NSW Civil & Administrative Tribunal’s Decision Inconsistencies and Procedural Errors Continue to be
Seriously Problematic for The Unrepresented, Exposed and Vulnerable General Public, 21.02.2023
A great percentage of those brave enough to venture into the NSW Civil and Administrative Tribunal (NCAT) arena for judicial reviews of Agency decisions are simple, ordinary members of the public. Most of those are not legally trained, are not legally qualified, and not legally represented. Most are all three.
Most commence their NCAT journey with hearts and heads held high, fully believing in the NSW justice system, seeking truth, validation, and a lawful decision that inevitably corrects Agency decisions that far too often blatantly contradict the applicable legislation.
It can be a very disappointing reality to most of those NCAT virgins that some NCAT Decisions leave that same public confused if not disillusioned with the whole process. One part of the NCAT Act 2013 says one thing, with another part stating the complete opposite.
Two Tribunal Hearings can determine precisely the same type of Application, involving the exact same (2) two parties to the proceedings, with the same group of lawyers making the same arguments, and yet one Tribunal decision will say one thing, and the outcome of an identical parallel hearing finds a differently constituted Tribunal (another member or members) completely disagreeing.
Case in point is the matter of McEwan v Port Stephens Council (No. 2) (2022) NSWCATAD 308, where costs were awarded against Mr McEwan in favour of the Council, despite the NCAT Act 2013 Section 60 (1) stating in plain English "Each party to the proceedings is to pay the party's own costs." The substantive issues of the case, which preceded the Council’s Application for Costs, was a Miscellaneous Application to Revoke the NCAT Orders under the NCAT Act 2013 Section 64(1) and Section 49(2) which were invoked in September 2017 by the Tribunal’s Stephen Montgomery. The NCAT Act 2013 Section 64(1) allows the Tribunal to restrict the disclosure of certain information within proceedings, and is generally used to prevent the release of documents provided to the Tribunal on a confidential basis. The NCAT Act 2013 Section 49(2) is designed to privatise a part or parts of a Hearing due to the sensitive or confidential nature of any evidence given. It is not designed to exclude parties to the proceedings, it is designed to exclude the general public, that is the gallery. However, the Tribunal uses this Clause to exclude parties to proceedings, something that occurs with great regularity. NCAT virgins would not be aware Section 49(2) does not relate to them, and so trustingly comply with instructions to leave the Hearing Room, which is decidely prejudicial to a case. In March 2017, before Stephen Montgomery, Mr McEwan and his wife Ms Webb were NCAT virgins, and so trusted Mr Montgomery's instructions they vacate the Hearing Room along with the public gallery was lawful.
The case before Mr Montgomery concerned the Objecting Submissions to a Development Application, Mr McEwan's Development Application, documents which are classified under the legislation as Open Access Information Mandated for Release Free of Charge. When he walked into the NCAT arena in March 2017, Paul McEwan was an NCAT virgin, as was his wife Telina Webb. At that time of the March 2017 hearing, Mr Montgomery had allowed Council (3) three confidential sessions during the day-long proceedings but did not make any such sessions available to Mr McEwan. The purpose of the confidential sessions was to give Council the opportunity to ‘convince’ the Tribunal in private and unchallenged, that Mr McEwan presented a serious risk to public safety, and that the information he had requested was withheld from him in order to protect members of the public. Council's Governance Manager Tony Wickham and Head of Legal Services Lisa Marshall, had both written Statements and Submissions toward the Montgomery Hearing stating QUOTE "Council also submits that it is well founded in withholding the information on the basis disclosure may expose a person to a risk of harm or of serious harassment or serious intimidation" and "Council has also had recourse to a number of further documents detailing alleged threats and inducements made by the Applicant against those making the subject submissions," UNQUOTE.
