NSW Land and Housing Corporation [2016] NSWCA 325 per McColl JA at [77]. Questions of law are not to be distilled from the grounds of appeal itself, but should be clearly identified: see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 per French CJ, Gummow and Bell JJ at [21]. Questions of law should not simply be statements to the effect that the Tribunal made legal errors, but should state questions of law to support the orders sought on appeal: see Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; (2003) 202 ALR 450 per Branson J at [47].

90. Further, s 60 of the Civil Procedure Act dictates that the practice and procedure of this Court should be implemented with the object of resolving the dispute in question proportionately with the importance and complexity of its subject-matter. Consequently, where the costs of the trial are disproportionate to the amount in dispute, the incurring of additional costs, for a potentially uncertain return, will be a factor weighing heavily against a grant of leave. That principle must apply with even more force where there has already been a trial and a first appeal.

91. Section 58 of the Civil Procedure Act requires this Court to act in accordance with the dictates of justice and applies in respect of an application for leave. One of the factors to be taken into account pursuant to s 58 is “the degree of injustice that would be stifled by the respective parties as a consequence of any order or direction”: s 58(2)(b)(vi). That provision recognises that questions of injustice are relative. The delay and cost of further litigation constitutes a form of injustice to the successful party below, whatever the outcome of the appellate process.

92. With these principles in mind, in relation to the decisions which require leave, I will consider whether the questions raised in the plaintiff’s grounds of appeal are more than merely arguable.

The grounds of appeal set out in the amended summons filed 4 June 2019

93. The amended grounds of appeal are set out at para [3] of the plaintiff’s amended summons and reproduced earlier in this judgment.

94. Although it is not clear from the amended summons, grounds 3(a), (c), (d), (f) and (g) must relate solely to the SmithDecision. It also appears from the plaintiff’s submissions that ground 3(i) relates to the Local GovernmentCosts Decision, SmithCosts Decision and Appeal Panel Decision. Ground 3(b) appears to relate to the SmithCosts Decision. Grounds 3(e) and (h) appear to relate to the SmithDecision and the SmithCosts Decision. Ground 3(j) appears to relate to the Local Government Decision and the Appeal Panel Decision. Finally, ground 3(k) must relate solely to the Local GovernmentCosts Decision, the SmithCosts Decision and the Appeal Panel Decision.

95. Plainly, the plaintiff has not separated his grounds of appeal in relation to the decisions which require leave to appeal, and those which may be appealed as of right. Where a ground of appeal relates to the Local Government Costs Decision, Appeal Panel Decision and/or Smith Costs Decision, I will consider whether the ground of appeal raises questions of law which are more than merely arguable, such as to grant leave. Where a ground relates to the Local Government Decision and the Smith Decision, for which leave is not required, I will consider whether to uphold the plaintiff’s appeal.

96. As several grounds relate to substantially similar alleged errors of law, it is convenient that I consider those grounds together. As such, I will consider the grounds of appeal in the following order: firstly, grounds 3(a), (c), (d), (f), and (g) together; secondly, ground 3(i); thirdly, ground 3(b); fourthly, grounds (e) and (h) together; fifthly, ground 3(j); and finally, ground 3(k).

28:35   Kelly: We may be back. Sorry. When I get the referral I mean.

28:40   Senior Member: Bring a referral I’ll deal with it.

28:44   Skehan: I don’t want to take this too much further. We put into our submission a few paragraphs of our costs. I’ll just leave that on the table as part of the submission...”

200. The Local Government Decision was delivered ex tempore. The plaintiff has produced no evidence that he requested written reasons and that they were refused. As the excerpt above makes clear, it was not the plaintiff who requested reasons, but Mr Greg Skehan, who acted as counsel for the defendants. In response, the Senior Member stated that his reasons were that the Tribunal lacked jurisdiction to hear the matter. Those reasons were further elaborated in the Local GovernmentCosts Decision, as outlined earlier in this judgment.

201. The Appeal Panel Costs Decision was also delivered ex tempore. The affidavit of Zoe Elliott dated 18 June 2019 contains a transcript excerpt from the hearing before the Appeal Panel on 23 July 2018. It relevantly reads (CB p 322-324):

“Now the issues for the Appeal Panel to determine are these: firstly, does the Appeal Panel have jurisdiction to hear and determine the appeal? Second, if so, has Mr Kelly established the question of law arises on the appeal? And third, alternatively, has Mr Kelly established that leave to appeal should be granted? And four, if leave, if the appeal is allowed, what orders should be made? We’ll turn first to the issue of jurisdiction.

