Port Stephens Council's Submissions - Pleading for Anonymity McEwan v Port Stephens Council (2022) NSWCATAD 148

The Respondent seeks a Non-Disclosure Order in these proceedings 26. The Respondent seeks an order pursuant to s64(1)(a) of the CAT Act that the disclosure of the name of Mr Tony Wickham and his role or title at Council in connection with these proceedings be prohibited. 27. Section 64(1)(a) relevantly provides (emphasis added): ‘64 Tribunal may restrict disclosures concerning proceedings
(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal)…’ 28. Pursuant to s64(4) ‘a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.’ 29. The principles relevant to the making of an order under s64(1) were summarised by the Tribunal in EQH v Health Administration Corporation [2021] NSWCATAD 215 AT [17] – [20]. 30. In particular that case refers to the relevant matters for consideration set out in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [81] which are: a. the presumption in favour of open justice, b. the need for an applicant for a suppression order to establish good grounds for making the order, c. the comparative breadth of the criterion of ‘desirability’, d. the important differences between the types of suppression order that may be made - between (for instance) an order as in this case prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party, e. the undoubted breadth of the range of purposes that may be served (‘any other reason’), f. the possibility that the purposes to be served may be a mixture of private and public interest; and g. the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order. 31. The Respondent says that it is desirable to make a non-disclosure order in this case in order to: a. prevent causing reputational damage by the publication of the unsubstantiated allegations, and b. prevent lack of procedural fairness to Mr Wickham in that these proceedings do not provide an appropriate forum for Mr Wickham to respond to allegations by the Applicant against him. 32. Not publishing the name of Mr Wickham does not affect principles of open justice as: a. The material filed if relevant can be considered and reasons provided without reference to Mr Wickham personally, or his role or title at the Council, and b. open justice not affected by the non-publication of name or role of the person the subject of false allegations. On the contrary it would be inconsistent with the principles of natural justice to do so. 33. In any case it is appropriate that these considerations override the presumption in favour of open justice with respect to the identity of Mr Wickham for the above reasons.

Please note: "Any person seeking the full Submission can contact Telina Webb at info@nswfreedomofinformation.net.

Affidavit of Paul McEwan (attachments to be uploaded shortly) McEwan v Port Stephens Council (2022) NSWCATAD 148

I say on oath:1 I am the Applicant in these proceedings. 2 I acknowledge this matter does not concern a review of any administrative decision concerning the requested information the subject of this matter, that is the Objecting Submissions to the DA No: 483 of 2011. 3 I also acknowledge this matter does not concern any formal or judicial review of conduct of any officer of Port Stephens Council, but most particularly Council’s Governance Manager Tony Wickham and Council’s Head of Legal Services Lisa Marshall both persons of which represented Port Stephens Council in this matter and those (4) four matters joined and heard at the same time as mine. 4 This matter concerns the Not-for-Publication Orders issued by Senior Member Montgomery of the NCAT dated 08th September 2017, Orders which were upheld in the following Appeal Hearing and Remittal. 5 This Miscellaneous Application concerns the Tribunal’s power to revoke those orders and this application is the formal request the Tribunal do so completely and in full. 6 This matter concerns a history of conduct and actions by Council’s Tony Wickham of Port Stephens Council in his capacity as Governance Manager and Right to Information Officer, particularly relating to the manner in which he personally responded to my valid requests for open access information mandated for release, and his deliberate actions to repeatedly influence decision makers throughout external review processes, including several members of the NCAT, to achieve a hidden pre-determined objective. 7 The history of this matter is relevant for the Tribunal’s broader understanding and consideration of why this Application has been lodged, and the validity and relevance of it. 8 Regrettably the history of this matter will show agency senior executives systematically acted to purposefully victimise and criminalise me for exercising my legally enforceable right to access NSW government records. 9 The documents the subject of these NCAT proceedings were the open access objecting submissions to the DA No: 483 of 2011. 10 At all times I have strictly adhered to policy, procedure, legislation and established avenues of review in relation to exercising my fundamental rights to access these open access documents. 11 The Tribunal will also note I have always acted with the utmost propriety before the Tribunal, accepting the Tribunal’s Decisions at first instance, following legislated appeal and review processes, and have always treated and addressed each and every Tribunal Member with the utmost of respect. 12 At no time whatsoever have I made any misrepresentation to any Tribunal Member. Historical Background to Objecting Submissions to DA No: 483 of 2011 13 Prior to lodging my Development Application (DA) I consulted Council Duty Planners about my prospective development on several occasions, in line with Council’s published information, to ascertain whether or not Council required a formal Development Application. 14 Those consultations resulted in Council stating repeatedly it was not interested in the project. 15 On the basis of Council’s multiple reassurances, I naturally commenced my project, a privacy screen.21st April 2011 16 However, when the project was 80% complete, in April 2011 one of my neighbours who is confirmed as suffering from dementia (of which the NCAT has received evidence) contacted Council and complained about the development, informing Council I had threatened to kill her. 17 At no time whatsoever have I threatened to kill my neighbour or any other person during my entire life, neither have I made any threats of any kind of harm towards any individual during my entire life. 18 Without any attendance at my property to conduct an assessment, Council then directed me to lodge a DA. 19 A full DA, inclusive of the 80% completed component, despite the caselaw making it clear Council’s and development approval authorities are precluded by law from giving retrospective approvals on completed works:• J Talbot stated in Dennis Foster Insurance Brokers Pty Ltd –V Sydney City Council [1999] NSWLEC 53 at Paragraph 13: “Recent decisions of this Court (below) confirm the long-established principle that a retrospective consent or approval cannot be obtained under the Environmental Planning and Assessment Act 1979 (EPA Act) or the Local Government Act 1993 (LG Act).”• Tennyson Textile Mills Pty Ltd v Ryde Municipal Council (1952) 18 LGR (NSW) 231)• Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192• Ross Connell v Armidale City Council (Pearlman J unreported 25 September 1996 No. 10272 of 1996 and 20068 of 1996)
