NSW Civil & Administrative Tribunal Reluctent to Discuss Implications of Government Sector Employee Legislation
Concerning Staff Obligations to Comply with Mandated Code of Conduct, 18.02.2023
Documents recently viewed by NSW Freedom of Information and shared with the public disclose the ongoing difficulties experienced by members of the public interacting with the NSW Civil & Administrative Tribunal (NCAT), difficulties which are additional to those that often present in the midst of Hearings.
Whilst there has been much discussion and reference within the NCAT arena to caselaw and agency misconduct issues in relation to the Government Information (Public Access) Act 2009 (GIPA) and NSW Civil & Administrative Tribunal Act 2013 (NCAT), this time the difficulties are identified within the Government Sector Employment Act 2013 (GSE Act). Such difficulties reveal the public’s inability to rely upon mandated Codes of Conduct within the legislation. The GSE Act and Code of Conduct sets out the expectations of staff employed by this branch of the NSW Judiciary inclusive of Registry Staff.
Numerous correspondence between a member of the public and the NCAT over a long period of time show for the most part questions concerning the NCAT’s application and staff adherence to the GSE Act and specifically the Code of Ethical Conduct remain completely unanswered. The Code, which emanates from the NSW Dept of Communities & Justice, assures its readers there is a fundamental expectation all staff will conduct themselves appropriately, and importantly communicates that all staff are aware of what is required of them. The Code is not elusive, it is readily available to the general public, and as such the public does rely on it. The Code also informs of its methodology for any non-compliance with it. However, what it doesn’t say is that it’s practically impossible to call any staff to account for breaches.
Mr Peter Zonnevylle was interviewed by NSW Freedom of Information, sharing the documented breadth of his inquiries into the GSE Act, confirming he has kept accurate records where reference has been made to senior staff at NCAT including Tribunal Members. Members and Registry staff are alleged to have breached the Code of Conduct regularly and with total disregard to the Code when highlighted. NCAT has also been directed to the GSE Act where it brackets proceedings, directly with presiding Members with no action or acknowledgement whatsoever, where Members regularly state words to the effect “we’re here to review your application, not review agency conduct”. In most cases the conduct referred to has occurred in connection with the exercise of NSW government administrative functions, in the midst of NCAT proceedings, such as requests to access government information under the GIPA Act.
In stark contrast to the realisation NCAT readily does takes into account the so-called conduct of the public opposing NSW Government Agencies, is the standard operating procedure of NCAT to remain steadfastly disinterested and disconnected to any Agency personnel misconduct. In fact, NCAT accepts the so-called conduct of the public as personal factors of consideration when drawing conclusions and making its decisions, seeing NCAT often itemising such conduct in caselaw printed in its forever-text. The public are often left feeling the NCAT is unjust, biased, prejudicial, and blatantly favours NSW Government Agency personnel as a result, leaving them feeling unnecessarily victimised. Such were the cases of McEwan and Webb v Port Stephens Council in 2017, where the Tribunal’s Mr Montgomery accepted the untested ‘evidence’ of Council's Governance Manager Tony Wickham, and worse denied McEwan and Webb the procedural right to cross-exam Wickham on his claims.
“It is so regrettable to see those with the power to make decisions that impact on the lives of the general public, blatantly ignoring the public’s cries for Agency accountability. Most individuals before the NCAT or using NCAT services are not legally qualified or trained, and are not legally represented, of which the NCAT is fully aware. Clearly there is a fundamental duty of care expected from each and every one of our judiciary and its staff, and with publications of Codes of Conduct, there is a general sense of surprise by judicial staff when a member of the public asserts to rely on it. It’s the same with any NSW government agency personnel.
Ironically, in the context of the NSW judiciary where legal decisions are made in accordance with the laws of the State, it would seem that those administering the law should not need a Code of Conduct to guide their behaviours. One would reasonably expect it is a very high quality of individual who is able to secure these sought-after positions,” stated NSW Freedom of Information Advocate Telina Webb, who readily quotes Tribunal Member Francis Marks’ case of Council of the Law Society of NSW v DXW in 2019 (56), QUOTE "“….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….”UNQUOTE.