The allegations were frightening. Mr McEwan was certain he had done nothing to warrant such claims. Council had not provided anything to validate such claims. Mr McEwan made his Police Records available to Mr Montgomery but he refused to read them, where he would have found a pristine record showing nothing whatsoever of concern. Of further concern was Mr Montgomery's allowance of Tony Wickham to amend his Statement in one of the confidential sessions, however Mr Montgomery did not inform Mr McEwan what that amendment was. The Tribunal's Stephen Montgomery did not test the claims of Port Stephens Council. Mr McEwan was effectively determined guilty without any opportunity of a defence. But let us not forget the documents allegedly supporting the claims against Mr McEwan, would be available to any Government staff member who asked after them, and that every Right to Information Officer within Port Stephens Council was privy to same and was expected to walk in Council's footsteps. Those aforementioned Orders under the NCAT Act 2013 Sections 64(1) and 49(2) were put into place to ensure Council’s evidence was not released to the public and that the confidential sessions would not be made public as well. The Orders also locked the Objecting Submissions away safe from any scrutiny.
Fast forward to October 2018 when Council’s external solicitor Carlo Zoppo of Lindsay Taylor Lawyers would have a crisis of conscience, having been privy to all Council’s claims Mr McEwan presented a serious risk to public safety, resulting in Mr Zoppo providing an unredacted copy of a damning letter authored by Council’s Governance Manager Tony Wickham, to Mr McEwan’s wife Telina Webb. The letter of March 2015 had been written to an Investigating Officer of the Office of the NSW Information & Privacy Commissioner (IPC) in the lead up to the NCAT proceedings, when Council had refused to process an Informal request for the Objecting Submissions. In his letter, Tony Wickham had falsely informed the IPC apprehended violence orders had been issued against Mr McEwan and his wife, that the police had been called to their neighborhood concerning issues involving them, that they had caused a neighbour to be fearful (in tears), and that the information had been withheld from Mr McEwan due to there existing a public safety risk emanating from him.
Mr McEwan correctly identified the requested information as Open Access Information Mandated for Release Free of Charge, and as such was able to be requested and released Informally. At the time Mr McEwan did not understand why Council had refused his Informal Application.
However, and fast forwarding to May 2019, Port Stephens Council would release a bundle of documents to Mr McEwan’s wife Ms Webb of NSW Freedom of Information, documents which detailed an unlawful agreement between Council’s Governance Manager Tony Wickham and a member of the public, an agreement specifically crafted to protect and conceal the open access information, the Objecting Submissions.
In this instance the documents record Tony Wickham suggesting the use of the GIPA Act 2009 Section 14 Table 3(f) Clause, which refers to serious harm, harassment, or serious intimidation as a reason to withhold any kind of document. It should be noted Mr McEwan had and has not ever acted in such fashion towards any person.
In fact in separate proceedings in 2021 an NCAT Senior Member would decide Council’s continued claims Mr McEwan posed a threat to public safety were so ludicrous that “there was not a scintilla of evidence” to support such a claim (at p160).
Port Stephens Council would go on to use the GIPA Act 2009 Section 14 Table 3(f) Clause in excess of (270) two hundred and seventy times, to obstruct legitimate access to predominately Open Access Information Mandated for Release Free of Charge, that Mr McEwan and Ms Webb would be aware of. In excess of two hundred and seventy times. Of course, there could be more. With the realisation some years after the horrid events before the Tribunal’s Stephen Montgomery in 2017, which saw his decision make reference to Mr McEwan with words such as ‘intimidatory conduct’ and ‘molestation’, and further reference to the Crimes, Domestic and Personal Violence Act 2007, the unbelievable realisation Port Stephens Council had willingly provided false and misleading information firstly to the IPC, and then to the NCAT, in February 2022 Mr McEwan lodged a Miscellaneous Application for Revoking of Mr Montgomery’s Orders.
Mr McEwan believed sufficient time had passed, and the new evidence would support, such that the protected NCAT files and confidential aspects of the hearing before Mr Montgomery should now be made public. As such Mr McEwan filed his Miscellaneous Application for the Revoking of the Orders in good faith.