…

The Tribunal found that it had no jurisdiction to hear and determine Mr Kelly’s substantive applications, which were brought under s 440 of the Local Government Act. We are satisfied that the Tribunal therefore had no jurisdiction to hear the application…Accordingly, both the Tribunal’s substantive decision, and more relevantly the Costs decision, are not internally appealable decisions under s 80 of the [CAT Act]. We therefore find that the Appeal Panel does not have jurisdiction to hear and determine the appeal.

…

In the Reasons for Decision, it is clear that the special circumstances found by…the Tribunal were primarily the fact that Mr Kelly’s applications were destined to fail, and that he was on notice of that from early in the proceedings. It is clear from the Reasons for Decision that the Tribunal correctly applied relevant legal principles in its assessment of the existence of special circumstances, and also applied relevant legal principles in considering whether, and if so how, to exercise the cost discretion. In such circumstances we are not satisfied that the discretion to award costs miscarried or that any question of law arises on the appeal.

…

The Tribunal’s decision relates solely to the issues between the parties. There is no issue of principle of public importance involved on the appeal. The Costs decision in our view was an orthodox decision correctly arrived at by the Tribunal.”

202. In considering this ground of appeal, I adopt the approach that this Court should not read the Senior Member’s or the Appeal Panel’s reasons “with an eye finely tuned for error”: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [67] per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291.

203. The standard to which the Tribunal’s reasons are to be held is set out in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (“Wingfoot”). Relevantly, the High Court in Wingfoot stated at [55]:

“[55]… The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law…”

204. While Wingfoot refers to a medical panel under the Accident Compensation Act 1985 (Vic), the standard for written reasons set out at [55] above apply equally to the Senior Member and Appeal Panel under the CAT Act in this case.

205. In order to meet the legal standard outlined in Wingfoot at [55], the reasons of the Senior Member and the Appeal Panel were required to explain their actual path of reasoning in sufficient detail to enable a court to see whether their opinions involved an error of law. The plaintiff has failed to demonstrate that the reasons of the Senior Member and the Appeal Panel failed to meet this standard. As such, it is my view that in relation to the Appeal Panel decision, ground 3(j) does not raise a question of law which is more than merely arguable. Leave to appeal on this ground is refused. In relation to the Local Government Decision, the Tribunal’s reasons reveal no error of law. This ground of appeal fails.

Ground 3(k)

206. This ground of appeal asserts that each costs decision misconstrued or misapplied s 60(3) of the CAT Act with respect to the issue of exceptional circumstances.

207. As outlined earlier, the plaintiff requires leave to appeal on a question of law in relation to the Local GovernmentCosts Decision, Smith Costs Decision, and Appeal Panel Decision.

The plaintiff’s submissions

208. At the hearing of these proceedings, the plaintiff submitted that the Electoral Commission conducted an investigation into the issues raised by the plaintiff in the Smith proceedings, at his request. He alleges that after withholding its investigation report, the Electoral Commission recommended that he proceed to NCAT with his concerns (T 30.4). The plaintiff submitted that bringing his case to the Tribunal was a reasonable course to take, and not a basis for the Tribunal to make a costs order against him pursuant to s 60(2) of the CAT Act.

The defendant’s submissions

209. The defendants submitted that ground 3(k) must fail as it identifies the wrong test by referring to “exceptional” rather than “special” circumstances.

210. The defendants submitted that with respect to the costs decisions, there is no question of law properly raised in the proposed summons, or any question of law is doomed to fail such that the appeal from those decisions is incompetent, obviously untenable and should be dismissed. Further, with respect to the Appeal Panel Decision, even if a question of law is found to have been raised, there are no factors warranting the granting of leave necessary pursuant to s 83 of the CAT Act. For similar reasons, there are no factors warranting the granting of leave necessary to appeal from the Local Government costs decision and the SmithCosts Decision pursuant to cl 29(6)(c), Sch 5 of the CAT Act.

Consideration

211. Section 60 of the CAT Act has been set out earlier in this judgment. The plaintiff in his proposed summons does not identify how s 60(3) is alleged to have been misconstrued or misapplied. As such, no question of law has been properly raised.