“Francis Marks’ comment might be considered a public concession if it were not for the public’s realisation legislation does not work in the public’s best interests. Many who have walked the halls of NCAT long before Mr Zonnevylle and indeed my husband and I, both before and after the case of DXW, leave with the exact same tune ringing in their ears,” Ms Webb said.
Speaking to NSW Freedom of Information Mr Zonnevylle commented, “It’s not just the Hearing process, where you constantly find yourself outgunned by Agency legal representatives. It’s applying for a fee waiver, where NCAT refuses to articulate what constitutes special circumstances for that waiver. It’s lodging a credit card authority form and it somehow goes missing, which can result in an application being invalid and subsequently rejected. It’s the refusal of NCAT to allow a party to proceedings to record a Hearing, requested due to the ongoing difficulties and poor quality of products provided by the Registry. I am not alone when I say hearing recordings are obviously edited before release, which should never be allowed. It’s the refusal of the NCAT President to properly investigate serious complaints, complaints supported by copious amounts of documentary evidence. And you can forget about getting any question of law to the Supreme Court. NCAT will do everything to obstruct any chance the Supreme Court will be looking under the covers. And why is it so difficult to get written reasons for decisions in accordance with the legislation? NCAT is also well-known for imposing ridiculous timetables for the lodging of Statements and Submissions, tasks which just cannot be done with any degree of quality when you don’t have the skills or resources. In my case, a Section 110 Restraining Order issued under the GIPA Act 2009 was granted to a NSW Agency collective, a group of NSW government departments evidenced to collude and unlawfully share my personal information, because NCAT refused to grant me the fundamental opportunity to lodge my documentation in time. I had no chance, it was a slam-dunk. It seems to be a strategy between NCAT and Agencies to lock down and shut out the vulnerable public. And of course this Agency collective engaged a Senior Counsel. What chance did I have when everything about my case was prejudicial?” commented Mr Zonnevylle.
Mr Zonnevylle went on to say “What’s become blatantly obvious is that there are so many pieces of legislation, and so many mechanisms for reporting government employee misconduct, it actually makes it easier for them to remain unaccountable. As an example, complaints about NCAT Members and Agency Solicitors fall on deaf ears to the Office of the Legal Services Commissioner (OLSC). The Commissioner doesn’t look at anything relating to the GSE Act, the GIPA Act, the NCAT Act, the ADR Act, none of them. He’s only interested in the Legal Professions Uniform Law Act 2014 (LPUL). So anything referring to another piece of legislation in the course of reporting misconduct is instantly thrown in the trash. It’s the same with all other legislation. Reports about breaches of the GIPA Act by Agency personnel gain no traction within a Code of Conduct Report to the Agency concerned, and the IPC covertly consults with Agencies when the GIPA Act is in question, whilst leaving the complainant outside securely locked doors during its complaint handling process.”
As further evidence of negligence to hold Agency personnel to account, in October 2018 the external solicitor for Port Stephens Council Mr Carlo Zoppo of Lindsay Taylor Lawyers, a solicitor with unbridled access to questionable agency conduct, had an apparent crisis of conscience, providing an unedited copy of a Council letter to Telina Webb and her husband Paul McEwan. The letter of March 2017 was authored by Port Stephens Council’s Governance Manager Tony Wickham.
The letter had been written to the IPC, in response to any inquiry concerning the GIPA Act and Council’s refusal to accept an Informal Access Application from Mr McEwan. In order to influence the IPC, Tony Wickham falsely informed an Investigating Officer of the IPC that apprehended violence orders had been issued against Mr McEwan and his wife Ms Webb, that police had been called to their neighbourhood due to disturbances involving them, and that they presented a serious risk to public safety. Tony Wickham claimed information requested by Mr McEwan had been withheld due to a public safety issue.
