Port Stephens Council Forks Out $99,000.00 in Public Monies to Clear Its False & Misleading Claims
an FOI Applicant Posed a Serious Risk to Public Safety, 18.10.2021
The stars of the show were Lindsay Taylor Lawyers Carlo Zoppo, backed up by Barristers Brenda Tronson and Matthew Cobb-Clark of Level 22 Chambers in Sydney, representing Port Stephens Council as it tried unsuccessfully to defend its unlawful decision to prevent access to mandatory interest disclosures and other open access records.
The team were against unrepresented, non-legal professional Mr Paul McEwan who had lodged a valid access application with Port Stephens Council for the documents.
Such documents are clearly identified under current FOI legislation, the Government Information (Public Access) Act 2009, or GIPA, as open access mandated for release free of charge.
In fact, such documents are to be made available anonymously, without any person required to fill out any forms, disclose their personal information, or pay any fees.
However in contravention of the GIPA Act 2009 Council prevented access to the documents and charged Mr McEwan processing fees of $195.00.
Mr McEwan then lodged an Application for Review with the NSW Civil & Administrative Tribunal, NCAT, for a cost of $110.00.
During the NCAT proceedings Council as Respondent disclosed it had only conducted one third-party consultation to ascertain whether there was any objection to the release of the information. But it did not disclose to Mr McEwan it had used that one objection to speak for all of the documents which totalled some (100) one hundred.
The singular objector to the release of the interest disclosures was Council’s in-house solicitor Head of Legal Services Lisa Helene Marshall. Clearly taking her objection into consideration was biased and compromised the entire Decision on whether or not to make the documents public.
Once the Application for Review had been lodged with the NCAT, Council’s external solicitor Carlo Zoppo then contacted each of the remaining (99) ninety-nine record owners, then able to disclose Mr McEwan as the Applicant.
Port Stephens Council and Mr McEwan have a long history of disputes dating back to 2009 when poor Council Planner advice and continued obstruction to Council’s legislated development application processes resulted in Mr McEwan incurring legal costs of approximately $100,00.00 for building works valued at a meagre $4,500.00, costs which saw him selling his home.
Mr McEwan had also lodged several valid requests for information prior to this one, with Council falsely claiming he presented a serious risk to public safety, that apprehended violence orders had been issued against him, that police had been called to his neighbourhood due to disturbances involving him and that he had personally attacked staff.
Those false allegations originated from Council’s Governance Manager Tony Leslie Wickham, when he falsified information about Mr McEwan to an Investigating Officer of the Office of the NSW Information & Privacy Commissioner (IPC).
Tony Wickham wrote his damning letter to the IPC in 2015 unbeknown to Mr McEwan, but Council solicitor Carlo Zoppo suffered an apparent personal crisis of conscience and provided Mr McEwan’s wife a full unredacted copy of it in mid-2018.
This was further to Tony Wickham suggesting and implementingan unlawful agreement with an unknown member of the public in March / April 2012 to conceal and protect open access documents lodged with Council; with Tony Wickham informing the party to that agreement he could rely on the ‘risk of harm’ clause in the GIPA Act 2009 to object to the mandatory release, albeit knowing the claim was completely baseless. The documents unlawfully under Tony Wickham's protection were the Objecting Submissions to Mr McEwan's Development Application, so the agreement was directed specifically towards him. Those documents have still not been released to Mr McEwan.
From there the false claims of a risk of harm escalated to Tony Wickham’s letter to the IPC, a letter which was written to implement the unlawful agreement and the ‘risk of harm’ clause, putting Tony Wickham's plan to conceal open access information into beaurocratic action the result of his reassurance he would personally address any enquiries from the IPC should that eventuate.
But in 2017 in separate NCAT proceedings Governance Manager Tony Wickham and Council solicitor Lisa Marshall enjoyed even greater success with their joint false and misleading statements against Mr McEwan when they jointly convinced an NCAT Tribunal Member Mr McEwan presented such a danger to the public, the Tribunal Member published caselaw referring to Mr McEwan in the context of ‘molestation of a person’, also making reference to the ‘Crimes, Domestic and Personal Violence Act 2007’. Those impressions on a gullible Tribunal Member occured in a confidential session excluding Mr McEwan, with Council presenting a confidential statement and submission perpetuating the lies. The allegations were never tested and so the claims went unchallenged, accepted on face value and acted upon by NCAT.
Mr McEwan was understandably shocked by the use of such terms to describe him, suffering a serious medical episode when he initially read the caselaw.
