Objectivity Disclosed As Essential Attribute for Prospective Agents to Represent Parties in the
NSW Civil & Administrative Tribunal, 03.07.2023
In a recent application in the NSW Civil & Administrative Tribunal (NCAT), an applicant sought to be represented by Telina Webb of NSW Freedom of Information in the capacity of Agent.
The Applicant submitted a Miscellaneous Application for the purpose, citing a number of reasons including extreme Post Traumatic Stress Disorder (PTSD), ongoing traumatisation, and no personal experience in the NCAT arena.
The Applicant sought an Administrative Review of a decision by NSW Police, where a Request for Review of Conduct under Section 53 of the Privacy & Personal Information Act 1998 (PPIP) was completely mismanaged and processed as a standard complaint, with the officer nominated to respond deciding to take no action whatsoever.
The Applicant complied with the legislation and sought the Review of Conduct of a Senior Police Officer at first instance however it was apparent from the response the Request for Review was treated as a generic complaint. It may have been the case the nominated officer was not aware of NSW Police' obligations under the PPIP Act 1998.
Section 53 of the PPIP Act 1998 makes clear that an agency in receipt of a Request for Review of Conduct is to liaise and report to the Office of the NSW Information & Privacy Commissioner (IPC).
This did not occur.
In a document dated 30th June 2023, NSW Police’ representative Louise Dargan of the Office of the NSW Crown Solicitor (CSO) conceded that the proper procedure as set out in the legislation had not been followed by NSW Police.
This was the understanding of the Applicant in the proceedings, and which resulted in her application to the Tribunal.
The Applicant, suffering extreme PTSD and ongoing trauma, from the loss of her son and the ongoing investigation into historical child sexual abuse, had approached Telina Webb to act as her Agent. The CSO / NSW Police is documented having no objection to Ms Webb acting in the role.
Presently the NSW Civil & Administrative Tribunal Act 2013 (NCAT Act) Section 45 states leave, or permission, of the tribunal is required for any person to be represented by an agent.
Today at the first case conference a Senior Member made some commentary suggesting that an Agent is required to have objectivity, not get personal, and not run the matter as though it was their own.
It would seem the Senior Member was not convinced Ms Webb was up to the task albeit the recent caselaw of Webb v Port Stephens Council (2023) NSWCATAD 137, Paragraph 88, which sees the Tribunal stating:
“……………However, it pointed out that she is well experienced with these matters, and has appeared in excess of 19 matters either self-represented or as her husband’s agent. She would in fact have more experience in NCAT and GIPA matters than many practising solicitors………..”
NSW Police petitioned the Tribunal to have the Request for Review of Conduct remitted back to NSW Police for a second attempt at complying with the legislation.
There was no mention by the Tribunal of NSW Police acting in breach of the legislation, not even a gentle reprimand, or any highlighting of what the due process encompassed. Instead the Tribunal agreed with the Respondent’s representative Ms Louise Dargan of the CSO that the matter should simply be remitted back to Ms Dargan / NSW Police for a second crack.
The Applicant’s application with the Tribunal is expectantly stayed awaiting the outcome of the second-attempt Review of Conduct, a process expected to take at least another (60) sixty days. The Applicant will then need to revisit the matter herself and decide whether or not NSW Police has addressed the Officer’s Conduct satisfactorily. Given the Applicant first became aware of the breach of her privacy by NSW Police on 01st January 2023, it is clear she still has a long wait before some degree of resolution will emerge.
With the Applicant already in a sensitive mental and physical state, it is very disappointing the Tribunal did not allow Ms Webb to act as agent on compassionate grounds alone.
“Time and time again we see the NCAT giving agency personnel chance after chance to get things right, turning a blind eye to breaches of various legislation and fundamentally acting with dereliction of duties. There are no reports by Tribunal Members to regulatory bodies, no action taken, concerning any agency personnel who behave so. This is a completely different attitude to the general public, a great deal of whom are self-represented with no legal qualifications or experience whatsoever, who find one mistake or wrong move can see their applications in the trash, receiving damning caselaw for their efforts, and agencies readily able to seek costs.
Likewise there are numerous instances of agency solicitors behaving badly which see no action and much less commentary from the Tribunal, such as the recent actions of Justice NSW’ Jonathan Franklin who provided evidence Justice NSW had trolled the internet for information to be used against an unrepresented party, screenshots which only showed a history of public commentary and the community’s ongoing support for one another on the subject of NCAT and accessing government information. If a member of the public were to act in the same way as Jonathan Franklin the Tribunal would take a very dim view of such conduct and dismiss it as irrelevant to proceedings and decidedly vexatious.
Personally, I consider trolling as stalking, which is an offence under the Crimes Act 1900.
The Tribunal has today suggested objectivity is an essential attribute for any potential Agent seeking leave to represent in the NCAT, with the public continually begging the NCAT to show some small degree of objectivity towards agency personnel who are now on the record falsifying records, breaching the legislation, and causing irreparable damage to those unable to defend themselves. It’s the same old story regrettably, it all depends on which end of the bar table you sit,” stated Ms Webb.
“Members of the public who are not able to stand up and speak for themselves for any number of reasons, and who cannot afford or don’t have the means to purchase a solicitor, should not be prevented from accessing someone who can speak on their behalf, even if that means a public advocate. The Tribunal’s reluctance to exercise discretionary powers of the most fundamental kind can impact on whether or not members of the public bring legitimate matters before the Tribunal, which can result in another latent mechanism to ensure agency personnel continue to be unaccountable. It all just becomes too hard, too distressful, far too expensive, and not worth the effort, which is what many people believe IS the whole objective.”
