Cash-Strapped Local Council Seeking Special Rate Rise In Excess Of 30% Indignantly Claims
Engaging Costly External Legal Service Providers Is Its Right, 09th March 2023
Port Stephens Council is confirmed to have lodged an Application seeking approval for a hefty Rate Rise in excess of 30% over the next several years.
Council has applied for approval from the Independent Pricing & Regulatory Tribunal, iPART. A number of residents have expressed concern the Application was not made public knowledge at first instance, with the impression Council may have acted to keep the document out of the public’s reach in order to avoid objecting submission opportunities.
iPART has received a substantial number of objections to the application, from local residents and interested parties alike including NSW Freedom of Information.
NSW Freedom of Information has been provided a copy of a communication from Council’s Finance Officer – Special Rate Rise Project Gabriella Tamsett, disclosing to a concerned Port Stephens Shire resident that Council expects by its own calculations a financial short-fall in the vicinity of $85m over the next (10) ten years, which it fully intends to pass onto rate payers.
Concerned residents of Port Stephens have petitioned iPART to reject Council’s Application, many of whom refer to their personal knowledge of excessive and unwarranted expenditure believed to be avoidable, but spent due to Council's financial maladministration. The Objecting Submissions will be published by iPART by end of March 2023 unless objectors specifically request anonymity.
NSW Freedom of Information Advocate Telina Webb has confirmed her Objecting Submission, on behalf of the residents of Port Stephens Shire, consenting to full disclosure.
Still on the issue of Council expenditure, in a case that is running parallel to Council’s iPART Application, Port Stephens Council continues to make its case for costs associated with a matter brought by a member of the public to the NSW Civil & Administrative Tribunal, NCAT.
That matter involves a Miscellaneous Application on the part of Mr Paul McEwan, a former Port Stephens resident, seeking the revoking of orders by the tribunal dating back to March 2017.
Mr McEwan had initially brought an administrative review to the NCAT under the Government Information (Public Access) Act 2009, GIPA, which sought legitimate access to Port Stephens Council development application records, specifically Objecting Submissions, which have at all times been classified as open access information mandated for release free of charge. Council secured several confidential sessions with the tribunal during the all-day hearing in March 2017, leaving Mr McEwan facing false accusations he presented a risk of serious harm to members of the public should he be provided those records.
The claim of the risk of serious harm is now evidenced to have originated from Council’s Governance Manager Tony Leslie Wickham, when in March / April 2012 he is documented to have entered into an unlawful agreement with a member of the public to conceal and protect Objecting Submissions on the false premise a risk of harm existed when it did not.
The confidential sessions with the tribunal enabled Tony Wickham to convince the tribunal, unchallenged, that a risk of harm existed from Mr McEwan. The tribunal prevented the cross examination of Tony Wickham on this critical issue leaving the claims completely untested.
That hearing was followed by a formal decision inclusive of an order protecting the evidence given by Tony Wickham, and obstructing Mr McEwan’s legitimate access to the Objecting Submissions, documents which pertained to his own development application while he was a Port Stephens Shire resident.
On first reading the NCAT's decision referring to a serious risk of harm, Mr McEwan did not understand where the allegations had come from, always maintaining his innocence, stating “When I read Tony Wickham’s email suggesting to a member of the public to use a claim of a risk of harm to shield Council records, I just couldn’t believe it, especially as he is the Council’s Governance Manager. Mr Wickham also stated Council would address any enquiries from the Information Commissioner, which resulted in Mr Wickham writing a false and misleading letter stating apprehended violence orders had been issued against my wife and I, that we presented a serious risk to public safety, and that police had been called to our neighbourhood due to disturbances involving us. No such action has ever been taken against either my wife or I, and we have never acted in the manner Mr Wickham claimed. However I now understand why the NCAT issued the decision it did at that time.”
Council records would show it had falsely claimed a risk of harm a total of (270) two hundred and seventy times, before Mr McEwan finally cleared his name with NCAT stating in mid-2021 “there is not a scintilla of evidence Mr McEwan posed the risk claimed by Council.”
Mr McEwan filed his Miscellaneous Application seeking the revoking of the tribunal’s orders, losing his case, with costs against him for the external legal service contractors utilised by Council for the purpose.
As part of the resultant Costs Assessment sought by Council, Council’s document dated 09th March 2023 states “The Costs Applicant (Council) was entitled to legal representation……….”
