Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Woodhouse v Thalis [2018] NSWCA 97 Hearing dates: 4 May 2018 Date of orders: 04 May 2018 Decision date: 07 May 2018 Before: McColl JA at [1]; Meagher JA at [1] Decision: 1. Refuse Mr Woodhouse's application for an adjournment of today's hearing of the summons seeking leave to appeal from Justice Bellew's decision of 15 December 2017. 2. Dismiss the application for leave to appeal from Justice Bellew's decision. 3. Order the applicant to pay the respondent's costs of the application for leave to appeal and today. 4. Reasons reserved for publication on Monday 7 May 2018. Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – applicant a litigant in person – where applicant did not appear at hearing – application for adjournment sought on grounds of ill health – where applicant emailed Registrar stating that he would not appear in court due to illness – whether medical evidence demonstrates applicant unable to appear for medical reasons – interests of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Local Government Act 1993 (NSW) Oaths Act 1900 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Woodhouse v Thalis [2017] NSWCATAD 260 Category: Principal judgment Parties: Andrew Lance Woodhouse (Applicant) Philip Thalis (Respondent) Representation: Counsel: In Person (Applicant) S Blanks (Respondent) Solicitors: In Person (Applicant) SBA Lawyers (Respondent) File Number(s): 2018/12401 Publication restriction: No Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2017] NSWSC 1725 Date of Decision: 15 December 2017 Before: Bellew J File Number(s): 2017/213057 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. The Court: The applicant, Andrew Lance Woodhouse, sought leave to appeal pursuant to s 101 of the Supreme Court Act 1970 (NSW) against Bellew J's interlocutory decision in Woodhouse v Thalis. [1] Philip Thalis, the respondent, is a councillor on the Council of the City of Sydney (the Council). He was elected to that position at Local Government elections held on 10 September 2016. 2. By an application filed in the NSW Civil and Administrative Tribunal on 9 December 2016, Mr Woodhouse sought orders pursuant to s 329 of the Local Government Act 1993 (NSW), disqualifying Mr Thalis from being a councillor, rescinding all decisions involving Mr Thalis and the Council and prohibiting Mr Thalis from standing for any council (disqualification application). 3. On 17 May 2017, in the circumstances to which we refer below, the NCAT "confirmed" that those proceedings had been dismissed pursuant to a self-executing order made on 27 April 2017, and also made a (further) order for the dismissal of the proceedings pursuant to Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 55(1)(c). [2] 4. Bellew J refused an extension of the time sought by Mr Woodhouse for bringing proceedings seeking leave to appeal from the Tribunal's decision dismissing his application. Under NCAT Act, s 83, there was a right of appeal by leave to the Supreme Court on questions of law. 5. Mr Woodhouse's application for leave to appeal from Bellew J's orders was listed for hearing before this Court on 4 May 2018. Mr Woodhouse did not appear. After hearing from Mr Thalis' solicitor, and considering material communicated to the Court by Mr Woodhouse, the following orders were made: 1. Refuse Mr Woodhouse's application for an adjournment of today's hearing of the summons seeking leave to appeal from Justice Bellew's decision of 15 December 2017. 2. Dismiss the application for leave to appeal from Justice Bellew's decision. 3. Order the applicant to pay the respondent's costs of the application for leave to appeal and today. 4. Reasons reserved for publication on Monday 7 May 2018. 1. These are the Court's reasons for making those orders. It is convenient first to deal with the reasons for dismissing Mr Woodhouse's substantive application. Background 1. The Tribunal's decision ultimately was concerned with matters of practice and procedure. [3] The Tribunal's reasons record that at the second directions hearing on 2 March 2017, the Principal Member, Mr M Craig QC: "[11] … directed attention to the significance of the proceedings, stating that their importance transcended the interests of the parties themselves because of the potential impact that success in the proceedings would have upon the functioning of the Council as a collegiate body. In this context, attention was drawn to the order sought by Mr Woodhouse that all decisions of the Council in which Mr Thalis had participated 'be rescinded', an order that Mr Woodhouse stated he would press. [12] As a consequence, the Presiding Member stated that the preparation of the matter for hearing would need to be undertaken efficiently and an early date for hearing fixed …" 1. In the following two months, Mr Woodhouse twice sought adjournments of directions hearings, on each occasion within 24 (working) hours of the hearing date, in each case propounding ill health as the reason for the application. [4] On the second of those occasions, on 6 April 2017, "the hearing fixed