Series Expose: How to orchestrate a Section 110 Application under the GIPA Act 2009
Episode 1: 04.10.2024
Multiple Agencies Evidenced Colluding and Breaching the Public’s Privacy as Recommended and Exemplified by Dept of Communities & Justice Director Open Government Information & Privacy Unit; Purpose is to Secure a Restraining Order to stop a group of individuals from exercising legislated rights to access NSW government information
Episode 1: 04.10.2024
Multiple Agencies Evidenced Colluding and Breaching the Public’s Privacy as Recommended and Exemplified by Dept of Communities & Justice Director Open Government Information & Privacy Unit; Purpose is to Secure a Restraining Order to stop a group of individuals from exercising legislated rights to access NSW government information
A brand-new precedent-setting Joint Section 110 Application was lodged today with the NSW Civil & Administrative Tribunal.
The Application was made under the Government Information (Public Access) Act 2009, GIPA.
The Applicants are Secretary, Dept of Communities and Justice (DCJ), Port Stephens Council (PSC) and Goulburn Mulwaree Shire Council (GMC).
The Respondents are the Administrator of this Site Telina Webb, her husband Paul McEwan, and McEwan’s company DraftCom Pty Ltd.
This is new.
It is a first.
It will set a precedent no matter which way it goes.
Never before has any NSW government agency lodged such an application against (3) three respondents at the same time.
Agencies have colluded prior to this application however, where all of those were successful.
No person to date has questioned that collusion.
Even earlier Respondents, so overwhelmed facing such proceedings and all being self-represented, all focused on the Application and not the collective Applicants.
No person questioned the necessary breaching of privacy and sharing of GIPA files between all Applicants in order to be able to make the Application and initiate the case.
Today however, this first-time Application sought restraint orders against each of the Respondents, in perpetuity and across the whole of the state; that is every NSW government agency, forever.
These Applicants are angry.
They’re angry Webb is calling out corruption of the GIPA Act 2009.
They’re angry staff have been documented and identified acting corruptly, abusing trusted positions, and using public resources to do so.
They’re angry Webb has published the evidence of that corruption.
That evidence is birthed by agencies in response to GIPA Applications for NSW government information.
They all agree; Webb needs to be stopped. Her publications on the website www.nswfreedomofinformation.net need to be dealt with; she must be taught a lesson.
PSC and GMC threatened defamation proceedings earlier in 2024; not openly of course.
They inferred Webb had acted to defame them. Both agencies demanded various Site Pages from her website be removed. Apparently identified staff were a little bit upset to see their names attached to gross professional misconduct, shared in a public domain. Perhaps it was okay to do an unsavoury deed against the public, but not cool for the public to talk about it or share what had happened. The letters of demand were not clear they were based on any specific law. Webb had to ask “does this concern defamation?”
The answer came back, yes.
GMC had also demanded legal costs. Brazen!
Whilst waiting for the situation to resolve and as a matter of intermittent courtesy, Webb suspended the nominated webpages.
In response Webb then exercised her rights under the Defamation Act 2005 Section 12A, seeking further and better particulars, asking for clarification; “and what precisely do you have a problem with? It’s all true.”
GMC never replied. How rude. How arrogant.
PSC advised it would not be responding. How predictable. How cowardly.
So at first instance it appeared nothing more than a storm in a teacup. Baseless threats designed to bully and intimidate a defenceless member of the public exercising the right to express and share a personal opinion, founded on agency documents and actions.
But these two agencies, having fallen flat on their defamation faces, decided instead to join forces with the largest NSW government department, Secretary Dept of Communities & Justice NSW (DCJ).
PSC had already seen (2) failures to secure a Section 110 Application against Webb, who was at all times unrepresented.
The costs of those failures soaked up approximately $210,000.00. The first had been won by Webb, the second had been won by PSC but was overturned on appeal, the third was won by Webb on remittal.
Now this was PSC’s big chance to hook up with its bigger brother and bring out the biggest stick possible against an unarmed opponent; if DCJ couldn’t do it then no agency could. PSC’s persistent governance manager calling in the favour in true opportunistic style.
PSC had repeatedly failed and in spectacular fashion. Now it would join forces to get the result it dreamed of.
GMC was happy to go along for the ride. A smaller agency, it had been successful in securing a Section 110 Order in the past; and like this occasion it had also colluded with other agencies. Gutless, weak, insignificant, unable to stand on its own (2) two feet; success could be more easily obtained in a multifaceted show of strength.
And here it was again, its governance manager stepping forward but this time also latching onto its Justice big brother.
They were all like-minded.
A Section 110 Order is propagated to be fair, reasonable, doesn’t impede a recipient’s ability to ask for government information. Nothing could be further from the truth.
