Kelly v Szatow [2018] NSWCATOD 64

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kelly v Szatow [2018] NSWCATOD 64 Hearing dates: On the papers Date of orders: 04 May 2018 Decision date: 04 May 2018 Jurisdiction: Occupational Division Before: S Montgomery, Senior Member Decision: 1. The Applicant is to pay each of the Respondents' costs of and incidental to the proceedings from 16 January 2018 as agreed or assessed. Catchwords: COSTS – Whether special circumstances warrant an award of costs – Where applicant's application was frivolous or vexatious or otherwise misconceived or lacking in substance – Where applicant was self-represented and had genuine concerns Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Local Government Act 1993 (NSW) Cases Cited: Attorney General v Wentworth (1988) 14 NSWLR 481 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 GHI v ABC trading as DEF [2018] NSWCATAD 8 Mendonca v Tonna [2017] NSWCATAP 176 Office of Local Government v Councillor Martin Ticehurst of Lithgow City Council [2016] NSWCATOD 122 Category: Costs Parties: Peter Kelly (Applicant) Cheryl Szatow; Martin Smith; Donna Greenfield; Jeff Pettett (Respondents) Representation: P Kelly (Applicant in person)

Solicitors: G Skehan (Respondents) File Number(s): 2017/00343156; 2017/00343149

REASONS FOR DECISION

Introduction 1. Mr Peter Kelly brought applications against Ms Cheryl Szatow, Mr Martin Smith, Ms Donna Greenfield and Mr Jeff Pettett ("the Respondents") seeking orders under the Local Government Act 1993 (NSW) ("the LG Act") for the Respondents to be disqualified from holding civic office in Ku-ring-gai and banned from holding civic office. 2. In support of his applications he asserted that: 1. Cr Smith's declaration (prior to the election) may be false - depending on the relationship he has with his father's property development business. He has since engaged in a smear campaign aimed at denigrating the Applicant to his fellow councillors and the general public. 2. Cr Szatow's declaration (prior to the election) may be false as she is married to a property developer, plus she has also engaged in a smear campaign aimed at denigrating the Applicant to fellow councillors and the general public. 3. Cr Greenfield and Cr Pettett have supported Cr Szatow in the smear campaign. 1. The Respondents separately sought the dismissal of the applications on the basis that: 1. Mr Kelly did not have standing to bring the applications; 2. the Tribunal does not have jurisdiction to hear Mr Kelly's applications; 3. Mr Kelly's applications had no tenable basis at law; and 4. Mr Kelly's applications were frivolous, vexatious and without substance. 1. I dealt with the dismissal applications on 21 February 2018. I determined that the Tribunal did not have jurisdiction and I dismissed each of the applications. In a related matter I was satisfied that the Tribunal did have jurisdiction and set a timetable for the progress of that matter. 2. The Respondents to the present matters have each sought an order for costs in relation to the proceedings. It was agreed that the applications for costs would be determined on the basis of written material without the need for a hearing. The parties have filed written submissions in relation to the issue. 3. While there are two separate applications, it is convenient to deal with them together because of the overlap of relevant circumstances.