Regrettably, there was no reference within the same Council document addressing the public’s right to expect good stewardship of the public monies entrusted to it.
Port Stephens Council has numerous in-house solicitors qualified and accredited to undertake the most fundamental of court work which sits at the bottom of the judicial ladder, the NCAT, including Council’s Head of Legal Services Lisa Marshall, Solicitor Stephanie Pozniak, and Council’s legally trained Governance Officer Holly Jamadar. Council’s Governance Manager Tony Wickham has also spoken for Council in previous NCAT proceedings and as such is evidenced to have some capacity to represent Council under the most straightforward of circumstances.
Telina Webb has commented “These duties, NCAT representative duties, are part of the day-to-day responsibilities of Council legal and governance staff. There is no need to continually waste scarce public monies when Council is suitably staffed and is flush with rich resources including having direct access to exclusive NCAT training provided by the Office of the NSW Crown Solicitor.”
“Mr McEwan was at all times self-represented, not legally trained, and not legally qualified and yet Council has no hesitation in engaging legal teams at times inclusive of barristers which has cost hundreds of thousands of dollars, when there is absolutely no need to do so,” Ms Webb added.
“The fact Council has the arrogance to openly state it has the right to engage such contractors, with apparently no consideration whatsoever of the public purse entrusted to it, and when it is public knowledge it is scrounging for funds, exemplifies Council’s contempt for its community. What the public must also bear in mind is, this latest engagement which has led to a Costs Assessment via the NSW Supreme Court, has disclosed Council utilised the particular law firm absent of any Costs Agreement, and without undertaking any Competitive Legal Services Tendering process. Any legal services arising without a Costs Agreement should be very concerning to the community, and the individual(s) approving such absence of protocol should be interrogated. The Competitive Legal Services Tendering process facilitates competing law firms’ ability to have equal access to law service engagements, and it also ensures Council staff provide its own estimates of costs should Council staff undertake the work directly. This bypassing of established procurement and contractual processes is evidence of Council’s financial recklessness, maladministration, and total disregard for the community.”
Ms Webb’s Objecting Submission to iPART has recommended an independent forensic accounting investigation be undertaken as part of its consideration process of Port Stephens Council’s Application for rate rise.
Contact: Tony Wickham, 0408 497 649 Lisa Marshall, 0408 978 884
Council has applied for approval from the Independent Pricing & Regulatory Tribunal, iPART. A number of residents have expressed concern the Application was not made public knowledge at first instance, with the impression Council may have acted to keep the document out of the public’s reach in order to avoid objecting submission opportunities.
iPART has received a substantial number of objections to the application, from local residents and interested parties alike including NSW Freedom of Information.
NSW Freedom of Information has been provided a copy of a communication from Council’s Finance Officer – Special Rate Rise Project Gabriella Tamsett, disclosing to a concerned Port Stephens Shire resident that Council expects by its own calculations a financial short-fall in the vicinity of $85m over the next (10) ten years, which it fully intends to pass onto rate payers.
Concerned residents of Port Stephens have petitioned iPART to reject Council’s Application, many of whom refer to their personal knowledge of excessive and unwarranted expenditure believed to be avoidable, but spent due to Council's financial maladministration. The Objecting Submissions will be published by iPART by end of March 2023 unless objectors specifically request anonymity.
NSW Freedom of Information Advocate Telina Webb has confirmed her Objecting Submission, on behalf of the residents of Port Stephens Shire, consenting to full disclosure.
Still on the issue of Council expenditure, in a case that is running parallel to Council’s iPART Application, Port Stephens Council continues to make its case for costs associated with a matter brought by a member of the public to the NSW Civil & Administrative Tribunal, NCAT.
That matter involves a Miscellaneous Application on the part of Mr Paul McEwan, a former Port Stephens resident, seeking the revoking of orders by the tribunal dating back to March 2017.
Mr McEwan had initially brought an administrative review to the NCAT under the Government Information (Public Access) Act 2009, GIPA, which sought legitimate access to Port Stephens Council development application records, specifically Objecting Submissions, which have at all times been classified as open access information mandated for release free of charge. Council secured several confidential sessions with the tribunal during the all-day hearing in March 2017, leaving Mr McEwan facing false accusations he presented a risk of serious harm to members of the public should he be provided those records.