Carlo Zoppo of Lindsay Taylor Lawyers put forward powerful arguments and won the case for Council, leaving the Sections 64 (1) & 49 (2) Orders remaining solidly in place. With a self-professed over (20) twenty years of legal experience and a legal and administrative team behind him, Carlo Zoppo should have won against Mr McEwan who stood alone.
Any reasonable person would agree there was too much at stake for both the NCAT and Port Stephens Council to allow Mr McEwan to succeed in his Miscellaneous Application.
Firstly, Council could not risk exposing its Tony Wickham and Lisa Marshall to impending criminal charges for at minimum numerous acts of perjury, perverting the course of justice, not to mention abuse of public office.
Secondly, the NCAT did not want to deal with the fact an Agency Corporate Policeman had falsified claims against a member of the public due to an unlawful agreement between he and a member of the public, conduct which effectively managed to hoodwink an experienced Senior Member of the NCAT to the detriment of an unrepresented member of the public.
Thirdly, no person would expect the NCAT to want the full nature of Mr Montgomery’s mismanagement and denial of procedural fairness within the matter to be made public and open to scrutiny.
The legal ramifications of finding a Senior Member of the NCAT had been so negligent, and a NSW Government Governance Manager and Government Solicitor had acted unlawfully, are likely unfathomable, and at minimum may have facilitated every of one of Mr Montgomery’s cases to be reopened, costing the public hundreds upon hundreds of thousands of dollars within a Parliamentary Inquiry. And fourthly, those members of the public who provided all the so-called damning evidence against Mr McEwan, the indisputable records that would prove his guilt, had to be protected at all costs, if only to ensure Mr McEwan would not seek out the authors for answers. Council documents, however, would take another twist, when Council would respond to a separate request for information, disclosing it had not sought the consent of any third party to include any of their records in any of the NCAT proceedings. So the actions of Port Stephens Council and its solicitor Carlo Zoppo of Lindsay Taylor Lawyers included covering up the fact Tony Wickham and Lisa Marshall had taken records out of the Council repository and provided them to the NCAT, as "evidence" of Mr McEwan's risk to public safety, without the authors' consent or knowledge. But the fact is there never was any damning evidence against Mr McEwan. It was all founded on the unlawful agreement initiated by Council's Tony Wickham. This is why the Tribunal's Senior Member Durack stated during the Appeal of the Montgomery matter after reading the so-called incriminating documents "they (the authors) haven't claimed any risk of harm, they just don't want them to have the documents (the objecting submissions)."
Fast forward again, this time to May 2022 and having succeeded in defeating Mr McEwan’s Miscellaneous Application, Council lodged an Application for Costs with the NCAT, which was successful.
The 2022 case lost by Mr McEwan was appealed, however he also lost on that occasion. Mr McEwan was not legally represented, with his wife Telina Webb acting as his Agent.
Port Stephens Council thereafter succeeding in the Appeal, lodged a secondary Application for Costs.
On the secondary Application, however, Council did not succeed.
With the first Tribunal Member agreeing Council had completely satisfied the parameters of what constituted the special circumstances warranting the granting of the Application for Costs, the secondary Tribunal Member decision-makers completely disagreed.
It should be noted the same arguments were put forward by Carlo Zoppo of Lindsay Taylor Lawyers, perhaps even stronger arguments the second time around given the loss of the Miscellaneous Application by Mr McEwan and that Costs had been awarded against him.
But the Appeal Panel of the NCAT did not agree with the former NCAT Tribunal Member on the issue of awarding costs.
Such are the inconsistencies the public has come to expect from the NSW Civil & Administrative Tribunal.
It should be noted there is one difference however between the (2) two Costs Applications determined by the NCAT in these interconnected cases: The first Tribunal Member did not comply with the NCAT Act 2013 Section 50 (3) (a) & (b). The Tribunal Member neglected to give the parties, to give Mr McEwan, the opportunity to make any submissions dispensing with a hearing. That hearing was to determine the Application for Costs. In this case the Tribunal Member went ahead of her own volition, determining the Application for Costs in chambers.