NSW government agencies see such orders as a management strategy; a mechanism for controlling labelled problematic Access Applicants; designed to cause maximum frustration and cost in complete contradiction to the object and purpose of the GIPA Act 2009 itself.
And now Webb and McEwan were facing this Section 110 Application.
It neglected to make the necessary disclosure: what files were being relied upon to support and validate this application for a militant order?
Webb and McEwan were puzzled.
McEwan rightfully questioned “what does this have to do with me or my company?”
The Application stated there were (8) eight Unmeritorious Access Applications.
But by whom? Who were the Access Applicants?
Neither McEwan nor DraftCom Pty Ltd had lodged any Unmeritorious Access Applications.
Indeed neither had they lodged any access applications with any of the Applicants in the past (3) three years to remotely qualify as a Respondent in such proceedings.
The Grounds of the Application stated:“The respondents have made a combined total of eight access applications to the applicants which 'lack merit' as defined by s. 110(2) of the GIPA Act. The Tribunal, in exercising its discretion in s. 110 (1) of the GIPA Act to make a restraint order, should attribute significantly greater weight to protecting the applicants’ ability to discharge the objects in s.3(1) of the GIPA Act by providing access to government information promptly and at the lowest reasonable cost than to the minimal impact of an order under s.110(1) on the respondents’ rights to access.”
Having dealt with PSC since 2011 and experienced its corrupt conduct for well over a decade, the Respondents are now never surprised to see more of the same; a leopard is incapable of changing its spots. And PSC’s governance manager proudly struts his!
However, to see the DCJ in-house solicitor Justin Cahill making a false statement at first instance where he states “the respondents have made a combined total of eight access applications to the applicants which ‘lack merit’……” was a shocking realisation of the willingness of an agency under the umbrella of the NSW Attorney-General to act exactly the same.
After all, these individuals sitting in departments administering the GIPA Act 2009, and PIPP Act 1998, are all now confirmed to be members of an elite covert group working together to undermine the public’s legislated rights. But more of that later.
Additionally, s.110(1) sets the qualifiers for such an Application:110 Orders to restrain making of unmeritorious access applications(1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a restraint order) if NCAT is satisfied that—(a) at least 3 access applications (to one or more agencies) in the previous 2 years have been made that lack merit, and(b) the applications were made by the same person or by any other person acting in concert with the person.
So the qualifier is linked by the word “and”. There must first be at least 3 unmeritorious applications to an agency in the previous 2 years; that is years previous to the date of the Application AND those unmeritorious applications are confirmed made by the same person, or by any other person acting in concert with the access applicant.
Webb was aware of unmeritorious access applications on her part.
But there were none from McEwan or DraftCom Pty Ltd, that was certain.
But already one thing was very clear; this was a collaborative act of retaliation.
The Section 110 Application was filed (9) nine days after the publication of a media release titled “Toxic State Government Behaviours Exposed! - Public’s Ongoing Investigation into NSW Right to Information and Privacy Officer Behaviours and Activities Reveals Cartel Posse Mentality, Denigrating Legislated Rights and Undermining Beneficial Legislation, 23.09.2024, ” https://nswfreedomofinformation.net/media-release-23-september-2024/.
Without any information of substance on the Section 110 Application, the Respondents would just have to wait and see.
By covering letter with the Application Point 3 Orders Sought states:
The applicants listed above jointly seek:(1) A restraint order under ss. 110(1) and 110(3) of the Government Information(Public Access) Act 2009 ('GIPA Act' that the respondents, Telina Webb,DraftCom Pty Ltd (ACN 076 511 941) and Paul McEwan indefinitely not bepermitted to make an access application to any NSW public sector agencyunder the GIPA Act, whether solely on their own behalf or acting jointly, or inconcert with any other person or entity without first obtaining the Tribunal'sapproval.(2) An order under s.64(1)(c) and (d) of the Civil and Administrative Tribunal Act2013 that the disclosure to the respondents and the publication of theconfidential paragraphs of the affidavits of Tony Wickham, Jonathan Franklin,and Maria Timothy is prohibited.
The revelation these collective witnesses intend to cry on the shoulder of the Tribunal in a confidential session to impress just how much they depend on securing these orders is also not surprising; they must hide in the shadows, they must plead in private, they have to try to gain every advantage possible against one person without legal representation.
Oh, is this what is meant by Model Litigant?!
Perhaps the forthcoming Case Conference would provide some enlightenment.
A copy of the Application is available here.
A link to the GIPA Act 2009 Section 110 is available here.
DCJ published recommendation to collude against the public is available here (Pages 1 & 11).