20 It is abundantly clear to me now that Port Stephens Council breached established development application protocols at first instance in 2011, and its continued disregard for legal precedents, policy and procedures, and the legislation, are further evidence it has normalised unacceptable practices. 21 This Miscellaneous Application does not seek a review of those actions. 13th July 2011 22 In support of my forced Development Application, I managed to obtain (3) three Proforma letters from (3) three of my (5) five boundary neighbours, which stated they did not have any objection to my development. 23 Those individuals were:i. Mr & Mrs Brett & Leanne Fatches, 4 – 6 Panorama Close Raymond Terrace• Brett Fatches has been a Council Committee Member for many yearsii. Mr Michael Deamer, 43 Beaton Avenue Raymond Terraceiii. Mr Brian Gear, 41 Beaton Avenue Raymond Terrace 24 A copy of the Proforma letters is at Attachment A 15th July 201125 Full DA No: 483 of 2011 lodged. 26th July 201126 Council notified all (5) five neighbours of the development application, evidenced within Council’s TRIM / EDRMS system. 27 Those individuals were:i. Mr & Mrs John & Joyce Logan, 5 Sapphire Court Raymond Terraceii. Mrs Genevieve Espinola AKA Mrs Genevieve Janaf Odeh, 10 Panorama Close Raymond Terraceiii. Mr & Mrs Brett & Leanne Fatches, 4 – 6 Panorama Close Raymond Terrace – Brett Fatches was a Council Committee Member at that timeiv. Mr & Mrs Michael Deamer, 43 Beaton Avenue Raymond Terracev. Mr Brian Gear, 41 Beaton Avenue Raymond Terrace 28 A copy of the list of notified neighbours is at Attachment B29 A copy of the TRIM / EDRMS system is at Attachment C 30 Council misrepresented the number of notifications it sent to neighbouring properties in NCAT Matter No’s: 2016-00378165 & 2016-00378010 inclusive of the Appeals and Remittal. 31 Council has always maintained it only sent (2) two notification letters which is false. 32 Council also misrepresented the date the DA was first advertised, evidenced in the comments at P68 of SM Montgomery’s decision of 08th September 2017. 33 Those misrepresentations were made by Council’s Tony Wickham in his Statements and Redeterminations for both matters. 34 This Miscellaneous Application does not seek a review of those actions. 35 Council’s notification letters made clear objecting submissions were open access information and would be released if requested in accordance with the GIPA Act 2009. 36 However, Council’s initial provision of the letters concealed the paragraph stating:“Please note: The Government Information (Public Access) Act 2009, (GIPA) applies to Council. All submissions received are considered to be “open access information” under GIPA and therefore will be made available to members of the public, if requested.” 37 A copy of the (2) two redacted letters released is at Attachment D38 A copy of the (2) unredacted letters released is also at Attachment D 28th July 201139 Council advertised the DA No: 483 of 2011 in the local print media. 40 The publication made clear objecting submissions were open access information and would be released if requested in accordance with the GIPA Act 2009. 41 A copy of Council’s publication is at Attachment E August 201142 Of the (5) five adjoining properties, (3) three of those had provided a Proforma signed document stating they had no objection to the development. 43 Expectantly, the (2) two Objecting Submissions received by Council in August 2011 originated from the remaining (2) two neighbours. 44 The identities of the (2) two objectors were disclosed by Council in a Council report:a) Mr & Mrs John and Joyce Logan, 5 Sapphire Court Raymond Terrace b) Mrs Genevieve Espinola AKA Mrs Genevieve Janaf-Odeh, 10 Panorama Close Raymond Terrace 45 A copy of Council’s report disclosing the objectors is at Attachment F September 201146 By September 2011 my wife and I had repeatedly requested access to the Objecting Submissions in line with the GIPA Regulations 2009 Schedule 1, Open Access Information Mandated for Release and having read Council’s public notice of 28th July 2011. We had requested the documents to better understand what the issues of objection were. 47 Council had refused to allow that access making reference to concerns of personal safety. 16th September 201148 10.15am, in contrast to Council’s response to my wife and my valid requests for the objecting submissions, on 14th September 2011 an individual approached Tony Wickham directly by phone, enquiring about access to the (2) two Objecting Submissions. This telephone conversation was referred to in an email authored by Tony Wickham. 49 The Tribunal is asked to note the subject heading of Tony Wickham’s originating email: “Informal GIPA Request for Submission on 3 Sapphire Circuit, Raymond Terrace.” 50 It is noted Tony Wickham provides this person access to the Objecting Submissions Informally. There is no mention of costs. The individual is provided the requested information Informally at first. Tony Wickham makes clear he has provided the individual “the file”. 51 The subject heading of the email is Tony Wickham’s concession such documents are provided informally and without procrastination of any kind. 52 Tony Wickham makes clear “there is a further submission that has been withheld per third party consultation.” 16th September 201153 12.46pm, Tony Wickham sends a secondary email on the same day to the same person confirming “the file I sent you were all the submissions received bar one. As indicated in my email there was one submission that I am not able to provide.” 54 Tony Wickham discloses to this individual whom he is on first-name basis with, the number of objecting submissions at that time are (2) two. 55 A copy of Tony Wickham’s emails is at Attachment G 56 Council did not disclose this email trail until June 2019, and there is no evidence Council made it available to the Tribunal at any time during my matter. 57 The individual communicating with Tony Wickham has an interest in the DA No: 483 of 2011. Given the development concerned a privacy screen, placed inside my property perimeter, the only interested parties were the adjoining neighbours, one of which was a Council Committee Member at that time. 58 There is no evidence Council disclosed its preferential treatment to this member of the public throughout NCAT Matter No’s: 2016-00378165 & 2016-00378010 inclusive of the Appeal and Remittal. 27th October 201159 Council determined the refusal of the DA No: 483 of 2011 in its entirety, including the 80% component precluded for determination by law. 60 Following receipt of Council’s refusal of the DA, my wife and I petitioned Council for information concerning Council’s review options, including copies of its policies and procedures relating to the DA process. 03rd November 201161 Evidently this annoyed Council and resulted in Council formally restricting our access to Council services, a restriction Council maintained for in-excess of (18) eighteen months with no avenue of review. 10th January 201262 Council issued a Partial Demolition Order for reduction in overall height of the privacy screen, including the 80% completed component. 63 A Council Planner disclosed that a Request for Review under Section 82a of the EP&A Act 1979 would place the Order on hold pending the outcome of the Review. 16th January 201264 Requested Council provide access to mandatory interest disclosures in accordance with legislation and Council’s Code of Conduct. 65 Council did not provide disclosures. In particular it did not provide the disclosures of (1) one of the neighbours who had signed a Proforma letter on 13th July 2011, who was a Port Stephens Council Committee Member at that time. 66 Neither did Council provide the disclosures for its solicitor Lisa Gowing AKA Felicity Connors concerning her relationship to seconded barrister John Connors, her husband. 67 This Miscellaneous Application does not seek a review of those actions. 68 Council responded to the request to access interest disclosures by engaging an external legal team. 69 A copy of my request for disclosures is attached at H 70 A copy of Council’s disclosure of engagement of legal services is also attached at HFebruary 2012 71 Council issued (2) two Orders to Forcibly Enter Premises albeit we had not refused Council access to our property.13th March 2012 72 I lodged the Request for Review under Section 82a of the EP&A Act 1979. 26th March 201273 Council again notified the (5) five adjoining neighbours of the 82a Request, evidenced within Council’s TRIM / EDRMS system. 74 For a second time Council misrepresented the number of secondary notifications it sent to neighbouring properties in NCAT Matter No’s: 2016-00378165 & 2016-00378010 inclusive of the Appeal and Remittal. 75 Those misrepresentations were made by Council’s Tony Wickham in his Statements and Redeterminations for both matters. 76 This Miscellaneous Application does not seek a review of those actions. 77 Council’s notification letters made clear objecting submissions were open access information and would be released if requested in accordance with the GIPA Act 2009. 78 A copy of the list of notified neighbours is at Attachment I79 A copy of the TRIM / EDRMS system is at Attachment J80 A copy of the (2) two redacted letters released is at Attachment K81 A copy of the (2) unredacted letters released is also at Attachment K 28th March 201282 Council advertised the DA No: 483 of 2011 82a Request for Review in the local print media. 83 The secondary publication again made clear objecting submissions were open access information and would be released if requested in accordance with the GIPA Act 2009. 84 A copy of Council’s published notice is at Attachment L