The second Tribunal Members, an Appeal Panel, did comply with the NCAT Act 2013 Section 50 (3) (a) & (b). The Appeal Panel did give the parties, did give Mr McEwan, the opportunity to make any submissions dispensing with a hearing.
So where does this leave people like Mr McEwan who have been denied procedural fairness by the Tribunal, in this case the legislated opportunity to make submissions on whether or not they agree to the Tribunal's Decision being made without a formal hearing?
In Mr McEwan’s case, it has left him totally vulnerable to a NSW Government Agency now proven to blatantly ratify legislation, proven to falsify documents to the detriment of the public and to influence key governmental decision-makers, proven to file false and misleading Statements and Submissions with the NSW Judiciary, seeing Port Stephens Council running to the NSW Supreme Court to secure a Costs Assessor, when it knows full well procedural fairness has been withheld from the Respondent to the Costs Application being Mr McEwan.
Again, Mr McEwan was not legally represented, is not legally trained, and is not legally qualified. He faced a powerful, richly-resourced adversary who was willing to spend huge amounts of scarce public monies to achieve its objectives, and he rightfully expected the NCAT to do everything in its power to ensure he would not be disadvantaged in any way.
There is nothing in any of the gross professional misconduct, if not unlawful actions, of the Port Stephens Council Governance Manager Tony Leslie Wickham and Head of Legal Services Lisa Helene Marshall, that aligns with the Council’s Code of Conduct, particularly the Guiding Principle of Council which mandates Council to act fairly, ethically and without bias in the interests of the local community. The Code of Conduct is mandated under the NSW Local Government Act 1993 Section 440. It is not an option. It is the law, and the public rightfully relies on that law.
However, when one realises Tony Wickham as Governance Manager, also holds the parallel conflicting positions of Code of Conduct Coordinator, Complaints Handling Manager, Right to Information Officer, Privacy Officer, and Joint Custodian of Secondary Employment, it is easy to form the view that Tony Wickham sees himself not accountable to anyone whilst juggling his numerous conflicting roles and controlling every one of Council's responses to every kind of inquiry.
It is easy to see who is holding the Council reigns and who is the nominated fire wall. No report, no complaint, no request for information, gets past Tony Wickham. He has put that in writing. And he is the one approving Planning Officer secondary employment where staff operate consultative town planning businesses in parallel to their Council duties.
Port Stephens Council is on the record being financially broken. A recent email to a member of the public from a Senior staff member disclosed Council has a shortfall of approximately $85m over the next ten years. This explains why Council is currently hopeful of a Rate Rise approval from iPART, to be effectively passed on to already struggling Shire residents.
And yet Council continues to engage the likes of Lindsay Taylor Lawyers when it has several in-house solicitors at its disposal.
Council has disclosed it did not undertake any Competitive Legal Services Tendering process for the McEwan Miscellaneous Application matter(s), where individual case estimates are submitted from all nominated legal service competitors as well as Council’s in-house legal staff in order to ensure the public monies in its trust get the best value possible.
As such the legal costs accumulated by Lindsay Taylor Lawyers against Mr McEwan were completely unnecessary and avoidable, and must be considered for what they are, deliberately accrued to be punitive, particularly when Council staff were notably logged in to the NCAT's Virtual Hearings.
Council evidently engaged Lindsay Taylor Lawyers without hesitation. And why not? Carlo Zoppo does know so much about Council’s preferred methodologies for responding to the public it serves. He knows so many of Council's dirty secrets and all the actors. There is no question of the willingness of Lindsay Taylor Lawyers to fight very hard in order for Council to succeed in its objectives. And there can be no mistake there is a fortune to be made in doing so.
How could any court make an order of judgement in favour of this Agency when it, the court, is aware procedural fairness has not been afforded to the target of that judgement order, repeatedly and by the same erring judiciary being the NSW Civil and Administrative Tribunal?