Contact: Louise Dargan, (02) 9274 9351 Jonathan Franklin, (02) 9765 4084
The Applicant submitted a Miscellaneous Application for the purpose, citing a number of reasons including extreme Post Traumatic Stress Disorder (PTSD), ongoing traumatisation, and no personal experience in the NCAT arena.
The Applicant sought an Administrative Review of a decision by NSW Police, where a Request for Review of Conduct under Section 53 of the Privacy & Personal Information Act 1998 (PPIP) was completely mismanaged and processed as a standard complaint, with the officer nominated to respond deciding to take no action whatsoever.
The Applicant complied with the legislation and sought the Review of Conduct of a Senior Police Officer at first instance however it was apparent from the response the Request for Review was treated as a generic complaint. It may have been the case the nominated officer was not aware of NSW Police' obligations under the PPIP Act 1998.
Section 53 of the PPIP Act 1998 makes clear that an agency in receipt of a Request for Review of Conduct is to liaise and report to the Office of the NSW Information & Privacy Commissioner (IPC).
This did not occur.
In a document dated 30th June 2023, NSW Police’ representative Louise Dargan of the Office of the NSW Crown Solicitor (CSO) conceded that the proper procedure as set out in the legislation had not been followed by NSW Police.
This was the understanding of the Applicant in the proceedings, and which resulted in her application to the Tribunal.
The Applicant, suffering extreme PTSD and ongoing trauma, from the loss of her son and the ongoing investigation into historical child sexual abuse, had approached Telina Webb to act as her Agent. The CSO / NSW Police is documented having no objection to Ms Webb acting in the role.
Presently the NSW Civil & Administrative Tribunal Act 2013 (NCAT Act) Section 45 states leave, or permission, of the tribunal is required for any person to be represented by an agent.
Today at the first case conference a Senior Member made some commentary suggesting that an Agent is required to have objectivity, not get personal, and not run the matter as though it was their own.
It would seem the Senior Member was not convinced Ms Webb was up to the task albeit the recent caselaw of Webb v Port Stephens Council (2023) NSWCATAD 137, Paragraph 88, which sees the Tribunal stating:
“……………However, it pointed out that she is well experienced with these matters, and has appeared in excess of 19 matters either self-represented or as her husband’s agent. She would in fact have more experience in NCAT and GIPA matters than many practising solicitors………..”
NSW Police petitioned the Tribunal to have the Request for Review of Conduct remitted back to NSW Police for a second attempt at complying with the legislation.
There was no mention by the Tribunal of NSW Police acting in breach of the legislation, not even a gentle reprimand, or any highlighting of what the due process encompassed. Instead the Tribunal agreed with the Respondent’s representative Ms Louise Dargan of the CSO that the matter should simply be remitted back to Ms Dargan / NSW Police for a second crack.
The Applicant’s application with the Tribunal is expectantly stayed awaiting the outcome of the second-attempt Review of Conduct, a process expected to take at least another (60) sixty days. The Applicant will then need to revisit the matter herself and decide whether or not NSW Police has addressed the Officer’s Conduct satisfactorily. Given the Applicant first became aware of the breach of her privacy by NSW Police on 01st January 2023, it is clear she still has a long wait before some degree of resolution will emerge.
With the Applicant already in a sensitive mental and physical state, it is very disappointing the Tribunal did not allow Ms Webb to act as agent on compassionate grounds alone.
“Time and time again we see the NCAT giving agency personnel chance after chance to get things right, turning a blind eye to breaches of various legislation and fundamentally acting with dereliction of duties. There are no reports by Tribunal Members to regulatory bodies, no action taken, concerning any agency personnel who behave so. This is a completely different attitude to the general public, a great deal of whom are self-represented with no legal qualifications or experience whatsoever, who find one mistake or wrong move can see their applications in the trash, receiving damning caselaw for their efforts, and agencies readily able to seek costs.
Likewise there are numerous instances of agency solicitors behaving badly which see no action and much less commentary from the Tribunal, such as the recent actions of Justice NSW’ Jonathan Franklin who provided evidence Justice NSW had trolled the internet for information to be used against an unrepresented party, screenshots which only showed a history of public commentary and the community’s ongoing support for one another on the subject of NCAT and accessing government information. If a member of the public were to act in the same way as Jonathan Franklin the Tribunal would take a very dim view of such conduct and dismiss it as irrelevant to proceedings and decidedly vexatious.
Personally, I consider trolling as stalking, which is an offence under the Crimes Act 1900.
The Tribunal has today suggested objectivity is an essential attribute for any potential Agent seeking leave to represent in the NCAT, with the public continually begging the NCAT to show some small degree of objectivity towards agency personnel who are now on the record falsifying records, breaching the legislation, and causing irreparable damage to those unable to defend themselves. It’s the same old story regrettably, it all depends on which end of the bar table you sit,” stated Ms Webb.
“Members of the public who are not able to stand up and speak for themselves for any number of reasons, and who cannot afford or don’t have the means to purchase a solicitor, should not be prevented from accessing someone who can speak on their behalf, even if that means a public advocate. The Tribunal’s reluctance to exercise discretionary powers of the most fundamental kind can impact on whether or not members of the public bring legitimate matters before the Tribunal, which can result in another latent mechanism to ensure agency personnel continue to be unaccountable. It all just becomes too hard, too distressful, far too expensive, and not worth the effort, which is what many people believe IS the whole objective.”
Contact: Louise Dargan, (02) 9274 9351 Jonathan Franklin, (02) 9765 4084