The IPC later determined the statements of apprehended violence orders originated from Ms Webb and took no action. Such refusal to call Agency personnel to account, and blame innocent members of the public for what has occurred, is nothing new to those who petition for action and accountability. It should be pointed out no apprehended violence orders have ever been issued against Mr McEwan and Ms Webb, of which Council’s Tony Wickham was at all times fully aware, in fact in February 2020 the NCAT asked Council if it had seen any AVO documentation to which Council replied “NO”. Under oath later on 06th December 2020 Tony Wickham told the NCAT the apprehended violence orders concerned a third party and not Mr McEwan or Ms Webb. However, this did not stop Tony Wickham from weaponising his letter, sending to the NSW Anti-Discrimination Board, the NSW Office of Local Government, and the NSW Judiciary, all in relation to Mr McEwan and Ms Webb.
Following from his false and misleading letter to the IPC in March 2017, the same person Tony Wickham of Port Stephens Council would make a public presentation he created for a NSW Local Government Professionals regional meeting in July 2018, a presentation which saw him using satirical cartoon images to denigrate and vilify Mr McEwan and Ms Webb with the terms “them” and “us” underneath those images to exemplify the cultural and departmental attitudes of NSW government agencies when dealing with the public. The image of "squeazing blood out of a stone" totally indicative of the difficulties Agencies deliberately implement to obstruct access to information. The final images of that presentation were the three wise monkeys; hear no evil, speak no evil, see no evil. In other words, tell the public nothing. The presentation, which listed the names of Mr McEwan and Ms Webb, informed the audience that both individuals presented a serious risk to Council staff, with Tony Wickham highlighting “a serious risk of harm”.
Annual Reports from the Office of the NSW Information & Privacy Commissioner (IPC) list statistics of closed complaints such as that referred to above concerning Port Stephens Council, giving the false impression complainants are satisfied with the outcomes.
In parallel to the lack of remotely adequate complaint resolution of the IPC, the examples of the OLSC completely failing the public are also very clear when looking at the case reported of Sydney solicitor Terence Goldberg’s theft of monies from a Sydney religious organisation and charity, when he deliberately misled the NSW Supreme Court by unlawfully claiming costs against a defendant in proceedings, a defendant who was not represented by Terence Goldberg and was in fact unrepresented. Terence Goldberg was, through the Trust of Turner Freeman, successful in receiving the staggering amount of approximately $985,000.00. Again, there were no legal fees due on the part of the religious organisation and charity.
The OLSC has not taken any disciplinary action in the Goldberg matter and has not undertaken any investigation, despite being referred to indisputable court records. Likewise the Law Society of NSW has also turned a blind eye.
As with the actions of Terence Goldberg, in Mr Zonnevylle’s case there is no evidence the OLSC has approached any agency with a single question.
Mr Zonnevylle sees the behaviours of agency and judiciary personnel forcing applications for review with the NCAT, forcing appeals, and forcing the public to complain. Indeed if agency personnel conducted government business with the highest of propriety at first instance, respecting the public’s fundamental rights, and providing the services naturally expected, reviews and complaints would be substantially alleviated.
“What’s needed is for many of the current pieces of legislation to be amended to align with the Personal Information & Privacy Protection Act 1998 (PIPP), where a member of the public can seek a Review of Conduct of an individual under Section 53, which if not satisfied can be brought to the NCAT for an open hearing and cross examination of the alleged offender. This takes the beaurocratic disinterest in agency misconduct out of the hands of lazy decision-makers and allows those damaged by unacceptable behaviours an avenue of redress,” stated Ms Webb.
“The public is willing to do the job of those shirking their legislated responsibilities to do so, so let the public do so,” she added.
Mr Zonnevylle’s petitions and the OLSC responses will be available here shortly.