The court would be justified in determining Council should have appealed the Costs Determination with NCAT before proceeding further, because of the clear error in law and denial of procedural fairness at first instance.
NSW Freedom of Information will continue to follow this story and publish the outcomes for the greater public interest in how our current judicial processes are failing those most vulnerable, and how misbehaving NSW Government Agencies are clinking their canteen flutes in applause as a result.
Contact:
Paul McEwan, 0405 649 496 Tony Wickham, 0408 497 649 Lisa Marshall, 0408 978 884 Carlo Zoppo, 0410 451 736
Most commence their NCAT journey with hearts and heads held high, fully believing in the NSW justice system, seeking truth, validation, and a lawful decision that inevitably corrects Agency decisions that far too often blatantly contradict the applicable legislation.
It can be a very disappointing reality to most of those NCAT virgins that some NCAT Decisions leave that same public confused if not disillusioned with the whole process. One part of the NCAT Act 2013 says one thing, with another part stating the complete opposite.
Two Tribunal Hearings can determine precisely the same type of Application, involving the exact same (2) two parties to the proceedings, with the same group of lawyers making the same arguments, and yet one Tribunal decision will say one thing, and the outcome of an identical parallel hearing finds a differently constituted Tribunal (another member or members) completely disagreeing.
Case in point is the matter of McEwan v Port Stephens Council (No. 2) (2022) NSWCATAD 308, where costs were awarded against Mr McEwan in favour of the Council, despite the NCAT Act 2013 Section 60 (1) stating in plain English "Each party to the proceedings is to pay the party's own costs." The substantive issues of the case, which preceded the Council’s Application for Costs, was a Miscellaneous Application to Revoke the NCAT Orders under the NCAT Act 2013 Section 64(1) and Section 49(2) which were invoked in September 2017 by the Tribunal’s Stephen Montgomery. The NCAT Act 2013 Section 64(1) allows the Tribunal to restrict the disclosure of certain information within proceedings, and is generally used to prevent the release of documents provided to the Tribunal on a confidential basis. The NCAT Act 2013 Section 49(2) is designed to privatise a part or parts of a Hearing due to the sensitive or confidential nature of any evidence given. It is not designed to exclude parties to the proceedings, it is designed to exclude the general public, that is the gallery. However, the Tribunal uses this Clause to exclude parties to proceedings, something that occurs with great regularity. NCAT virgins would not be aware Section 49(2) does not relate to them, and so trustingly comply with instructions to leave the Hearing Room, which is decidely prejudicial to a case. In March 2017, before Stephen Montgomery, Mr McEwan and his wife Ms Webb were NCAT virgins, and so trusted Mr Montgomery's instructions they vacate the Hearing Room along with the public gallery was lawful.
The case before Mr Montgomery concerned the Objecting Submissions to a Development Application, Mr McEwan's Development Application, documents which are classified under the legislation as Open Access Information Mandated for Release Free of Charge. When he walked into the NCAT arena in March 2017, Paul McEwan was an NCAT virgin, as was his wife Telina Webb. At that time of the March 2017 hearing, Mr Montgomery had allowed Council (3) three confidential sessions during the day-long proceedings but did not make any such sessions available to Mr McEwan. The purpose of the confidential sessions was to give Council the opportunity to ‘convince’ the Tribunal in private and unchallenged, that Mr McEwan presented a serious risk to public safety, and that the information he had requested was withheld from him in order to protect members of the public. Council's Governance Manager Tony Wickham and Head of Legal Services Lisa Marshall, had both written Statements and Submissions toward the Montgomery Hearing stating QUOTE "Council also submits that it is well founded in withholding the information on the basis disclosure may expose a person to a risk of harm or of serious harassment or serious intimidation" and "Council has also had recourse to a number of further documents detailing alleged threats and inducements made by the Applicant against those making the subject submissions," UNQUOTE.