Contact:
Jodie Cobbin, Jodie.cobbin@dcj.nsw.gov.au
Justin Cahill, justin.cahill@dcj.nsw.gov.au
Michael McIntosh, Michael.mcintosh@dcj.nsw.gov.au
Jonathan Franklin, Jonathan.franklin@dcj.nsw.gov.au
Tony Wickham, tony.wickham@portstephens.nsw.gov.au
Lisa Marshall, lisa.marshall@portstephens.nsw.gov.au
Maria Timothy, maria.timothy@goulburn.nsw.gov.au
The Application was made under the Government Information (Public Access) Act 2009, GIPA.
The Applicants are Secretary, Dept of Communities and Justice (DCJ), Port Stephens Council (PSC) and Goulburn Mulwaree Shire Council (GMC).
The Respondents are the Administrator of this Site Telina Webb, her husband Paul McEwan, and McEwan’s company DraftCom Pty Ltd.
This is new.
It is a first.
It will set a precedent no matter which way it goes.
Never before has any NSW government agency lodged such an application against (3) three respondents at the same time.
Agencies have colluded prior to this application however, where all of those were successful.
No person to date has questioned that collusion.
Even earlier Respondents, so overwhelmed facing such proceedings and all being self-represented, all focused on the Application and not the collective Applicants.
No person questioned the necessary breaching of privacy and sharing of GIPA files between all Applicants in order to be able to make the Application and initiate the case.
Today however, this first-time Application sought restraint orders against each of the Respondents, in perpetuity and across the whole of the state; that is every NSW government agency, forever.
These Applicants are angry.
They’re angry Webb is calling out corruption of the GIPA Act 2009.
They’re angry staff have been documented and identified acting corruptly, abusing trusted positions, and using public resources to do so.
They’re angry Webb has published the evidence of that corruption.
That evidence is birthed by agencies in response to GIPA Applications for NSW government information.
They all agree; Webb needs to be stopped. Her publications on the website www.nswfreedomofinformation.net need to be dealt with; she must be taught a lesson.
PSC and GMC threatened defamation proceedings earlier in 2024; not openly of course.
They inferred Webb had acted to defame them. Both agencies demanded various Site Pages from her website be removed. Apparently identified staff were a little bit upset to see their names attached to gross professional misconduct, shared in a public domain. Perhaps it was okay to do an unsavoury deed against the public, but not cool for the public to talk about it or share what had happened. The letters of demand were not clear they were based on any specific law. Webb had to ask “does this concern defamation?”
The answer came back, yes.
GMC had also demanded legal costs. Brazen!
Whilst waiting for the situation to resolve and as a matter of intermittent courtesy, Webb suspended the nominated webpages.
In response Webb then exercised her rights under the Defamation Act 2005 Section 12A, seeking further and better particulars, asking for clarification; “and what precisely do you have a problem with? It’s all true.”
GMC never replied. How rude. How arrogant.
PSC advised it would not be responding. How predictable. How cowardly.
So at first instance it appeared nothing more than a storm in a teacup. Baseless threats designed to bully and intimidate a defenceless member of the public exercising the right to express and share a personal opinion, founded on agency documents and actions.
But these two agencies, having fallen flat on their defamation faces, decided instead to join forces with the largest NSW government department, Secretary Dept of Communities & Justice NSW (DCJ).
PSC had already seen (2) failures to secure a Section 110 Application against Webb, who was at all times unrepresented.
The costs of those failures soaked up approximately $210,000.00. The first had been won by Webb, the second had been won by PSC but was overturned on appeal, the third was won by Webb on remittal.
Now this was PSC’s big chance to hook up with its bigger brother and bring out the biggest stick possible against an unarmed opponent; if DCJ couldn’t do it then no agency could. PSC’s persistent governance manager calling in the favour in true opportunistic style.
PSC had repeatedly failed and in spectacular fashion. Now it would join forces to get the result it dreamed of.
GMC was happy to go along for the ride. A smaller agency, it had been successful in securing a Section 110 Order in the past; and like this occasion it had also colluded with other agencies. Gutless, weak, insignificant, unable to stand on its own (2) two feet; success could be more easily obtained in a multifaceted show of strength.
And here it was again, its governance manager stepping forward but this time also latching onto its Justice big brother.
They were all like-minded.
A Section 110 Order is propagated to be fair, reasonable, doesn’t impede a recipient’s ability to ask for government information. Nothing could be further from the truth.
NSW government agencies see such orders as a management strategy; a mechanism for controlling labelled problematic Access Applicants; designed to cause maximum frustration and cost in complete contradiction to the object and purpose of the GIPA Act 2009 itself.
And now Webb and McEwan were facing this Section 110 Application.
It neglected to make the necessary disclosure: what files were being relied upon to support and validate this application for a militant order?
Webb and McEwan were puzzled.
