WHO IS PAYING THE LEGAL BILLS FOR SECTION 110 APPLICATION ORDERS?
* How much are Section 110 Application Orders costing?
* Who is actually paying the bill?
* Where are the approvals for expenditure?
From the point of view of an advising legal team, a Section 110 Order can be the perfect mechanism for a NSW government agency to deal with a difficult GIPA Applicant.
This is not outlined anywhere in Section 110 of the GIPA Act 2009.
However, this 'qualified' legal advice to use a Section 110 Application for a purpose outside of the GIPA Act 2009 is likely to see an Agency Application for a Section 110 Order as an Improper Purpose. In the case of (Webb v Port Stephens Council, Webb v Port Stephens Council) Port Stephens Council v Webb, the intention of the Agency was undoubtedly to show the Tribunal that Webb was in fact primarily a difficult GIPA Applicant, where the qualifications for the Section 110 became decidely insignificant and faded into the background secondarily.
Respondent victims of such an Application should therefore thoroughly scrutinise the Agency's documentation.
Be wary of any agency decision which qualifies an access application as unmeritorius. This is the first gate the agency needs to go through, it is Step 1 for planning an action for a Section 110 Order.
If a member of the public receives an agency response to a valid access application for government information, fitting the parameters of an unmeritorious application, consider whether or no that decision needs to be reviewed.
Consider the history with the agency. Consider any other history with other agencies. Agencies are now documented, as with the cases outlined below where agencies are on the record colluding against the public they serve, to work together to the detriment and damage of the public.
So who's paying the costs for these Section 110 Applications?
It is always the tax payer who pays.
In some instances the Agency staff making the Application are also the individuals approving expenditure, and likely acting with a serious conflict of interest in doing so. In other instances, documents show an Agency lodging an Application under cover of its Workers Compensation Insurance Policy.
Either way, the public is asked to read the figures and decide for itself whether or not the extraordinary amount of money Agencies are throwing at Section 110 Applications represents good value for public dollars.
A crucial question here is "Why are Agency in-house solicitors not dealing with these Applications directly?" and / or "Why are Agency Right to Information Officers, where these Applications originate, not dealing with these Applications themselves?"
The public should note that any person lodging a freedom of information request for NSW government records pays an Application Fee and any other fees and charges imposed by the Agency.
As such, the realisation the public also bears the burden of these exorbitant and unnecessary costs for an action against itself, is decidely repugnant, particulalry when / if a so-minded NCAT Tribunal Member approves a secondary Order for Costs......................
This is the first time the general public of NSW has had the opportunity to access and consider this kind of Agency financial information.
As at 10th October 2021, the Agency Port Stephens Council has expended the greatest amount of public monies on multiple attempts to secure a Section 110 Order against the same individual, being a staggering $201,607.81 (based on documents provided by it).
Should an Agency be allowed to lodge multiple Applications against the same person? Is this harassment?
As at 10th October 2021, the NSW Civil & Administrative Tribunal, NCAT, has indicated it is unable to quantify its costs for these particular Application Hearings or any resultant freedom of information requests it oversees the result of a successful Section 110 Order.
Regardless, it is the public that continues to carry this huge financial burden of departmental and administrative legal costs with no clear indication any granted Section 110 Order has been beneficial to any Agency in any way.
All comments, whether positive or negative, are welcome.
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Port Stephens Council
* Port Stephens Council v Webb (2017) NSWCATAD 341
* Webb v Port Stephens Council, Webb v Port Stephens Council, Port Stephens Council v Webb (2020) NSWCATAD 81
* Webb v Port Stephens Council (2020) NSWCATAP 152
* Port Stephens Council v Webb (2021) NSWCATAD 180
Total Costs disclosed by Council: $201,607.81
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northern beaches council
* Pittwater Council v Walker (2015) NSWCATAD 34
Total Costs disclosed by Council: $19,089.90
This Order was issued with a life-time imposition, that is it is a life time penalty.
As such the victim of this Order continues to lodge freedom of information requests with the NCAT at first instance.
These ongoing costs will be published as they become available.
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nsw department of education
* Department of Education v Zonnevylle (2020) NSWCATAD 96
Total Costs disclosed by Workers Compensation Insurer iCARE (Treasury Managed Fund): $127,521.71
iCARE is yet to disclose how these costs were paid for under a Workers Compensation Insurance Scheme.
This Order was issued with a life-time imposition, that is it is a life time penalty.
It is noted the ensuing Section 110 Order was made applicable to all NSW Agencies.
It is also noted that several NSW Agencies shared freedom of information documentation and other records with the Dept of Education, in fact supporting the Section 110 Application, breaching Mr Zonnevylle's privacy.
There is no evidence the victim of the Section 110 Order gave approval for the sharing of numerous documents between the Agencies, and most particularly with the Dept of Education, documents which contained his personal information.
As such the victim of this Order continues to lodge freedom of information requests with the NCAT at first instance, for any and all NSW government agencies.
These ongoing costs will be published as they become available.
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palerang, queanbeyan, & goulburn - mulwaree councils
* Palerang Council, Queanbeyan City Council & Goulburn Mulwaree Council v Powell (2015) NSWCATAD 44
These NSW Councils joined together, sharing freedom of information documentation and other records between each other, lodging a joint Section 110 Application.
There is no evidence the victim of the Section 110 Order gave approval for the sharing of numerous documents between the Agencies, documents which contained his personal information.
Goulburn- Mulwaree has disclosed its portion of the costs: $19,257.68
Queanbeyan-Palerang Council continously obstructed access to these costs (requested 17 August - released 23 December), however after an IPC review recommending Council make a new decision, the information was begrudgingly provided.
Queanbeyan-Palerang Council has disclosed its portion of the costs: $41,498.90
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university of technology sydney
* CEU v University of Technology Sydney, University of Technology v CEU (2019) NSWCATAD 11
The University of Technology has advised it does not hold any records concerning any financial costs for this matter, and as such the entity that paid the costs is yet to be disclosed.