Contact: Peter Zonnevylle, 0404 729 808 NSW Civil & Administrative Tribunal, 1300 006 228 Office of the NSW Information & Privacy Commissioner, 1300 363 992 Office of the Legal Services Commissioner, 1800 242 958 Law Society of New South Wales, (02) 9926 0333
Whilst there has been much discussion and reference within the NCAT arena to caselaw and agency misconduct issues in relation to the Government Information (Public Access) Act 2009 (GIPA) and NSW Civil & Administrative Tribunal Act 2013 (NCAT), this time the difficulties are identified within the Government Sector Employment Act 2013 (GSE Act). Such difficulties reveal the public’s inability to rely upon mandated Codes of Conduct within the legislation. The GSE Act and Code of Conduct sets out the expectations of staff employed by this branch of the NSW Judiciary inclusive of Registry Staff.
Numerous correspondence between a member of the public and the NCAT over a long period of time show for the most part questions concerning the NCAT’s application and staff adherence to the GSE Act and specifically the Code of Ethical Conduct remain completely unanswered. The Code, which emanates from the NSW Dept of Communities & Justice, assures its readers there is a fundamental expectation all staff will conduct themselves appropriately, and importantly communicates that all staff are aware of what is required of them. The Code is not elusive, it is readily available to the general public, and as such the public does rely on it. The Code also informs of its methodology for any non-compliance with it. However, what it doesn’t say is that it’s practically impossible to call any staff to account for breaches.
Mr Peter Zonnevylle was interviewed by NSW Freedom of Information, sharing the documented breadth of his inquiries into the GSE Act, confirming he has kept accurate records where reference has been made to senior staff at NCAT including Tribunal Members. Members and Registry staff are alleged to have breached the Code of Conduct regularly and with total disregard to the Code when highlighted. NCAT has also been directed to the GSE Act where it brackets proceedings, directly with presiding Members with no action or acknowledgement whatsoever, where Members regularly state words to the effect “we’re here to review your application, not review agency conduct”. In most cases the conduct referred to has occurred in connection with the exercise of NSW government administrative functions, in the midst of NCAT proceedings, such as requests to access government information under the GIPA Act.
In stark contrast to the realisation NCAT readily does takes into account the so-called conduct of the public opposing NSW Government Agencies, is the standard operating procedure of NCAT to remain steadfastly disinterested and disconnected to any Agency personnel misconduct. In fact, NCAT accepts the so-called conduct of the public as personal factors of consideration when drawing conclusions and making its decisions, seeing NCAT often itemising such conduct in caselaw printed in its forever-text. The public are often left feeling the NCAT is unjust, biased, prejudicial, and blatantly favours NSW Government Agency personnel as a result, leaving them feeling unnecessarily victimised. Such were the cases of McEwan and Webb v Port Stephens Council in 2017, where the Tribunal’s Mr Montgomery accepted the untested ‘evidence’ of Council's Governance Manager Tony Wickham, and worse denied McEwan and Webb the procedural right to cross-exam Wickham on his claims.
“It is so regrettable to see those with the power to make decisions that impact on the lives of the general public, blatantly ignoring the public’s cries for Agency accountability. Most individuals before the NCAT or using NCAT services are not legally qualified or trained, and are not legally represented, of which the NCAT is fully aware. Clearly there is a fundamental duty of care expected from each and every one of our judiciary and its staff, and with publications of Codes of Conduct, there is a general sense of surprise by judicial staff when a member of the public asserts to rely on it. It’s the same with any NSW government agency personnel.
Ironically, in the context of the NSW judiciary where legal decisions are made in accordance with the laws of the State, it would seem that those administering the law should not need a Code of Conduct to guide their behaviours. One would reasonably expect it is a very high quality of individual who is able to secure these sought-after positions,” stated NSW Freedom of Information Advocate Telina Webb, who readily quotes Tribunal Member Francis Marks’ case of Council of the Law Society of NSW v DXW in 2019 (56), QUOTE "“….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….”UNQUOTE.