30th March 201285 11.55am, in response to receipt of Council’s secondary letter of notification of the DA No: 483 of 2011, the individual who was provided the Objecting Submissions on 16th September 2011 re-establishes communications with Tony Wickham, adding this new communication to the earlier email trail of September 2011, ensuring Tony Wickham knows who is contacting him. 86 This individual has been advised by Council letter and publication in July 2011, and now Council’s secondary letter and publication of March 2012, that Objecting Submissions to a development are Open Access Information under the GIPA Act 2009 and will be provided if requested. 87 Additionally, the individual now knows by example of Tony Wickham that such documents are provided at first instance, Informally, as has been afforded him / her. 88 Joined to the earlier email trail, the individual asks Tony Wickham directly how his / her objecting submission can be accepted by Council whilst being withheld from public release. 89 There is no evidence Tony Wickham informed the individual of Council’s legal obligations under the GIPA Act 2009, neither did he refer the person to the (2) two notification letters or the (2) two publications. Additionally, there is no mention from Council’s Senior Right to Information Officer that the information the subject of discussion is Open Access Mandated for Release if requested. 90 There is no evidence Tony Wickham informed the individual of the review process should Council comply with its statutory obligations in relation to the subject documents, a review process that would see the individual taking up such action and not the person requesting the information. 91 There is documentary evidence however, in Tony Wickham’s return email at 5.02pm, advising the document could be restricted from release for reasons such as: i. Privacy & Personal Information Protection Act 1998Orii. expose a person to a risk of harm or of serious harassment or serious intimidation. 92 There is no evidence Tony Wickham advised the individual it is an offence to provide false and misleading information to a government agency. 93 Instead, this dialogue gives the clear message from the Port Stephens Council Executive Officer “you can claim this”. 94 Tony Wickham also discloses he has had a telephone conversation earlier in the day with the individual, a conversation that informs the individual that any Formal Application for the subject documents had review rights with the Office of the Information Commissioner, and that the Commission would consult with Council should that occur. 02nd April 201295 Before Tony Wickham has received the objecting submission and considered its content, he informs the individual “I have re-affirmed with staff that they need to ensure they check with me before anything is released. I know they are already doing this but just to make sure.” 96 There is no evidence Council disclosed these communications throughout NCAT Matter No’s: 2016-00378165 & 2016-00378010 inclusive of the Appeal and Remittal. 97 The aforementioned communication exchange establishes there is an agreement in place between the individual and Tony Wickham, in contradiction to the GIPA Act 2009 and the GIPA Regulations 2009. 98 That agreement includes Port Stephens Council responding to any enquiries from the Information & Privacy Commissioner, in the event the information is refused according to the clauses referred to, and a review is sought. 04th April 201299 With Tony Wickham’s personal assurance of guaranteed anonymity and the concealment of the Open Access Objecting Submissions, the person advises Tony Wickham by email that he has lodged the document. 100 For the benefit of the Tribunal, it is now clear Council has received a minimum of (3) three objecting submissions by 04th April 2012. 101 There is no evidence Council disclosed this information to the Tribunal at any time. 102 This Miscellaneous Application does not seek a review of those actions. 103 A copy of the email trail is at attachment M.
08th May 2012104 The 82a Request for Review is Determined as Refused. 105 Council also issued a report falsely stating it had only received (2) two objecting submissions as at that date. 106 This was due to the agreement between Tony Wickham and a member of the public to conceal an open access document mandated for release, an agreement that deliberately compromised Council records. 107 This Miscellaneous Application does not seek a review of those actions. 108 Once again my wife and I requested access to the objecting submissions. 109 A copy of our request for the objecting submissions is attached at N. 16th May 2012110 11.04am, Tony Wickham wrote to the same individual, on the same email trail with the subject heading “INFORMAL GIPA REQUEST FOR SUBMISSION ON 3 SAPPHIRE CIRCUIT, RAYMOND TERRACE”, advising the individual Council had received a request for the protected document. 111 12.03pm, the individual replies, reminding Tony Wickham of the earlier objections to the release of the document. 112 On the same day Tony Wickham refused my wife and I access to ALL of the objecting submissions, enclosing a Formal Access Application Form and inviting application for the documents using that mechanism. 113 It is now abundantly clear to me the agreement between Tony Wickham and the individual completely compromised the legislated request for information process. 114 Tony Wickham had established the grounds for refusal of the documents should Council receive a Formal Access Application. 115 In this regard, the request for information process was completely corrupted by Council’s Senior Right to Information Officer, with the parameters for any future refusal firmly set, and Tony Wickham’s invitation to lodge a Formal Access Application was completely disingenuous. 116 There is no evidence Council disclosed the agreement throughout NCAT Matter No’s: 2016-00378165 & 2016-00378010 inclusive of the Appeal and Remittal. 117 This Miscellaneous Application does not seek a review of those actions. 118 A copy of the email trail is at attachment O.119 A copy of Council’s refusal to release the objecting submissions is also at P. 06th June 2012120 Council issued a new Order for Full Demolition of the privacy screen which was 80% complete. 121 A Council Planning Manager issues an internal memo disclosing to staff the satisfaction of the Order for Full Demolition is not sought by Council, that it is actually agreeable to the parameters of the Order for Partial Demolition of 10th January 2012, but advising staff not to disclose this to my wife or I. 122 This Miscellaneous Application does not seek a review of those actions. 123 A copy of Council’s internal memo is at attachment Q. 15th June 2012124 Council refused a secondary 82a Request for Review under the EP&A Act 1979. 04th July 2012125 Completely unaware Council did not require the Order for Full Demolition to be satisfied, my wife and I filed our case with the Land & Environment Court for a review of Council’s Order for Full Demolition. 05th October 2012126 Council’s solicitor forwarded a letter written by Council, with our names on it as the authors, stating that signing would resolve the Land & Environment Court proceedings. 