At the hearing for this latest Council Access Application Decision, 01st February 2021, Tony Wickham’s false and misleading letter to the IPC had been presented to the Tribunal by Mr McEwan as Council was now claiming the document owners, including Lisa Marshall, had expressed a concern for their well-being if the records were released.
Again there was no basis for the outrageous claims Mr McEwan would somehow harm any of these individuals.
Notably Council’s representatives did not comment on or approach Tony Wickham’s false and misleading letter to the IPC, insisting Council was absolutely not making any claim Mr McEwan posed any risk to anyone.
No doubt having been caught well and truly with his corporate pants down, Tony Wickham’s false and misleading letter and his continued efforts to discredit Mr McEwan in the worst possible way were now finally at an end.
The resultant Tribunal Decision of 30th April 2021 makes abundantly 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 presently redacted in the documents released to him….”
“Not a scintilla of evidence,” stated Mr McEwan. “Nobody could really appreciate just how much those few words mean to me when I’ve endured the pain and suffering of being falsely branded a danger to the community by a Government Agency Corporate Policeman; someone who always knew it was false and misleading. It’s been a harrowing four years, and I did nothing wrong.” The Tribunal Decision of 30th April 2021 went further stating at Paragraph 172: "......It is a serious matter to make in a submission against a person, particulalry on behalf of a Local Government Authority, without sound reasons and probative evidence."
“This simple case, a request for open access information mandated for release free of charge, has not only made clear to every NSW agency their legal obligations under the legislation, it has also cleared my name of the false and misleading allegations!!’ he added.
“Today I received records from Port Stephens Council showing this case cost a staggering $99,000.00! Council engaged a legal firm including (2) two barristers! And the whole thing totally backfired on it with my name being cleared! ', I’d say that’s justice,” added Mr McEwan.
“The irony is I could have spent decades and half a million dollars in the Supreme Court fighting to clear my name, but all it cost me was $195.00 in fees to those criminals for information supposed to be free, and another $110.00 for my NCAT Application! ”
The public should be very concerned Council’s in-house solicitor Head of Legal Services Lisa Marshall wasted $99,000.00 on this case to protect her own records from public availability and scrutiny, with no indication of what the actual budget was, to wage her own personal fight against her legislated interest disclosures being made public.
Contact: Paul McEwan, 0405 649 496
Lisa Marshall, 0408 497 649, (02) 4988 0377
Tony Wickham, 0408 978 884, (02) 4988 0187
Brenda Tronson, (02) 9151 2212
Matthew Cobb-Clarke, (02) 9151 2239
The team were against unrepresented, non-legal professional Mr Paul McEwan who had lodged a valid access application with Port Stephens Council for the documents.
Such documents are clearly identified under current FOI legislation, the Government Information (Public Access) Act 2009, or GIPA, as open access mandated for release free of charge.
In fact, such documents are to be made available anonymously, without any person required to fill out any forms, disclose their personal information, or pay any fees.
However in contravention of the GIPA Act 2009 Council prevented access to the documents and charged Mr McEwan processing fees of $195.00.
Mr McEwan then lodged an Application for Review with the NSW Civil & Administrative Tribunal, NCAT, for a cost of $110.00.
During the NCAT proceedings Council as Respondent disclosed it had only conducted one third-party consultation to ascertain whether there was any objection to the release of the information. But it did not disclose to Mr McEwan it had used that one objection to speak for all of the documents which totalled some (100) one hundred.
The singular objector to the release of the interest disclosures was Council’s in-house solicitor Head of Legal Services Lisa Helene Marshall. Clearly taking her objection into consideration was biased and compromised the entire Decision on whether or not to make the documents public.
Once the Application for Review had been lodged with the NCAT, Council’s external solicitor Carlo Zoppo then contacted each of the remaining (99) ninety-nine record owners, then able to disclose Mr McEwan as the Applicant.
Port Stephens Council and Mr McEwan have a long history of disputes dating back to 2009 when poor Council Planner advice and continued obstruction to Council’s legislated development application processes resulted in Mr McEwan incurring legal costs of approximately $100,00.00 for building works valued at a meagre $4,500.00, costs which saw him selling his home.
Mr McEwan had also lodged several valid requests for information prior to this one, with Council falsely claiming he presented a serious risk to public safety, that apprehended violence orders had been issued against him, that police had been called to his neighbourhood due to disturbances involving him and that he had personally attacked staff.
Those false allegations originated from Council’s Governance Manager Tony Leslie Wickham, when he falsified information about Mr McEwan to an Investigating Officer of the Office of the NSW Information & Privacy Commissioner (IPC).