“Francis Marks’ comment might be considered a public concession if it were not for the public’s realisation legislation does not work in the public’s best interests. Many who have walked the halls of NCAT long before Mr Zonnevylle and indeed my husband and I, both before and after the case of DXW, leave with the exact same tune ringing in their ears,” Ms Webb said.
Speaking to NSW Freedom of Information Mr Zonnevylle commented, “It’s not just the Hearing process, where you constantly find yourself outgunned by Agency legal representatives. It’s applying for a fee waiver, where NCAT refuses to articulate what constitutes special circumstances for that waiver. It’s lodging a credit card authority form and it somehow goes missing, which can result in an application being invalid and subsequently rejected. It’s the refusal of NCAT to allow a party to proceedings to record a Hearing, requested due to the ongoing difficulties and poor quality of products provided by the Registry. I am not alone when I say hearing recordings are obviously edited before release, which should never be allowed. It’s the refusal of the NCAT President to properly investigate serious complaints, complaints supported by copious amounts of documentary evidence. And you can forget about getting any question of law to the Supreme Court. NCAT will do everything to obstruct any chance the Supreme Court will be looking under the covers. And why is it so difficult to get written reasons for decisions in accordance with the legislation? NCAT is also well-known for imposing ridiculous timetables for the lodging of Statements and Submissions, tasks which just cannot be done with any degree of quality when you don’t have the skills or resources. In my case, a Section 110 Restraining Order issued under the GIPA Act 2009 was granted to a NSW Agency collective, a group of NSW government departments evidenced to collude and unlawfully share my personal information, because NCAT refused to grant me the fundamental opportunity to lodge my documentation in time. I had no chance, it was a slam-dunk. It seems to be a strategy between NCAT and Agencies to lock down and shut out the vulnerable public. And of course this Agency collective engaged a Senior Counsel. What chance did I have when everything about my case was prejudicial?” commented Mr Zonnevylle.
Mr Zonnevylle went on to say “What’s become blatantly obvious is that there are so many pieces of legislation, and so many mechanisms for reporting government employee misconduct, it actually makes it easier for them to remain unaccountable. As an example, complaints about NCAT Members and Agency Solicitors fall on deaf ears to the Office of the Legal Services Commissioner (OLSC). The Commissioner doesn’t look at anything relating to the GSE Act, the GIPA Act, the NCAT Act, the ADR Act, none of them. He’s only interested in the Legal Professions Uniform Law Act 2014 (LPUL). So anything referring to another piece of legislation in the course of reporting misconduct is instantly thrown in the trash. It’s the same with all other legislation. Reports about breaches of the GIPA Act by Agency personnel gain no traction within a Code of Conduct Report to the Agency concerned, and the IPC covertly consults with Agencies when the GIPA Act is in question, whilst leaving the complainant outside securely locked doors during its complaint handling process.”
As further evidence of negligence to hold Agency personnel to account, in October 2018 the external solicitor for Port Stephens Council Mr Carlo Zoppo of Lindsay Taylor Lawyers, a solicitor with unbridled access to questionable agency conduct, had an apparent crisis of conscience, providing an unedited copy of a Council letter to Telina Webb and her husband Paul McEwan. The letter of March 2017 was authored by Port Stephens Council’s Governance Manager Tony Wickham.
The letter had been written to the IPC, in response to any inquiry concerning the GIPA Act and Council’s refusal to accept an Informal Access Application from Mr McEwan. In order to influence the IPC, Tony Wickham falsely informed an Investigating Officer of the IPC that apprehended violence orders had been issued against Mr McEwan and his wife Ms Webb, that police had been called to their neighbourhood due to disturbances involving them, and that they presented a serious risk to public safety. Tony Wickham claimed information requested by Mr McEwan had been withheld due to a public safety issue.