127 Council released a false development report stating it had only received (2) two objecting submissions in response to the original advertisement. 128 Council Planning Staff were aware at least one additional objecting submission had been received in response to the secondary advertisement. 129 This was the ongoing result of the agreement between Tony Wickham and a member of the public in March / April 2012, to conceal an open access document mandated for release, an agreement that deliberately compromised Council official records. 130 There is no evidence Council disclosed this to the Tribunal. 131 This Miscellaneous Application does not seek a review of those actions. 132 A copy of the Council-written letter with our names is at attachment R.133 A copy of Council’s false report is also at attachment R. 16th October 2012134 Council’s solicitor filed the Statement of Facts and Contentions concerning the Land & Environment Court matter for review of the Order for Full Demolition. 135 The document raises serious concerns as it makes clear:i. Council received (2) two objecting submissions in response to its notification letter dated 26th July 2011.ii. Council received (2) objecting submissions in response to is notification letter dated 28th March 2012. 136 This does not align with the records provided by Council. 137 At no time did Council advise my wife or I it had received any objecting submissions in response to its secondary letter of notification and its correlating public advertisement in 2012. 138 There is no evidence Council disclosed its ongoing agreement to conceal development application records from the Land & Environment Court at any time during the proceedings. 139 There is no evidence Council disclosed it did not require the satisfaction of the Order for Full Demolition to the Land & Environment Court. 140 This Miscellaneous Application does not seek a review of those actions. 141 In 2018 I obtained a full and unedited copy of the Land & Environment Court file for Matter No: 2012 / 10678, my matter concerning a review of Order for Full Demolition which Council staff had made clear did not require satisfaction. 142 It is noted Council did not make the objecting submissions available to the Court. 143 I have not provided a copy of that file with this Statement due to its bulk. 144 A copy of the Statement of Facts & Contentions is attached at S. 20th December 2012145 With the Land & Environment Court matter finalised in November 2012, and having regard to Tony Wickham’s May 2012 invitation to lodge a Formal Access Application for the objecting submissions, my wife lodged (2) two such separate applications, on the basis that Council had disclosed to us there were only ever (2) two objectors. 146 The first request sought access to the objecting submissions originating from Mrs Genevieve Espinola AKA Mrs Genevieve Janaf Odeh. 147 The second request sought access to the objecting submissions originating from Mr & Mrs John & Joyce Logan. 148 A copy of those requests for information is at attachment T. 07th February 2013149 Tony Wickham refused access to all the records for both access applications, and imposed fees totalling $360.00. 150 He refused the documents on the basis of the GIPA Act 2009 Section 14 Table 3 (a), (b), and (f). 151 It is important to note Tony Wickham’s Determinations produced (6) six records in total in response to my wife’s (2) two access applications, specifically (3) three documents per request. 152 A copy of Tony Wickham’s Determinations is at attachment T. 153 Tony Wickham thereafter published his determinations on Council’s website which remained for over a year, with the document outlining Section 14 Table 3 (f). 154 It is noted there has never been any requirement under the GIPA Act 2009 to publish non-disclosure responses to Formal Access Applications. 155 A copy of Tony Wickham’s publications is also at Attachment T. 156 This Miscellaneous Application does not seek a review of those actions.February 2015 157 I again Informally requested access to the objecting submissions to the DA No: 483 of 2011, however asking for ALL such documents. 158 In line with the agreement between Tony Wickham and the individual, my Informal Request was refused. 159 Council informed me “We refused your wife in 2012 and we’re refusing you.” Council correspondence followed stating it would NOT accept a Formal Access Application from me, in contradiction to Tony Wickham’s invitation to do so on 16th May 2012. 160 These actions by Port Stephens Council do not align with the legislation. 161 This Miscellaneous Application does not seek a review of those actions. 03rd March 2015162 I reported Council’s refusal to accept a valid Formal Access Application from me to the Information and Privacy Commissioner. 17th March 2015163 In line with the agreement between Tony Wickham and the individual in March / April 2012, Council DID respond to the Commissioner’s enquiries concerning my report. 164 That response comprised a number of false and misleading statements to the Investigating Officer of the Commissioner’s Office. 165 Tony Wickham authored and signed the letter, falsely stating apprehended violence orders had been issued against my wife and I, that police had been called to our neighbourhood due to disturbances involving us, that we had personally attacked Council staff, and that my wife and I presented a serious risk to public safety. 166 Tony Wickham knew there was no evidence to support his false claims. 167 Ordinarily under the GIPA Act 2009 Exempt Information clause, Tony Wickham’s letter would not be made public, however Council’s solicitor Carlo Zoppo provided an unredacted copy of it to my wife. 168 In response to Tony Wickham’s letter, the IPC instructed Council to accept a valid Formal Access Application from me at first instance and allow due process. 169 Before lodging any Formal Access Application with Council, I reported Council’s refusal to accept a valid Formal Access Application from me, to the Anti-Discrimination Board (ADB), as I viewed Council’s response as a refusal on the basis of my marital status. 170 In response to the report to the ADB, Council provided Tony Wickham’s false and misleading letter dated 17th March 2015. 171 The ADB referred the report to the NCAT for consideration. In this regard, NCAT is now confirmed to have received a copy of Tony Wickham’s false and misleading letter. 172 This Miscellaneous Application does not seek a review of those actions. 173 A copy of Tony Wickham’s document is at attachment U. 06th June 2016174 Formal Access Application lodged with Port Stephens Council for ALL objecting submissions to DA No: 483 of 2011. 29th June 2016175 Council issued its Notice of Decision refusing the requested information in its entirety. 176 Council’s Notice of Decision stated Council had consulted with third parties in the (2) two months prior, however I had not lodged any Formal Access Applications in that time. 177 Council refused access to the documents on the basis of Section 14 Table 3(a), (b), and (f) of the GIPA Act 2009. 178 It is also noted Council’s Schedule of Documents attached to the Notice of Decision listed (4) four only documents in total. 179 This was different to Council’s Notice of Decision for my wife of 07th February 2013 which resulted in (6) six documents. 180 It is also noted my wife requested documentation originating from (2) two only property owners. 181 Whereas I had requested ALL documentation. 182 For the benefit of the Tribunal, with the disclosure by Tony Wickham on 07th February 2013 Council had identified (6) six objecting submissions, and by adding the concealed objecting submission received by Council on 04th April 2012, it is clear Council deliberately misrepresented the number of documents in Council’s possession which totalled (7) seven at minimum. 183 For additional benefit of the Tribunal, it is referred back to Tony Wickham’s email in March / April 2012 that “staff have been instructed nothing’s to get past me. They are already doing this but just to make sure.”
