NSW Civil & Administrative Tribunal Awards Legal Costs to Local Council Despite Evidence of Collusion
Involving the Office of the NSW Crown Solicitor 06.06.2023
Just days after publishing details of Port Stephens Council’s fraudulent Application for Costs with the NCAT, it has Ordered Telina Webb to pay compensation, with no reference whatsoever to the documented collusion within Council’s leger of accounts it provided under Affidavit.
Council had provided a leger of accounts totalling $20,914.85, but asked the NCAT for the amount of $10,000.00 in a lump sum payment.
The Tribunal decided to award Council an amount instead of $7,000.00 on the basis of a 30% discount, with a brief window of (28) twenty-eight days to finalise payment.
The leger of accounts listed numerous entries where Council’s legal representative Lindsay Taylor Lawyers had recorded time allocated to the Office of the NSW Crown Solicitor (CSO), where the CSO’s representative as second respondent in the proceedings was documented colluding with Port Stephens Council for the purposes of ensuring submissions and statements would align.
The leger records commentary and the sharing of the CSO’s documents with Council staff including Tony Leslie Wickham Governance Manager / Corporate Policeman, Lisa Helene Marshall Head of Legal Services, and Stephanie Eileen Posniak in-house solicitor who had supposed carriage of the matter.
“I was not aware of the collusion until I was provided a copy of the leger and was horrified to read Kiri Mattes name and the CSO acronym listed repeatedly. I was not aware of this at the time of course, but only became aware after the fact,” stated Ms Webb.
“I believe the public has the right to expect far more from the NCAT; it’s supposed to read and evaluate the evidence, be fully informed, be impartial, etc, etc. This decision yet again criticises non-legal parties, when they are doing the best that they can, and penalising them for mistakes or misinterpretation of protocols or legislation. Nowhere is there any information on the NCAT website or on any promotional material in the NCAT Registry Foyer, which stipulates any kind of criteria. Unfortunately taking a case to the NCAT is a game of Russian Roulette for the trusting public.”
The NCAT decision at Paragraphs 138 and 139 state: 138 “Mr Pennikilampi’s affidavit appends, as Annexure A, a fee ledger which shows the Respondent’s costs in the proceedings up until 12 January 2023 (before the Costs Application was made). This shows the total costs for the Respondent up until that date to be $20,914.85 including GST. It includes a breakdown by time units, tasks, and fee earners. The Tribunal considers that this costs information provides sufficient information to determine an appropriate sum from the available materials. 139 Further, Ms Webb’s conduct has unnecessarily contributed to the costs of the proceedings, and the costs incurred and being claimed are disproportionate to the result of the proceedings and the total costs of the proceedings would become even more disproportionate if the costs were referred for assessment and a lump-sum costs order were not made.” The Tribunal actually states “it includes a breakdown by time units, tasks, and fee earners.” This leaves no doubt whatsoever the Tribunal was fully informed of the collusion and compounded billing. But the decision fails to mention the Council and CSO are documented as blatantly colluding, compounding the costs listed on the leger, costs intended to be passed onto an unrepresented and unsuspecting applicant; absolutely no mention of this as misconduct of any kind.
Contact:
Kiri Sue Mattes, (02) 9474 9538
Tony Wickham, (02) 4988 0187
Lisa Marshall, (02) 4988 0377
Stephanie Posniak, (02) 4988 0530
Jennifer Chenhall, (02) 8235 9712
Council had provided a leger of accounts totalling $20,914.85, but asked the NCAT for the amount of $10,000.00 in a lump sum payment.
The Tribunal decided to award Council an amount instead of $7,000.00 on the basis of a 30% discount, with a brief window of (28) twenty-eight days to finalise payment.
The leger of accounts listed numerous entries where Council’s legal representative Lindsay Taylor Lawyers had recorded time allocated to the Office of the NSW Crown Solicitor (CSO), where the CSO’s representative as second respondent in the proceedings was documented colluding with Port Stephens Council for the purposes of ensuring submissions and statements would align.
The leger records commentary and the sharing of the CSO’s documents with Council staff including Tony Leslie Wickham Governance Manager / Corporate Policeman, Lisa Helene Marshall Head of Legal Services, and Stephanie Eileen Posniak in-house solicitor who had supposed carriage of the matter.
“I was not aware of the collusion until I was provided a copy of the leger and was horrified to read Kiri Mattes name and the CSO acronym listed repeatedly. I was not aware of this at the time of course, but only became aware after the fact,” stated Ms Webb.
“I believe the public has the right to expect far more from the NCAT; it’s supposed to read and evaluate the evidence, be fully informed, be impartial, etc, etc. This decision yet again criticises non-legal parties, when they are doing the best that they can, and penalising them for mistakes or misinterpretation of protocols or legislation. Nowhere is there any information on the NCAT website or on any promotional material in the NCAT Registry Foyer, which stipulates any kind of criteria. Unfortunately taking a case to the NCAT is a game of Russian Roulette for the trusting public.”
The NCAT decision at Paragraphs 138 and 139 state: 138 “Mr Pennikilampi’s affidavit appends, as Annexure A, a fee ledger which shows the Respondent’s costs in the proceedings up until 12 January 2023 (before the Costs Application was made). This shows the total costs for the Respondent up until that date to be $20,914.85 including GST. It includes a breakdown by time units, tasks, and fee earners. The Tribunal considers that this costs information provides sufficient information to determine an appropriate sum from the available materials. 139 Further, Ms Webb’s conduct has unnecessarily contributed to the costs of the proceedings, and the costs incurred and being claimed are disproportionate to the result of the proceedings and the total costs of the proceedings would become even more disproportionate if the costs were referred for assessment and a lump-sum costs order were not made.” The Tribunal actually states “it includes a breakdown by time units, tasks, and fee earners.” This leaves no doubt whatsoever the Tribunal was fully informed of the collusion and compounded billing. But the decision fails to mention the Council and CSO are documented as blatantly colluding, compounding the costs listed on the leger, costs intended to be passed onto an unrepresented and unsuspecting applicant; absolutely no mention of this as misconduct of any kind.
Contact:
Kiri Sue Mattes, (02) 9474 9538
Tony Wickham, (02) 4988 0187
Lisa Marshall, (02) 4988 0377
Stephanie Posniak, (02) 4988 0530
Jennifer Chenhall, (02) 8235 9712