for the following day was vacated and the hearing of any outstanding interlocutory application fixed for Thursday 27 April 2017 at 10am. The date for the final hearing of the proceedings, namely Wednesday 17 May 2017, was expressly confirmed." [5] Mr Woodhouse did not attend the hearing on 27 April 2017, but, rather, as had occurred on the two earlier occasions, sent an email to the Registry, stating that he would not appear due to illness. The directions hearing proceeded in his absence. The Tribunal made further directions, including self-executing order 7, providing that should Mr Woodhouse fail to comply with order 6 requiring him to file and serve all documents and other evidence he relied on by 4pm on 3 May 2017, the proceedings would be dismissed. [6] 2. Prior to 17 May 2017, the Registry of the Tribunal received a number of email communications from Mr Woodhouse attaching documents of a pro forma medical nature purporting to certify that he "[would] be unfit to work for a period of which included the hearing date." [7] At the direction of the Tribunal, the Registrar sent an email to Mr Woodhouse advising, relevantly, that the matter remained listed for hearing on 17 May. 3. Mr Woodhouse did not appear at the 17 May 2017 hearing. It is plain from the terms in which Mr Woodhouse's email communications to the Registry were expressed, that he sought an adjournment of that hearing. Mr Thalis was represented by his solicitor who opposed the grant of any adjournment. The Tribunal refused to grant the adjournment. The Tribunal's reasons for that refusal emphasised the importance of "[L]ocal government … as the third tier of government both in this State and nationally" and "the importance that any challenge to the validity of the office held by an elected councillor be determined both fairly and promptly." [8] It added: "[41] So much more is an expeditious determination required where, as here, the invalidity alleged to attend the election of a councillor is claimed to sound in the invalidity of those decisions made by the council in which the councillor participated. The longer the proceedings take to determination, the greater are the number of decisions that, on the case sought to be made, may be impugned as being invalid." 1. The Tribunal concluded that Mr Woodhouse, as the moving party, had not conducted the proceedings in a manner that gave effect to the principle in s 36(1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings. [9] Primary judgment 1. Mr Woodhouse's application to the Supreme Court for leave to appeal was required to be filed within 28 days of the "material date". [10] The primary judge identified that date as 27 April 2017, the date on which the self-executing order was made. The summons seeking leave to appeal, and an extension of the time for doing so, was filed on 13 July 2017 and heard on 7 September 2017. At the commencement of that hearing, Mr Woodhouse sought an adjournment on the basis that he had not been given a sufficient opportunity "to present (his) case in full". [11] That application was refused. 2. Dealing with the application for an extension of time, the primary judge concluded: "[34] 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. [35] Moreover, in my view, the plaintiff's proposed appeal has no prospects of success. Having regard to the provisions of s 83 of the [NCAT] 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. [36] 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." 1. His Honour did not correctly identify the material date or dates of the Tribunal's orders. They were either 3 May 2017, being the date Mr Woodhouse failed to comply with order 6 of the 27 April 2017 directions, or 17 May 2017, in respect of the order under NCAT Act, s 55(1)(c). 2. However, this error would not justify a grant of leave to appeal from his Honour's decision to refuse an extension of time. If leave were granted, any re-exercise by this Court of the discretion to extend time would result in the refusal of that application for substantially the same reasons as given by his Honour and extracted at [13] above. For that reason, there was no utility in this Court granting leave to appeal. Adjournment application 1. On 19 March 2018, the Registrar of the Court of Appeal fixed 4 May 2018 as the date for hearing Mr Woodhouse's application for leave to appeal. At that directions hearing orders were made for the delivery of summaries of argument, by the applicant by 3 April 2018 and the respondent by 27 April 2018. Although Mr Woodhouse's summary of argument (described as a Preliminary Case Summary) was filed on 3 April 2018 it was not obtained by the respondent Mr Thalis until 11 April 2018. Mr Thalis' summary of argument (a three-page document) was then served on 9:11pm on Sunday 29 April 2018. 2. On Tuesday, 1 May 2018, Mr Woodhouse sent an email to the Court of Appeal Registrar foreshadowing an application to vacate the hearing date on the basis that Mr Thalis' legal representative had filed and served his documents later than 27 April 2018 as directed. Mr Woodhouse's email asserted that this "has halved the time available for me to consider the ramifications of the cases and assertions he raises and is unfair. Consequently, as a self-represented party, I am at a distinct disadvantage." 