184 As such, the Determining Officer was under instruction from Tony Wickham to check with him before releasing any information. Tony Wickham’s instruction compromised the Determining Officer who at that time was under probation. 185 Council did not disclose to me that an arrangement was in place concerning some of the objecting submission documentation. 186 In this regard, Tony Wickham is personally responsible as having completely compromised the right to information process. 187 This Miscellaneous Application does not seek a review of those actions. 12th July 2016188 I lodged my Application for Administrative Review with the NCAT. 12th September 2016189 Council filed “confidential” Statements and Submissions totalling approximately (45) forty-five pages. The Registry records show Council did not make an application to NCAT to do so. 14th October 2016190 At the case conference for this matter Council volunteered to undertake a Re-Determination concerning the objecting submissions. 191 At the case conference the NCAT’s SM Perrignon notably stated words to the effect “I’ve read the documents, there’s nothing confidential there, why don’t you just give it to them?” However, Council chose to continue with the proceedings. 11th November 2016192 Tony Wickham issued his Re-Determination of refusal to release the documents, relying on Section 14 Table 3(a), (b), and (f). 193 There is no evidence Tony Wickham made any mandatory disclosure of his personal interest in the outcome of the Re-Determination and his personal connection to one of the authors of the subject documents. 194 Tony Wickham’s Re-Determination also listed (4) four only documents, which was false and misleading, and which now involved the NSW judiciary. 195 Any reasonable person would agree by this date a number of offences against various pieces of legislation had been committed by Port Stephens Council. 196 This Miscellaneous Application does not seek a review of those actions. 25th January 2017197 Council’s Tony Wickham and its Head of Legal Services Lisa Marshall filed open Statements and Submissions, inclusive of false statements I presented a serious risk of harm to the authors of the objecting submissions. 198 In particular at paragraph 7 of Tony Wickham’s Statement, he refers to Section 55 (6), a clause of the GIPA Act 2009 perfect for the occasion of making false and misleading statements about members of the public, where a Right to Information Officer relies on the fact he does not have to valid anything. 199 At that time both the NCAT and I had no knowledge Tony Wickham was the person who had suggested the use of Section 14 Table 3(f), that he had written a false and misleading letter to the IPC, and provided that letter to the ADB, and then the NCAT. 200 There was no reason at that time for the NCAT to view the document as false and misleading as Tony Wickham had not disclosed the full nature of events to the Tribunal. 201 The open Statements and Submissions provided by Council totalled (5) five pages. 202 This is in contrast to the “confidential” documents filed by Council which totalled approximately (45) forty-five pages. 203 A copy of Tony Wickham’s Statement and Council’s Submissions is at attachment V. 20th March 2017204 The Hearing Recording has relevance to this Miscellaneous Application. 205 At Disc 1 minute 24.10, almost immediately after documentation was entered into evidence, SM Montgomery facilitated the first confidential session. Accordingly my wife and I left the hearing room. 206 However, a witness I had summonsed, Mr John Logan one of the authors of the objecting submissions, was called into the confidential session. 207 Not having any experience in the NCAT prior to that day, I was completely unaware of what protocols should be in place, but I do now believe it was not acceptable for MY witness to be allowed into the confidential session, to discuss ME, when I was excluded and had no right of reply. 208 Thereafter at Disc 2 minute 00.00 to 1.03, SM Montgomery reconvenes the hearing with all parties, informing the hearing he’s spoken to Mr Logan and let him leave. 209 As a result I was not afforded the opportunity to cross-examine MY witness. 210 Further, I had also summonsed a number of Council Planning staff who were able to provide relevant testimony to the Tribunal. However not one attended the hearing, they just refused. 211 No action was taken by the Tribunal concerning this attitude towards it. 212 Concerning Council’s Statements and Submissions I presented a serious risk to public safety, Tony Wickham declined to identify one instance of behaviour which qualified the claim of a risk of harm, claiming he would be breaching legislation. 213 It is noted I was not afforded any opportunity to press Tony Wickham about his false allegations in any way whatsoever as SM Montgomery intervened and prevented further cross examination, instead taking an additional confidential statement from Tony Wickham. 214 My police record was offered to the Senior Member but he declined to peruse it. 215 I have offered my police record several times since to the Tribunal, which has always been declined. 216 My wife and I have also undertaken a Forensic Risk Assessment in order to assist the Tribunal, however it has declined them. 217 Over the many valid requests for information lodged by my wife and I, Port Stephens Council has referred to Section 14 Table 3 (f) in excess of (270) two hundred and seventy times, that we are aware of. 218 However, we now know these unfounded claims revert back to the agreement initiated and entered into between Tony Wickham and a member of the public, solidified in a false and misleading letter to an Investigating Officer of the IPC, which has since been circulated to a number of NSW agencies including the NSW Office of Local Government, and the judiciary. 16th August 2017219 At this date the parties to the proceedings were awaiting SM Montgomery’s Decision. 220 GIPA training provided to Port Stephens Council by Principal Solicitor Kiri Mattes of the Crown Solicitors’ Office, Council attending staff were instructed by Ms Mattes that “GIPA trumps PIPPA and HRIPA”. 221 This documented acknowledgement of the legislative hierarchy concerning these (3) three Acts is evidence Council staff are fully aware of the seniority of the GIPA Act 2009. 222 A copy of Council’s Senior Right to Information Officer Holly Jamadar’s training note is attached at W. 223 And yet, throughout the remainder of my matter with NCAT concerning the objecting submissions, from the initial hearing in 20th March 2017, to the Appeal Panel Hearing in March and May 2018, and to the finality of the Remittal on 08th December 2018, Port Stephens Council’s Tony Wickham continued to unjustly maintain personal privacy has seniority over the GIPA Act when he knew, by his training from Kiri Mattes of the Crown Solicitors’ Office, that the reverse was true and legal. 224 This is because Tony Wickham had entered into the agreement with a member of the public, he was committed, he had been reminded of it, and he had gone too far to turn back, including making false and misleading statements designed to influence decision makers such as those (4) four presiding Senior Members of the NSW Civil & Administrative Tribunal. 01st May 2018225 During the open session at the end of the day Senior Member’s Durack and Higgins of the Appeal Panel asked Tony Wickham about the objecting submissions. 226 Tony Wickham told the Senior Members (on the recording from approx. the 5hr.06m.40sec mark out of a total 5hr.17m) QUOTE “there are (4) four documents and several authors” UNQUOTE, stating (4) four documents twice. And in this regard Tony Wickham was fully aware he was untruthful to the Tribunal at first instance. 227 Further, during the same day, Senior Member Durack was overheard pressing Tony Wickham about the claim of a serious risk of harm. 228 On the same day Senior Member Durack was overheard stating words to the effect “they (the objectors) haven’t raised an issue of a risk of harm, they just don’t want them to have them (the documents)”, resulting in the decision they were not persuaded there existed any risk so claimed, paragraph 47 of the Appeal Hearing decision 08th September 2018. 24th April 2019229 8.22am, following from SM Hamilton’s remittal decision of 11th March 2019, my wife wrote to Council’s solicitor enquiring about the release of the objecting submissions from the (2) two Council-documented objectors, naming them for clarity. 230 4.34pm, Council’s solicitor Carlo Zoppo informed my wife QUOTE “The Senior Member did not order that we notify the people named in your email,” UNQUOTE, making it now abundantly clear that numerous Council records had been doctored, and that Council was in fact still concealing open access information mandated for release. 231 A copy of that email trail is at attachment X. 01st February 2021232 Again before the NCAT regarding Council’s response to a valid request for open access information mandated for release concerning mandatory Interest Disclosures, Council’s legal team was confronted with Tony Wickham’s letter of 17th March 2015 as evidence of the concocted claim I presented some kind of serious risk to the public should Council documents be released to me. 233 It is noted Council did not reject or deny the letter, nor did Council rely on it at first instance. 234 Instead, it desperately claimed I might commit identify fraud should I have access to the documents, albeit Council protested it was not relying on Section 14 Table 3 (f). 30th April 2021235 Thankfully presiding Member Gracie made it indisputably clear at Paragraph 160 of his decision:“………taking all of the above evidence at its highest, there is not a scintilla of evidence that the "safety or well-being" of any person would or might be affected or impacted if the applicant accessed the disputed information…….” (emphasis added).