The claim of the risk of serious harm is now evidenced to have originated from Council’s Governance Manager Tony Leslie Wickham, when in March / April 2012 he is documented to have entered into an unlawful agreement with a member of the public to conceal and protect Objecting Submissions on the false premise a risk of harm existed when it did not.
The confidential sessions with the tribunal enabled Tony Wickham to convince the tribunal, unchallenged, that a risk of harm existed from Mr McEwan. The tribunal prevented the cross examination of Tony Wickham on this critical issue leaving the claims completely untested.
That hearing was followed by a formal decision inclusive of an order protecting the evidence given by Tony Wickham, and obstructing Mr McEwan’s legitimate access to the Objecting Submissions, documents which pertained to his own development application while he was a Port Stephens Shire resident.
On first reading the NCAT's decision referring to a serious risk of harm, Mr McEwan did not understand where the allegations had come from, always maintaining his innocence, stating “When I read Tony Wickham’s email suggesting to a member of the public to use a claim of a risk of harm to shield Council records, I just couldn’t believe it, especially as he is the Council’s Governance Manager. Mr Wickham also stated Council would address any enquiries from the Information Commissioner, which resulted in Mr Wickham writing a false and misleading letter stating apprehended violence orders had been issued against my wife and I, that we presented a serious risk to public safety, and that police had been called to our neighbourhood due to disturbances involving us. No such action has ever been taken against either my wife or I, and we have never acted in the manner Mr Wickham claimed. However I now understand why the NCAT issued the decision it did at that time.”
Council records would show it had falsely claimed a risk of harm a total of (270) two hundred and seventy times, before Mr McEwan finally cleared his name with NCAT stating in mid-2021 “there is not a scintilla of evidence Mr McEwan posed the risk claimed by Council.”
Mr McEwan filed his Miscellaneous Application seeking the revoking of the tribunal’s orders, losing his case, with costs against him for the external legal service contractors utilised by Council for the purpose.
As part of the resultant Costs Assessment sought by Council, Council’s document dated 09th March 2023 states “The Costs Applicant (Council) was entitled to legal representation……….”
Regrettably, there was no reference within the same Council document addressing the public’s right to expect good stewardship of the public monies entrusted to it.
Port Stephens Council has numerous in-house solicitors qualified and accredited to undertake the most fundamental of court work which sits at the bottom of the judicial ladder, the NCAT, including Council’s Head of Legal Services Lisa Marshall, Solicitor Stephanie Pozniak, and Council’s legally trained Governance Officer Holly Jamadar. Council’s Governance Manager Tony Wickham has also spoken for Council in previous NCAT proceedings and as such is evidenced to have some capacity to represent Council under the most straightforward of circumstances.
Telina Webb has commented “These duties, NCAT representative duties, are part of the day-to-day responsibilities of Council legal and governance staff. There is no need to continually waste scarce public monies when Council is suitably staffed and is flush with rich resources including having direct access to exclusive NCAT training provided by the Office of the NSW Crown Solicitor.”
“Mr McEwan was at all times self-represented, not legally trained, and not legally qualified and yet Council has no hesitation in engaging legal teams at times inclusive of barristers which has cost hundreds of thousands of dollars, when there is absolutely no need to do so,” Ms Webb added.
“The fact Council has the arrogance to openly state it has the right to engage such contractors, with apparently no consideration whatsoever of the public purse entrusted to it, and when it is public knowledge it is scrounging for funds, exemplifies Council’s contempt for its community. What the public must also bear in mind is, this latest engagement which has led to a Costs Assessment via the NSW Supreme Court, has disclosed Council utilised the particular law firm absent of any Costs Agreement, and without undertaking any Competitive Legal Services Tendering process. Any legal services arising without a Costs Agreement should be very concerning to the community, and the individual(s) approving such absence of protocol should be interrogated. The Competitive Legal Services Tendering process facilitates competing law firms’ ability to have equal access to law service engagements, and it also ensures Council staff provide its own estimates of costs should Council staff undertake the work directly. This bypassing of established procurement and contractual processes is evidence of Council’s financial recklessness, maladministration, and total disregard for the community.”
Ms Webb’s Objecting Submission to iPART has recommended an independent forensic accounting investigation be undertaken as part of its consideration process of Port Stephens Council’s Application for rate rise.
Contact: Tony Wickham, 0408 497 649 Lisa Marshall, 0408 978 884