The IPC later determined the statements of apprehended violence orders originated from Ms Webb and took no action. Such refusal to call Agency personnel to account, and blame innocent members of the public for what has occurred, is nothing new to those who petition for action and accountability. It should be pointed out no apprehended violence orders have ever been issued against Mr McEwan and Ms Webb, of which Council’s Tony Wickham was at all times fully aware, in fact in February 2020 the NCAT asked Council if it had seen any AVO documentation to which Council replied “NO”. Under oath later on 06th December 2020 Tony Wickham told the NCAT the apprehended violence orders concerned a third party and not Mr McEwan or Ms Webb. However, this did not stop Tony Wickham from weaponising his letter, sending to the NSW Anti-Discrimination Board, the NSW Office of Local Government, and the NSW Judiciary, all in relation to Mr McEwan and Ms Webb.
Following from his false and misleading letter to the IPC in March 2017, the same person Tony Wickham of Port Stephens Council would make a public presentation he created for a NSW Local Government Professionals regional meeting in July 2018, a presentation which saw him using satirical cartoon images to denigrate and vilify Mr McEwan and Ms Webb with the terms “them” and “us” underneath those images to exemplify the cultural and departmental attitudes of NSW government agencies when dealing with the public. The image of "squeazing blood out of a stone" totally indicative of the difficulties Agencies deliberately implement to obstruct access to information. The final images of that presentation were the three wise monkeys; hear no evil, speak no evil, see no evil. In other words, tell the public nothing. The presentation, which listed the names of Mr McEwan and Ms Webb, informed the audience that both individuals presented a serious risk to Council staff, with Tony Wickham highlighting “a serious risk of harm”.
Annual Reports from the Office of the NSW Information & Privacy Commissioner (IPC) list statistics of closed complaints such as that referred to above concerning Port Stephens Council, giving the false impression complainants are satisfied with the outcomes.
In parallel to the lack of remotely adequate complaint resolution of the IPC, the examples of the OLSC completely failing the public are also very clear when looking at the case reported of Sydney solicitor Terence Goldberg’s theft of monies from a Sydney religious organisation and charity, when he deliberately misled the NSW Supreme Court by unlawfully claiming costs against a defendant in proceedings, a defendant who was not represented by Terence Goldberg and was in fact unrepresented. Terence Goldberg was, through the Trust of Turner Freeman, successful in receiving the staggering amount of approximately $985,000.00. Again, there were no legal fees due on the part of the religious organisation and charity.
The OLSC has not taken any disciplinary action in the Goldberg matter and has not undertaken any investigation, despite being referred to indisputable court records. Likewise the Law Society of NSW has also turned a blind eye.
As with the actions of Terence Goldberg, in Mr Zonnevylle’s case there is no evidence the OLSC has approached any agency with a single question.
Mr Zonnevylle sees the behaviours of agency and judiciary personnel forcing applications for review with the NCAT, forcing appeals, and forcing the public to complain. Indeed if agency personnel conducted government business with the highest of propriety at first instance, respecting the public’s fundamental rights, and providing the services naturally expected, reviews and complaints would be substantially alleviated.
“What’s needed is for many of the current pieces of legislation to be amended to align with the Personal Information & Privacy Protection Act 1998 (PIPP), where a member of the public can seek a Review of Conduct of an individual under Section 53, which if not satisfied can be brought to the NCAT for an open hearing and cross examination of the alleged offender. This takes the beaurocratic disinterest in agency misconduct out of the hands of lazy decision-makers and allows those damaged by unacceptable behaviours an avenue of redress,” stated Ms Webb.
“The public is willing to do the job of those shirking their legislated responsibilities to do so, so let the public do so,” she added.
Mr Zonnevylle’s petitions and the OLSC responses will be available here shortly.
Contact: Peter Zonnevylle, 0404 729 808 NSW Civil & Administrative Tribunal, 1300 006 228 Office of the NSW Information & Privacy Commissioner, 1300 363 992 Office of the Legal Services Commissioner, 1800 242 958 Law Society of New South Wales, (02) 9926 0333