236 Copy of Senior Member Gracie’s Decision is attached at Y. 237 Tony Wickham was able to continually do those things outlined above because of his continuous access to Council legal services which supported his collective conflicting roles within Port Stephens Council, being:• Governance Manager• Senior Right to Information Officer• Code of Conduct Coordinator• Complaints Handling Officer• Joint Custodian of Secondary Employment• At one time he also occupied the role of Executive Officer
238 It is due to those roles of absolute seniority that he has no guardian, there is no person checking on what he is doing and how he is doing it. 239 Ensuring he has no guardian and acting to exclude enquiring Councilors about the public’s right to seek administrative reviews in the NCAT, Tony Wickham has warned Councilors not be become involved lest they face a Code of Conduct Report. 240 A copy of Tony Wickham’s email is attached at Z. 241 I endured several years outside of the NCAT arena, and (4) four long years within the NCAT arena, trying to exercise my fundamental rights to access government information which was clearly open access and mandated for release. 242 I now know, as does the Tribunal, Council’s claims I posed some kind of risk of harm to members of the public was deliberately fabricated. 243 It has taken me several years to clear my name, and with due thanks to Senior Member Gracie for his valued perception and solicitor Carlo Zoppo for providing Council’s false and misleading letter, that I am now asking the Tribunal to open the records on this case. 244 It is not possible to accurately quantify the unnecessary costs those actions have drained of Port Stephens Council’s allotment of public money. 245 It is also not possible to accurately quantify the unnecessary costs those actions and in particular those continued deliberate misrepresentations have cost the state of NSW. 246 The Tribunal has the power to revoke an order. I ask with all sincerity that the Orders for Not-for-Publication be revoked in their entirety as a matter of public interest.

Applicant SubmissionsMcEwan v Port Stephens Council (2022) NSWCATAD 148

1 The Applicant respectfully directs the Tribunal to the (then) Attorney General George Brandis’ statement of 27th February 2015: “In a democracy, it is not character assassination to call a public official to account, nor subject their performance to public scrutiny.” 2 In the context of this Miscellaneous Application the public official in this matter is Port Stephens Council’s Governance Manager Tony Wickham and Head of Legal Services Lisa Marshall, both of whom have full knowledge of the facts, matters and circumstances of this matter. Jurisdiction3 The NCAT Act 2013 gives the NSW Civil & Administrative Tribunal its judicial powers to consider this Application, particularly:• Section 38 (6) (a)• Section 49• Section 64 (1) (d) & (3)• Section 71• Any other Section the Tribunal views as relevant to the Application Application4 The Applicant seeks the revoking of the Orders for Not-for-Publication, issued by SM Montgomery in his decision of 08th September 2017, which have been carried through to the Appeal Panel and Remittal decisions of September 2018 and March 2019 respectively.Basis & Understanding of NCAT Act 2013, Sections 49 & 64 5 The Applicant understands the imposition of the Orders was for the purpose of protecting non-disclosed personal information and protecting individuals from a risk of serious harm, harassment or serious intimidation should their personal information be disclosed. 6 The Applicant bases that understanding on Port Stephens Council’s continual reliance primarily on the GIPA Act 2009 Section 14 Table 3 (a) and (f), and secondarily on 3 (b). 7 The Applicant submits there are no personal details to be disclosed as Council has repeatedly done so of its own accord. 8 The Applicant has repeatedly made his police records available to the Tribunal in an effort to challenge Council’s claims and to attest to his good character, however the Tribunal has at all times declined. 9 The Applicant submits it was at all times Port Stephens Council’s intention to ensure false and misleading documents originating from Council were protected from disclosure to the public, which is not the purpose of a Not-for-Publication Order. 10 From February 2020 the Applicant has made a forensic risk assessment available to the Tribunal in a further effort to challenge Council’s claims and to attest to his good character, however the Tribunal has declined. 11 In this regard the Tribunal has formed an opinion about the Applicant’s character, in particular regarding to his presenting a risk of harm, serious harassment or serious intimidation, on the untested continuous allegations and claims by Port Stephens Council’s Senior Right to Information Officer Tony Wickham. 12 It is the Applicant’s contention the risk of harm, serious harassment or serious intimidation has always emanated from Port Stephens Council and remains deliberately so.
13 The Applicant again however makes his police records and forensic risk assessment report available to the Tribunal for perusal and immediate return, as these documents contain sensitive and medical information and will not be either placed on the file or made available to any person or solicitor connected to Port Stephens Council under any circumstances given Council has made its own case of its own accord. 14 Since SM Montgomery’s decision of 08th September 2017 which saw the Orders for Not-for-Publication which were directly connected to Council’s untested continuous allegations and claims the Applicant poses a risk of harm, serious harassment or serious intimidation, the Tribunal has issued a further decision of 30th April 2021. 15 That Decision made it indisputably clear at Paragraph 160: “………taking all of the above evidence at its highest, there is not a scintilla of evidence that the "safety or well-being" of any person would or might be affected or impacted if the applicant accessed the disputed information…..” (emphasis added). 16 Tony Wickham occupies numerous other collective roles within Council in addition to that of Senior Right to Information Officer including:I. Governance ManagerII. Code of Conduct CoordinatorIII. Complaints Handling ManagerIV. Joint Custodian of Secondary EmploymentV. And at times he has also held the title of Executive Officer Integrity Within Local Government Agencies17 As such Tony Wickham is noted as the owner / expert of a number of Council policies, procedures and reporting mechanisms including:I. Access to Information PolicyII. Code of Conduct & Code of Conduct StatementIII. Fraud & Corruption PolicyIV. Formal GIPA Policy & ProcedureV. iPart Report – Consolidation of NSW Councils 18 Such responsibilities places Tony Wickham as Council’s Corporate Policeman, setting standards and ethical protocols in place that apply to all staff including those at the executive level.
19 Access to Information Policy20 As the responsible officer for the Access to Information Policy which sets out the various mechanisms for accessing Council’s records, Tony Wickham is fully aware he has continuously obstructed the Applicant’s legitimate access to open access information mandated for release. 21 In this regard he has ignored Council’s published information pertaining to the GIPA Act 2009. 22 Code of Conduct23 As the responsible officer of the Code of Conduct Tony Wickham is fully aware he did not:• Act fairly, ethically and without bias in the interests of the local community.• Council decision-making should be transparent and decision-makers are to be accountable for decisions and omissions• Act lawfully and honestly, and exercise a reasonable degree of care and diligence in carrying out your functions under the LGA or any other Act• Consider issues consistently, promptly and fairly 24 Tony Wickham did not adhere to the Port Stephens Council Code of Conduct despite policing that Code, regularly attending training and signing the Code of Conduct Statement attached to the Administrative Procedures for the Code of Conduct. 25 Fraud & Corruption Policy26 By making false and leading statements about the Applicant Tony Wickham knew to be untrue, and circulating those statements to numerous governmental decision makers including the judiciary, Tony Wickham ignored Council’s Fraud & Corruption Policy. 27 By making an agreement with a member of the public to conceal and protect open access information, despite policing this policy, Tony Wickham ignored it. 28 By allowing the agreement to conceal and protect open access information which resulted in the production of numerous false Council records including court documents, Tony Wickham further ignored this policy. 29 Formal GIPA Policy & Procedure30 Tony Wickham acted outside of the formal GIPA policy and procedure, affording favouritism to a member of the public to the detriment and damage of others. 31 iPart Report32 Council’s executive document states Council has: “Ability to employ a wider range of skilled staff Council continuously reviews its organisation structure based on outcomes from Sustainability Reviews of service packages across Council. This ensures that we have the right people doing the right things the right way – that is our staff's skill sets are aligned to the functions of Council.” (emphasis added) 33 The actions of Tony Wickham as Council’s Corporate Policeman completely discredit any claim the organisation has the right people doing the right things the right way, unless the organisation is one intent to act outside the law. Submissions: Community Expectations of Integrity34 The Local Government Act 1993, Section 439 (1) also makes clear: 35 Conduct of councillors, staff, delegates and administrators 439 Conduct of councillors, staff, delegates and administrators (1) Every councillor, member of staff of a council and delegate of a council must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act.