212. The application of s 60(3) of the CAT Act involves an exercise of discretion. The principles according to which this Court is to decide whether a discretionary decision to award costs constitutes an error of law are stated definitively in a short passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at pp 504-505. Those principles are as follows:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

213. Counsel for the plaintiff submitted that this appeal raises an issue of principle because in the Local GovernmentCosts Decision, the Senior Member stated that the plaintiff had “reasonably brought the matter” (T 36.40), and that although the Tribunal dismissed the proceedings for want of jurisdiction, the matter was one which “otherwise [the Senior Member] agreed to be in the public interest” (T 37.1-2). He therefore erred in exercising his discretion to award costs.

214. However, in his written reasons, the Senior Member made no such concession. At [42], he stated that it was “understandable” that a self-represented litigant would commence proceedings in the Tribunal without jurisdiction. However, far from stating that the plaintiff’s applications were reasonably brought, he stated at [46], “I agree with the respondents that the applications lacked merit.” He found that continuing with the proceedings after having been made aware that the Tribunal lacked jurisdiction was an abuse of process. The plaintiff has not challenged that decision, nor the determination made in the SmithCosts Decision that those proceedings were obviously untenable and vexatious.

215. In the case of each costs decision, the Tribunal considered whether special circumstances existed, and upon being satisfied in its discretion that they did, went on to exercise its discretion in making an order for costs. The plaintiff has failed to demonstrate that this discretion was exercised in error in any of the decisions specified. As such, it is my view that ground 3(k) does not raise a question of law which is more than merely arguable. Leave to appeal on this ground is refused.

Resolution

216. I have considered the grounds of appeal in the plaintiff’s amended summons. In my view, none of the questions of law outlined in the plaintiff’s amended summons in relation to the Local Government Costs Decision, Smith Costs Decision and Appeal Panel Decision are more than merely arguable. In these circumstances, the plaintiff has failed to demonstrate that his appeals in relation to these three decisions concern any issue of principle or question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable, that the primary decisions were in error.

217. Having taken these matters into account, in the exercise of my discretion, I refuse to grant leave to appeal in relation to Local GovernmentCosts Decision, SmithCosts Decision and Appeal Panel Decision.

218. Further, it is my view for the reasons given earlier that the plaintiff’s grounds of appeal as they relate to the Local Government Decision and the Smith Decision reveal no errors of law. The plaintiff’s appeals in relation to those decisions are dismissed.

219. At the hearing of these proceedings, the parties agreed that if leave to appeal was refused, the plaintiff’s application for a stay would fall away (T 20.46-50). It is also not necessary that I consider the defendants’ application for summary judgment.

Result

220. The result is that the plaintiff’s application for an extension of time to file an appeal is refused. The plaintiff’s application for leave to file the amended summons is refused. The plaintiff’s application for leave to appeal in relation to the Local Government Costs Decision, Smith Costs Decision and Appeal Panel Decision is refused. The plaintiff’s appeals in relation to the Local Government Decision and Smith Decision are dismissed.

Costs

221. Costs are reserved.

THE COURT ORDERS THAT:

1. The plaintiff’s application for an extension of time to file an appeal is refused.

2. The plaintiff’s application for leave to file an amended summons is refused.

3. The plaintiff’s application for leave to appeal in relation to, firstly, the decision of the Senior Member of NCAT as to costs dated 4 May 2019 in proceedings 2017/343156 and 2017/242149; secondly, the decision of the Senior Member of NCAT as to costs dated 2 July 2018 in proceedings 2017/343134; and thirdly, the decision of the Appeal Panel of NCAT dated 24 July 2018 in proceedings 2018/22632; are refused.

4. The plaintiff’s appeals in relation to, firstly, the decision of the Senior Member of NCAT dated 21 February 2018 in proceedings 2017/343156 and 2017/242149; and secondly, the decision of the Senior Member of NCAT dated 5 June 2018 in proceedings 2017/343134; are dismissed.

5. In proceedings 2017/343156 and 2017/242149, the decisions of the Senior Member of NCAT dated 21 February 2018, and as to costs dated 4 May 2019, are affirmed.

6. In proceedings 2018/22632, the decision of the Appeal Panel of NCAT dated 24 July 2018 is affirmed.

7. In proceedings 2017/343134, the decisions of the Senior Member of NCAT dated 5 June 2018, and as to costs dated 2 July 2018, are affirmed.

8. Costs are reserved.

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Amendments

17 April 2020 - 17 April 2020 - typographical error removed

Decision last updated: 17 April 2020