NSW Civil & Administrative Tribunal Fails to Adequately Respond to the Needs of its Users
and Ensure Equity Between the Parties, 15.02.2023
On Friday 10th February 2023 the NSW Civil & Administrative Tribunal (NCAT) issued Orders in relation to a review of Conduct under Section 53 of the Personal Information & Privacy Protection Act (PIPP Act) 1998, Orders which have failed to equally and adequately respond to the needs of one of the parties.
A review under the PIPP Act Section 53 focuses on the conduct of particular agency personnel in the management and use of an individual's personal information.
The case of EFB v Commissioner of Police, NSW Police Force currently sees a self-represented, nonlegal practitioner facing an opponent represented by the NSW Crown Solicitor’s office.
The public agrees such adversarial circumstances easily qualifies as a lacking in equity between the parties, however, with “EFB” currently residing in Tasmania it presents additional hurdles for one who does not have access to legal resources.
In response to an application to adjourn the listing date for this case, on Friday 10th February at 2pm the NCAT advised “EFB” to seek the consent of the respondent, Police, to do so. However, the NCAT further stipulated that any supporting documentation and commentary about the application to adjourn should be provided in writing to the NCAT by Monday 13th February 2023, 12.00pm.
The Orders further advised the issue of the application to adjourn the listing date was one that could be determined by NCAT ‘on the papers’, meaning without a Hearing and in NCAT Chambers.
Both parties were instructed to also file submissions concerning any objection or consent to a determination on the papers, by the same deadline.
“Speaking with ‘EFB’ who was clearly distressed about the Orders received, it became evident that Monday 13th February 2023 was a Public Holiday in Tasmania. NCAT’s expectations a self-represented, nonlegal practitioner as party to proceedings should have no difficulty in accessing any locally based Justice of the Peace service on a public holiday, or over a long weekend, is indicative of the disinterest in any equality between parties, particularly where one is legally represented and richly-resourced with access to the Office of the Crown Solicitor.
Unfortunately, this is nothing new. NCAT file repositories are overflowing with cases such as this, where there is no or little allowance for the difficulties the general public regularly face when calling NSW government agencies to account,” stated NSW Freedom of Information’s Telina Webb.
“This individual, “EFB”, is also expected to compile detailed documentation, gather supporting evidence, and articulate submissions without any resources whatsoever, under a totally unreasonable timeframe. What’s even more concerning is the fact that “EFB’s” inability to comply with the Orders could result in contempt of the NCAT, or the dismissal of the application to adjourn the listing date. Either way it is also a possibility any documentation originating from the Police’ legal team of Crown Solicitors will be accepted and given full consideration on its own should it meet the filing deadline, which is completely unfair,” commented Ms Webb.
The public expects far more from the NSW Civil & Administrative Tribunal (NCAT), particularly when it comes to the issue of when and how it responds to the needs of its users. Those users include the general public, most of which sit at the bar table on their own facing powerful, well-equipped, intimidating adversaries. Legal representatives are not required to obtain the NCAT's approval to act for their clients, however any person who is not a solicitor must obtain NCAT's approval for a McKenzie Friend or Advocate to assist them.
“EFB” is confirmed to have no resources, is a nonlegal practitioner and has no legal representation.
In recent separate proceedings before the NCAT, Ms Kirri Mattes of the Crown Solicitor’s Office (CSO) informed the NCAT it was the role of the Office of the NSW Information & Privacy Commissioner to educate the public about their legislated rights and obligations. Ms Mattes also made clear that the Crown Solicitor’s Office makes its legislative training and education fully accessible to NSW government agencies, training she conceded is completely withheld from members of the public.
Ms Mattes made her disclosures while defending the withholding of CSO educational training manuals and materials which had been requested by Telina Webb, materials the CSO provides to any NSW government agency for a fee.
When consideration is given to available resources of an agency such as Police, the access to training materials from experienced solicitors the like of Ms Kirri Mattes, and the ready access to large and powerful legal teams at the expense of the public purse, it is easy to form the view that the public enters the NCAT arena as a lamb to the slaughter, and as such should not hope to have any success under those David against Goliath circumstances.
NCAT has endorsed the obstruction of the NSW Crown Solicitor’s training materials from the general public, a decision which is currently under Appeal.