The words “must act honestly” are very clear, compelling each and every Council employee to behave in a specific manner. The reference to acting honestly is not merely implied, it is a direction under the law.
The word “must” is not defined in the Code of Conduct but has been defined such that:
Merriam-Webster Dictionary:- Be commanded or requested to- Be obliged to- Be required by law, custom, or moral conscience
Lexico / Oxford Dictionary:- Be obliged to- Should – expressing necessity The words “any other Act” are understood to be inclusive of the Local Government Act 1993, the Government Information (Public Access) Act 2009 (GIPA), the NSW Civil & Administrative Tribunal Act 2013 (NCAT), the Environmental Planning & Assessment Act 1979 (EP&A). 36 ICAC v Karkowski33 “His conduct strikes at the very heart of public confidence in proper and transparent process. It creates or reinforces the public perspective that the operations and decision-making exercises of Councils and thus government in general many not be conducted in an entirely honest and professional manner.
39 “Substitute "officer of local government” for police officer and view such conduct from the perspective of Sections 439-440 and the Code of Conduct set out in Schedule 6A of the Local Government Act 1993 and the community will readily understand that they are entitled to expect the highest standards of those employed on their behalf.” 37 Council’s Tony Wickham has not acted with the highest standards as expected since the onset of this matter, including prior to the commencement of NCAT proceedings and thereafter.
38 Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 39 56 “ ................They are not to be regarded as unsophisticated members of the community with limited literacy skills and a limited understanding of the statutory regimes in which they are operating.............” 40 Tony Wickham is qualified and has obtained the necessary skills and training to understand the statutory regimes applicable when responding to requests for Council records and when conducting Council legal business. Submissions: Acting in Good Faith41 Thompson v Randwick Municipal Council (1950) 81 CLR 87A public authority exercising statutory powers “must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first.” 42 Tony Wickham has indisputably exceeded and abused his powers, and has acted outside of his authority. As such he has not acted in good faith, nor reasonably. Submissions: Public Interest43 Director of Public Prosecutions v Smith(1991) 1 VR 63“Public interest' embraces standards acknowledged to be 'for the good order of society and for the well being of its members” 44 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657“The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the [decision-maker's] consideration” 45 Director of Public Prosecutions v Smith“The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals” 46 Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473, at p. 480, per Barwick CJ“The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals”
47 The Applicant submits the making of the agreement with a member of the public to conceal and protect open access information mandated for release is evidence Tony Wickham has at no time acted in the public interest. 48 The Applicant also submits it is in the public interest to revoke the Order for Not-for-Publication in its entirety, bearing in mind the Applicant is also a member of the public who has direct interest in this matter and whom the Tribunal’s decisions have directed affected. Submission: Apprehension of Bias49 The Applicant submits the making of the agreement with a member of the public to conceal open access information mandated for release, a conscious decision that was thereafter reflected throughout various Council records and Court documents, is indisputable evidence Tony Wickham was at all times post-agreement acting with bias. 50 The Queen v Watson (92) (1976) 136 CLR:51 262 – 263 "his (i.e. Lord Hewart's) statement of principle, which was recently reaffirmed in this Court in Stollery v. Greyhound Racing Control Board ((93) (1972) 128 CLR at 518-519.) does go to the heart of the matter. It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision. To repeat the words of Lord Denning M.R. which have already been cited, 'Justice must be rooted in confidence: and confidence is destroyed when rightminded people go away thinking: "The judge was biased."'" 52 Webb & Hay v The Queen 1994 181 CLR 41, at 3:53 When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case ((3) Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554; Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR 248 at 261-262,264, 267; Re Judge Leckie; Ex parte Felman (1977) 52 ALJR 155 at 158; 18 ALR 93 at 97-98; Re Shaw; Ex parte Shaw (1980) 55 ALJR 12 at 14, 16; 32 ALR 47 at 50-51, 54; Livesey v. New South Wales Bar Association (1983) 151 CLR 288at 293-294, 300; Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 349, 351, 359, 368 and 371; Vakauta v. Kelly (1989) 167 CLR 568 at 575, 584; 54 Grassby v. The Queen (1989) 168 CLR 1 at 20.).The Court has applied the same test to a Commissioner of the Australian Industrial Relations Commission ((4) Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd. (1994) 68 ALJR 179 at 182; 119 ALR 206 at 210.) and to a member of the Australian Broadcasting Tribunal ((5) Laws v. Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87, 92,102.). The Court has specifically rejected the real likelihood of bias test ((6) Watson (1976) 136 CLR at 261-262.).
The principle behind the reasonable apprehension or suspicion test is that it is of "fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done" ((7) R. v. Sussex Justices; Ex parte McCarthy (1924) 1 KB 256 at 259 per Lord Hewart CJ; Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR at 351-352.).