Tony Wickham wrote his damning letter to the IPC in 2015 unbeknown to Mr McEwan, but Council solicitor Carlo Zoppo suffered an apparent personal crisis of conscience and provided Mr McEwan’s wife a full unredacted copy of it in mid-2018.
This was further to Tony Wickham suggesting and implementingan unlawful agreement with an unknown member of the public in March / April 2012 to conceal and protect open access documents lodged with Council; with Tony Wickham informing the party to that agreement he could rely on the ‘risk of harm’ clause in the GIPA Act 2009 to object to the mandatory release, albeit knowing the claim was completely baseless. The documents unlawfully under Tony Wickham's protection were the Objecting Submissions to Mr McEwan's Development Application, so the agreement was directed specifically towards him. Those documents have still not been released to Mr McEwan.
From there the false claims of a risk of harm escalated to Tony Wickham’s letter to the IPC, a letter which was written to implement the unlawful agreement and the ‘risk of harm’ clause, putting Tony Wickham's plan to conceal open access information into beaurocratic action the result of his reassurance he would personally address any enquiries from the IPC should that eventuate.
But in 2017 in separate NCAT proceedings Governance Manager Tony Wickham and Council solicitor Lisa Marshall enjoyed even greater success with their joint false and misleading statements against Mr McEwan when they jointly convinced an NCAT Tribunal Member Mr McEwan presented such a danger to the public, the Tribunal Member published caselaw referring to Mr McEwan in the context of ‘molestation of a person’, also making reference to the ‘Crimes, Domestic and Personal Violence Act 2007’. Those impressions on a gullible Tribunal Member occured in a confidential session excluding Mr McEwan, with Council presenting a confidential statement and submission perpetuating the lies. The allegations were never tested and so the claims went unchallenged, accepted on face value and acted upon by NCAT.
Mr McEwan was understandably shocked by the use of such terms to describe him, suffering a serious medical episode when he initially read the caselaw.
At the hearing for this latest Council Access Application Decision, 01st February 2021, Tony Wickham’s false and misleading letter to the IPC had been presented to the Tribunal by Mr McEwan as Council was now claiming the document owners, including Lisa Marshall, had expressed a concern for their well-being if the records were released.
Again there was no basis for the outrageous claims Mr McEwan would somehow harm any of these individuals.
Notably Council’s representatives did not comment on or approach Tony Wickham’s false and misleading letter to the IPC, insisting Council was absolutely not making any claim Mr McEwan posed any risk to anyone.
No doubt having been caught well and truly with his corporate pants down, Tony Wickham’s false and misleading letter and his continued efforts to discredit Mr McEwan in the worst possible way were now finally at an end.
The resultant Tribunal Decision of 30th April 2021 makes abundantly 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 presently redacted in the documents released to him….”
“Not a scintilla of evidence,” stated Mr McEwan. “Nobody could really appreciate just how much those few words mean to me when I’ve endured the pain and suffering of being falsely branded a danger to the community by a Government Agency Corporate Policeman; someone who always knew it was false and misleading. It’s been a harrowing four years, and I did nothing wrong.” The Tribunal Decision of 30th April 2021 went further stating at Paragraph 172: "......It is a serious matter to make in a submission against a person, particulalry on behalf of a Local Government Authority, without sound reasons and probative evidence."
“This simple case, a request for open access information mandated for release free of charge, has not only made clear to every NSW agency their legal obligations under the legislation, it has also cleared my name of the false and misleading allegations!!’ he added.
“Today I received records from Port Stephens Council showing this case cost a staggering $99,000.00! Council engaged a legal firm including (2) two barristers! And the whole thing totally backfired on it with my name being cleared! ', I’d say that’s justice,” added Mr McEwan.
“The irony is I could have spent decades and half a million dollars in the Supreme Court fighting to clear my name, but all it cost me was $195.00 in fees to those criminals for information supposed to be free, and another $110.00 for my NCAT Application! ”
The public should be very concerned Council’s in-house solicitor Head of Legal Services Lisa Marshall wasted $99,000.00 on this case to protect her own records from public availability and scrutiny, with no indication of what the actual budget was, to wage her own personal fight against her legislated interest disclosures being made public.
Contact: Paul McEwan, 0405 649 496
Lisa Marshall, 0408 497 649, (02) 4988 0377
Tony Wickham, 0408 978 884, (02) 4988 0187
Brenda Tronson, (02) 9151 2212
Matthew Cobb-Clarke, (02) 9151 2239