3. On 3 May 2018, Mr Woodhouse forwarded to the Court of Appeal Registrar and the respondent by email an application for an adjournment of the hearing. He advised that he was "very ill and cannot travel to or attend tomorrow's hearing". He stated he "object[ed] to the case proceeding without me." 4. He also attached to the email the documents he relied on in support of his "request for an adjournment". Those documents included a note from his treating doctor dated 3 May 2018 and an earlier letter dated 30 April 2018 from a clinical psychologist. The latter purports to be a declaration under oath, although it does not comply with Oaths Act 1900 (NSW), s 3. It also contains a qualification as to the use to which it might be put, limiting that use to the purpose of "provision of information to the Registrar" of this Court in relation to this proceeding. 5. On 3 May 2018, after receiving Mr Woodhouse's email of the same day, the Registrar sent him an email advising: "If you wish to make an application to adjourn the 4 May 2018 hearing, it is necessary either that you do it in person or arrange for a legal practitioner to make the application on your behalf. Absent any appearance on 4 May 2018 either by yourself, or on your behalf, you cannot assume the Court will adjourn the matter." 1. Mr Woodhouse responded by email on 3 May, referring to the psychologist's letter and asserting that it was "not within my practical, nor is it within my financial means to brief a lawyer for tomorrow." He asked that the Court take into account his circumstances and grant his request for an adjournment as "consistent with the court's UCPR" for the just resolution of matters. 2. Mr Blanks, who appeared for Mr Thalis, opposed the adjournment application, including on the basis that the application for leave had no real prospects of success and that the Court could not be satisfied that an adjournment would secure Mr Woodhouse's attendance at a future hearing. 3. The Court was not satisfied that the medical and other material provided by Mr Woodhouse to the Registrar justified an adjournment for reason of any medical condition from which he may suffer. The note from his treating doctor indicates that it would be "ideal" if the hearing of the case were delayed so as to avoid "stressors". The psychologist's letter suggests without further elaboration that any attendance by Mr Woodhouse in court would be "ineffective". Neither, in the Court's opinion, showed that Mr Woodhouse's condition in any practical sense would prevent him from attending before the Court to support his current application or that his doing so would exacerbate that condition or otherwise put his health at risk. 4. Three further matters were relevant to the Court's conclusion that the adjournment application should be refused. First, the Court had the benefit of Mr Woodhouse's detailed written submissions addressing his substantive application, so that proceeding in his absence did not mean that the arguments he sought to make were not able to be considered. Secondly, the Court was not satisfied that, with the benefit of an adjournment for a period of six weeks to three months, as sought, Mr Woodhouse would be prepared to argue the matter at that time. This is particularly so, taking account of his earlier conduct in making applications to adjourn the underlying proceedings and those before the primary judge. Thirdly, the interests of justice require that this matter be disposed of promptly, because the underlying proceedings seek to challenge Mr Thalis' position as a member of the Council. 5. On 4 May, the Court advised Mr Woodhouse that orders had been made that day and that the matter was listed for judgment on 7 May 2018. On the morning of 7 May 2018 an email was received from Mr Woodhouse requesting the matter not proceed. As Mr Woodhouse's application has been dismissed, there are no longer proceedings before the Court in which his submissions can be entertained. Orders 1. There being no appearance by the applicant to advance the application for leave to appeal, the respondent was entitled to an order for payment of his costs. ********** Endnotes 1. [2017] NSWSC 1725. 2. Woodhouse v Thalis [2017] NSWCATAD 260 (Tribunal decision). Although the Tribunal's reasons are dated 17 May 2017, it appears they were provided in written form to Mr Woodhouse on 22 August 2017. 3. The details appear in the Tribunal's decision (at [5] – [38]). 4. Ibid (at [19]). 5. Ibid (at [18]). 6. Ibid (at [24]). 7. Ibid (at [32] – [33]). 8. Ibid (at [40]). 9. Ibid (at [42] – [43]). 10. NCAT Act, s 84(2); Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 50.3 (the reference to a court in UCPR 50.3 includes a tribunal: s 3(1), Civil Procedure Act 2005 (NSW)). 11. Primary judgment (at [4]). Amendments 07 May 2018 - [1] last line "2013" amended to "2016" 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: 07 May 2018