Although the role of the juror is not the same as that of the judge, a commissioner or a member of a quasi-judicial tribunal, we do not think that the difference between the role of the juror and the role of those persons warrants any different test for alleged bias. 55 Ebner v The Official Trustee in Bankruptcy 2000 HCA 63, at 6 & 7:56 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide13. That principle gives effect to the requirement that justice should both be done and be seen to be done14, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. 57 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. 58 Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
59 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, at 312:60 First the Full Court defined bias. They said that a "closed mind" would constitute bias, if that mind were not open to persuasion otherwise: or that there has been a prejudgment of an aspect of the case. Their Honours then cited several passages in the judgments of Spender J and R D Nicholson J in Jia165. 61 Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council No. 2 2008 NSWLEC 132, at 9:62 The test is the same whatever the circumstances relied upon for the application, namely: Would a fair-minded lay observer, acquainted with the relevant facts, reasonably apprehend that it was possible that I would not bring an independent mind to the determination of this appeal? 63 Antoun v The Queen 2006 HCA 2, there is repetition of extensive dialogue between His Honor and a legal representative, which makes clear His Honor was of the view submissions would not succeed, before he had actually heard them. 64 Antoun v The Queen 2006 HCA 2 stands out because from at least March / April 2012 Tony Wickham did not judge the Applicant’s valid requests for open access information on their own merits, instead he processed them with the intention of upholding the agreement between he and a member of the public. 65 This is affirmed by Tony Wickham’s disingenuous action of 16th May 2012 when he refused to provide access to the objecting submissions to the DA 483 of 2011 Informally, and provided the Applicant a Formal Access Application form suggesting he could apply in that format. Yet Council would thereafter refuse to accept a valid Formal Access Application in February 2015. 66 The Applicant further submits Tony Wickham acted with bias when he accepted the role of Re-Determining Officer during NCAT proceedings, knowing he remained in a conflict of interest because of his personal interest in the outcome of those Re-Determinations. Submissions: Equity & Unconscionable Conduct67 The Applicant submits that at all times with the agreement in place between Tony Wickham and a member of the public, and withholding that information from the Applicant, Council at all times maintained a deliberate advantage over the Applicant, denying him equity under the GIPA Act 2009 initially, and thereafter the NCAT Act 2013 and ADR Act 1997. 68 Commercial Bank of Australia v Amadio (1983) 151 CLR 447; (1983) HCA 14(1) ………”unconscionable conduct” is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage……. (12) the jurisdiction of courts of equity to relieve against unconscionable dealing ……….. is long established as extending generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or “unconscientious” that he procure, or accept, the weaker party’s assent to the impugned transaction in the circumstances in which he procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable……. (22) ………. if A having actual knowledge that B occupies a situation of special disadvantage in relation to an intended transaction, so that B cannot make a judgment as to what is in his own interests, takes unfair advantage of his (A’s) superior bargaining power or position by entering into that transaction, his conduct in so doing is unconscionable. And if, instead of having actual knowledge of that situation, A is aware of the possibility that that situation may exist or is aware of facts that would raise that possibility in the mind of any reasonable person, the result will be the same. Submissions: Ratification69 Perpetual Limited v Rocco Costa & Santina Costa (2007) NSWSC 1093, at 57:70 “In order that a person may be held to have ratified an act done without his authority, it is necessary that, at the time of the ratification, he should have full knowledge of all the material circumstances in which the act was done, unless he intended to ratify the act and take the risk whatever the circumstances may have been.” 71 The Applicant submits Tony Wickham knowingly ratified the GIPA Act 2009 by initiating and entering into an agreement with a member of the public to conceal and protect open access information, resulting in false Council records and Court documents, acting without delegated authority to do so, intending to ratify the act and take the risk of being discovered. 72 The Applicant further submits that by initiating and entering into the agreement with the member of the public Tony Wickham intended to portray he had the delegated authority to do so. Submissions: Revoking Orders - Not-for-Publication73 There is some history concerning the Tribunal’s power to vary or revoke orders from time to time. 74 Z v University of A, Dr D & B (No 4) [2002] NSWADT 14:29 “Should circumstances change warranting the lifting of the suppression order, we may need to reconsider our current position.” 75 The Applicant submits the circumstances warranting the Not-for-Publication Order have changed as the Tribunal is now properly informed, in particular the claim of a risk of harm, serious harassment or serious intimidation has been effectively disqualified by the Tribunal’s Decision of 30th April 2021. Submissions: Principle of Open Justice 76 There is a long history concerning the topic of the principle of open justice. 77 Walton v Momot [ 1997] NSWCA 334“The general principle provided for in s 46 (3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner.
This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. It could decide under s 46 (3) that it will sit in private, or it could make a suppression order under cl 6 (1) in the Third Schedule.
This of course reflects the general principle that the administration of justice under our system is carried on in public. This has been repeatedly emphasised by the courts, most recently, for relevant purposes, in John Fairfax & Sons Limited v The Police Tribunal (1986) 5 NSWLR at 465, and by Samuels JA in Bowen-James v Delegate of Director-General Department of Health (40432/91 unreported 29/7/91). The Chairman therefore did not misdirect himself when he said that special or exceptional circumstances had to be established before a suppression order could properly be made.” 78 The Applicant submits that both Council’s Tony Wickham and its solicitor Lisa Marshall acted to impress upon the Tribunal something special, exceptional, or out of the ordinary had occurred warranting the Order for Not-for-Publication 79 The Applicant refers the Tribunal to his Affidavit which sets out the manner in which Port Stephens Council put the evidence of a risk of harm, serious harassment or serious intimidation to the Tribunal which resulted in the Order for Not-for-Publication. 80 That evidence is now shown to be false and misleading due to Council’s Senior Right to Information Officer Tony Wickham acting at all times with a conflict of interest, concealing his personal involvement in the access to information process, involvement that saw him committed to a pre-determined outcome. As such the access to information process was totally compromised. 81 Health Care Complaints Commission v EDE [2019] NSWCATOD 18428 “the overarching principle of open justice is only displaced inspecial or exceptional circumstances” 82 The Applicant submits the Tribunal did not identify any special or exceptional circumstances at the time of making the orders, save accepting Council’s submissions its evidence was truthful when it was not. 83 Bellamy v Bellamy [2018] NSWSC 53484 30 “Section s 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal”. (emphasis added) 85 The Applicant submits there were no exceptional circumstances, and the imposition of the order resulted in depriving him of any opportunity to make full submissions on the issues to be decided. The Senior Member stopped cross-examination of Tony Wickham, took a secondary confidential statement from Tony Wickham, returning to the Hearing and refusing to allow cross-examination on the issue of a risk of harm further. 86 The Applicant also submits that the Tribunal erred in law in failing to identify and or in failing to consider adequately or at all whether the circumstances were extraordinary and / or satisfied the statutory test. 87 Further the Applicant asserts the Tribunal erred in law by inferring that the test of sufficiently special justified the exclusion of the principles of natural justice and the open court principle. Closing88 The Tribunal is asked to revoke the entirety of the Order for Not-for-Publication firstly on the basis that the Senior Member inferred throughout his decision of 08th September 2017 the Applicant posed a risk of harm, or serious harassment or serious intimidation should the documentation provided by Council marked “confidential” be made public. 89 In contrast to that is Senior Member Perrignon’s clear statement on 14th October 2016 which disclosed he had perused the “confidential” documents and determined there was nothing of a confidential nature, suggesting Council release the information and thereby terminating the proceedings. 90 Council chose not to. 91 Council chose not to because of the agreement that was in place between Tony Wickham and a member of the public, which was not disclosed to Senior Member Montgomery. 92 Under those circumstances SM Montgomery understandably perhaps believed the Not-for-Publication Order was necessary. 93 The Tribunal is also referred to the later matter which saw SM Gracie preside, where Tony Wickham’s false and misleading letter was placed squarely on the “hearing table”, where Council did not approach or make any comment concerning it, instead stating clearly to the Tribunal and gallery “Council is not claiming Section 14 Table 3 (f).” 94 It is reasonable to expect had the Tribunal facilitated the Applicant an opportunity to test Council’s evidence at Hearing on 20th March 2017 Council would have failed in securing the Not-for-Publication Order. 95 It is noted SM Montgomery’s Order was also applied to the Applicant’s wife Telina Webb, noting that Council had not provided any such “confidential” documents pertaining to her Applications for Review. 96 It was an agreement between Council’s solicitor and the Senior Member on 20th March 2017, which saw the term “the evidence in one is the evidence in all” applied to all (5) five Requests for Review on that day. 97 Both the Applicant and his wife were not questioned about the claim they posed a risk, not by Council’s solicitor and not by Senior Member Montgomery. 98 In this regard it is difficult to understand how Senior Member Montgomery came to the scathing conclusions he did, without questioning the Applicant and his wife, and without considering their police records, until consideration is given to the false and misleading claims put to the Tribunal confidentially by Port Stephens Council. 99 The Applicant submits he has provided indisputable evidence there exists no risk of harm he would cause any individual the harm claimed. 100 The Applicant reiterates his request the Order for Not-for-Publication be revoked in its entirety as a matter of procedural fairness and in the public interest.