McEwan rightfully questioned “what does this have to do with me or my company?”
The Application stated there were (8) eight Unmeritorious Access Applications.
But by whom? Who were the Access Applicants?
Neither McEwan nor DraftCom Pty Ltd had lodged any Unmeritorious Access Applications.
Indeed neither had they lodged any access applications with any of the Applicants in the past (3) three years to remotely qualify as a Respondent in such proceedings.
The Grounds of the Application stated:“The respondents have made a combined total of eight access applications to the applicants which 'lack merit' as defined by s. 110(2) of the GIPA Act. The Tribunal, in exercising its discretion in s. 110 (1) of the GIPA Act to make a restraint order, should attribute significantly greater weight to protecting the applicants’ ability to discharge the objects in s.3(1) of the GIPA Act by providing access to government information promptly and at the lowest reasonable cost than to the minimal impact of an order under s.110(1) on the respondents’ rights to access.”
Having dealt with PSC since 2011 and experienced its corrupt conduct for well over a decade, the Respondents are now never surprised to see more of the same; a leopard is incapable of changing its spots. And PSC’s governance manager proudly struts his!
However, to see the DCJ in-house solicitor Justin Cahill making a false statement at first instance where he states “the respondents have made a combined total of eight access applications to the applicants which ‘lack merit’……” was a shocking realisation of the willingness of an agency under the umbrella of the NSW Attorney-General to act exactly the same.
After all, these individuals sitting in departments administering the GIPA Act 2009, and PIPP Act 1998, are all now confirmed to be members of an elite covert group working together to undermine the public’s legislated rights. But more of that later.
Additionally, s.110(1) sets the qualifiers for such an Application:110 Orders to restrain making of unmeritorious access applications(1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a restraint order) if NCAT is satisfied that—(a) at least 3 access applications (to one or more agencies) in the previous 2 years have been made that lack merit, and(b) the applications were made by the same person or by any other person acting in concert with the person.
So the qualifier is linked by the word “and”. There must first be at least 3 unmeritorious applications to an agency in the previous 2 years; that is years previous to the date of the Application AND those unmeritorious applications are confirmed made by the same person, or by any other person acting in concert with the access applicant.
Webb was aware of unmeritorious access applications on her part.
But there were none from McEwan or DraftCom Pty Ltd, that was certain.
But already one thing was very clear; this was a collaborative act of retaliation.
The Section 110 Application was filed (9) nine days after the publication of a media release titled “Toxic State Government Behaviours Exposed! - Public’s Ongoing Investigation into NSW Right to Information and Privacy Officer Behaviours and Activities Reveals Cartel Posse Mentality, Denigrating Legislated Rights and Undermining Beneficial Legislation, 23.09.2024, ” https://nswfreedomofinformation.net/media-release-23-september-2024/.
Without any information of substance on the Section 110 Application, the Respondents would just have to wait and see.
By covering letter with the Application Point 3 Orders Sought states:
The applicants listed above jointly seek:(1) A restraint order under ss. 110(1) and 110(3) of the Government Information(Public Access) Act 2009 ('GIPA Act' that the respondents, Telina Webb,DraftCom Pty Ltd (ACN 076 511 941) and Paul McEwan indefinitely not bepermitted to make an access application to any NSW public sector agencyunder the GIPA Act, whether solely on their own behalf or acting jointly, or inconcert with any other person or entity without first obtaining the Tribunal'sapproval.(2) An order under s.64(1)(c) and (d) of the Civil and Administrative Tribunal Act2013 that the disclosure to the respondents and the publication of theconfidential paragraphs of the affidavits of Tony Wickham, Jonathan Franklin,and Maria Timothy is prohibited.
The revelation these collective witnesses intend to cry on the shoulder of the Tribunal in a confidential session to impress just how much they depend on securing these orders is also not surprising; they must hide in the shadows, they must plead in private, they have to try to gain every advantage possible against one person without legal representation.
Oh, is this what is meant by Model Litigant?!
Perhaps the forthcoming Case Conference would provide some enlightenment.
A copy of the Application is available here.
A link to the GIPA Act 2009 Section 110 is available here.
DCJ published recommendation to collude against the public is available here (Pages 1 & 11).
Contact:
Jodie Cobbin, Jodie.cobbin@dcj.nsw.gov.au
Justin Cahill, justin.cahill@dcj.nsw.gov.au
Michael McIntosh, Michael.mcintosh@dcj.nsw.gov.au
Jonathan Franklin, Jonathan.franklin@dcj.nsw.gov.au
Tony Wickham, tony.wickham@portstephens.nsw.gov.au
Lisa Marshall, lisa.marshall@portstephens.nsw.gov.au
Maria Timothy, maria.timothy@goulburn.nsw.gov.au
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