It is another example of the NCAT’s failure to adequately, if not remotely, respond to the needs of its users, all users, not just those paying premium club membership with public monies.
These latest NCAT Orders regrettably reveal the absence of any duty of care for those who approach the NCAT from a position of total disadvantage, particularly when NCAT advertises parties to proceedings can self-represent.
The case of EFB v Commissioner of Police, NSW Police Force currently sees a self-represented, nonlegal practitioner facing an opponent represented by the NSW Crown Solicitor’s office.
The public agrees such adversarial circumstances easily qualifies as a lacking in equity between the parties, however, with “EFB” currently residing in Tasmania it presents additional hurdles for one who does not have access to legal resources.
In response to an application to adjourn the listing date for this case, on Friday 10th February at 2pm the NCAT advised “EFB” to seek the consent of the respondent, Police, to do so. However, the NCAT further stipulated that any supporting documentation and commentary about the application to adjourn should be provided in writing to the NCAT by Monday 13th February 2023, 12.00pm.
The Orders further advised the issue of the application to adjourn the listing date was one that could be determined by NCAT ‘on the papers’, meaning without a Hearing and in NCAT Chambers.
Both parties were instructed to also file submissions concerning any objection or consent to a determination on the papers, by the same deadline.
“Speaking with ‘EFB’ who was clearly distressed about the Orders received, it became evident that Monday 13th February 2023 was a Public Holiday in Tasmania. NCAT’s expectations a self-represented, nonlegal practitioner as party to proceedings should have no difficulty in accessing any locally based Justice of the Peace service on a public holiday, or over a long weekend, is indicative of the disinterest in any equality between parties, particularly where one is legally represented and richly-resourced with access to the Office of the Crown Solicitor.
Unfortunately, this is nothing new. NCAT file repositories are overflowing with cases such as this, where there is no or little allowance for the difficulties the general public regularly face when calling NSW government agencies to account,” stated NSW Freedom of Information’s Telina Webb.
“This individual, “EFB”, is also expected to compile detailed documentation, gather supporting evidence, and articulate submissions without any resources whatsoever, under a totally unreasonable timeframe. What’s even more concerning is the fact that “EFB’s” inability to comply with the Orders could result in contempt of the NCAT, or the dismissal of the application to adjourn the listing date. Either way it is also a possibility any documentation originating from the Police’ legal team of Crown Solicitors will be accepted and given full consideration on its own should it meet the filing deadline, which is completely unfair,” commented Ms Webb.
The public expects far more from the NSW Civil & Administrative Tribunal (NCAT), particularly when it comes to the issue of when and how it responds to the needs of its users. Those users include the general public, most of which sit at the bar table on their own facing powerful, well-equipped, intimidating adversaries. Legal representatives are not required to obtain the NCAT's approval to act for their clients, however any person who is not a solicitor must obtain NCAT's approval for a McKenzie Friend or Advocate to assist them.
“EFB” is confirmed to have no resources, is a nonlegal practitioner and has no legal representation.
In recent separate proceedings before the NCAT, Ms Kirri Mattes of the Crown Solicitor’s Office (CSO) informed the NCAT it was the role of the Office of the NSW Information & Privacy Commissioner to educate the public about their legislated rights and obligations. Ms Mattes also made clear that the Crown Solicitor’s Office makes its legislative training and education fully accessible to NSW government agencies, training she conceded is completely withheld from members of the public.
Ms Mattes made her disclosures while defending the withholding of CSO educational training manuals and materials which had been requested by Telina Webb, materials the CSO provides to any NSW government agency for a fee.
When consideration is given to available resources of an agency such as Police, the access to training materials from experienced solicitors the like of Ms Kirri Mattes, and the ready access to large and powerful legal teams at the expense of the public purse, it is easy to form the view that the public enters the NCAT arena as a lamb to the slaughter, and as such should not hope to have any success under those David against Goliath circumstances.
NCAT has endorsed the obstruction of the NSW Crown Solicitor’s training materials from the general public, a decision which is currently under Appeal.
It is another example of the NCAT’s failure to adequately, if not remotely, respond to the needs of its users, all users, not just those paying premium club membership with public monies.
These latest NCAT Orders regrettably reveal the absence of any duty of care for those who approach the NCAT from a position of total disadvantage, particularly when NCAT advertises parties to proceedings can self-represent.