The allegations were frightening. Mr McEwan was certain he had done nothing to warrant such claims. Council had not provided anything to validate such claims. Mr McEwan made his Police Records available to Mr Montgomery but he refused to read them, where he would have found a pristine record showing nothing whatsoever of concern. Of further concern was Mr Montgomery's allowance of Tony Wickham to amend his Statement in one of the confidential sessions, however Mr Montgomery did not inform Mr McEwan what that amendment was. The Tribunal's Stephen Montgomery did not test the claims of Port Stephens Council. Mr McEwan was effectively determined guilty without any opportunity of a defence. But let us not forget the documents allegedly supporting the claims against Mr McEwan, would be available to any Government staff member who asked after them, and that every Right to Information Officer within Port Stephens Council was privy to same and was expected to walk in Council's footsteps. Those aforementioned Orders under the NCAT Act 2013 Sections 64(1) and 49(2) were put into place to ensure Council’s evidence was not released to the public and that the confidential sessions would not be made public as well. The Orders also locked the Objecting Submissions away safe from any scrutiny.
Fast forward to October 2018 when Council’s external solicitor Carlo Zoppo of Lindsay Taylor Lawyers would have a crisis of conscience, having been privy to all Council’s claims Mr McEwan presented a serious risk to public safety, resulting in Mr Zoppo providing an unredacted copy of a damning letter authored by Council’s Governance Manager Tony Wickham, to Mr McEwan’s wife Telina Webb. The letter of March 2015 had been written to an Investigating Officer of the Office of the NSW Information & Privacy Commissioner (IPC) in the lead up to the NCAT proceedings, when Council had refused to process an Informal request for the Objecting Submissions. In his letter, Tony Wickham had falsely informed the IPC apprehended violence orders had been issued against Mr McEwan and his wife, that the police had been called to their neighborhood concerning issues involving them, that they had caused a neighbour to be fearful (in tears), and that the information had been withheld from Mr McEwan due to there existing a public safety risk emanating from him.
Mr McEwan correctly identified the requested information as Open Access Information Mandated for Release Free of Charge, and as such was able to be requested and released Informally. At the time Mr McEwan did not understand why Council had refused his Informal Application.
However, and fast forwarding to May 2019, Port Stephens Council would release a bundle of documents to Mr McEwan’s wife Ms Webb of NSW Freedom of Information, documents which detailed an unlawful agreement between Council’s Governance Manager Tony Wickham and a member of the public, an agreement specifically crafted to protect and conceal the open access information, the Objecting Submissions.
In this instance the documents record Tony Wickham suggesting the use of the GIPA Act 2009 Section 14 Table 3(f) Clause, which refers to serious harm, harassment, or serious intimidation as a reason to withhold any kind of document. It should be noted Mr McEwan had and has not ever acted in such fashion towards any person.
In fact in separate proceedings in 2021 an NCAT Senior Member would decide Council’s continued claims Mr McEwan posed a threat to public safety were so ludicrous that “there was not a scintilla of evidence” to support such a claim (at p160).
Port Stephens Council would go on to use the GIPA Act 2009 Section 14 Table 3(f) Clause in excess of (270) two hundred and seventy times, to obstruct legitimate access to predominately Open Access Information Mandated for Release Free of Charge, that Mr McEwan and Ms Webb would be aware of. In excess of two hundred and seventy times. Of course, there could be more. With the realisation some years after the horrid events before the Tribunal’s Stephen Montgomery in 2017, which saw his decision make reference to Mr McEwan with words such as ‘intimidatory conduct’ and ‘molestation’, and further reference to the Crimes, Domestic and Personal Violence Act 2007, the unbelievable realisation Port Stephens Council had willingly provided false and misleading information firstly to the IPC, and then to the NCAT, in February 2022 Mr McEwan lodged a Miscellaneous Application for Revoking of Mr Montgomery’s Orders.
Mr McEwan believed sufficient time had passed, and the new evidence would support, such that the protected NCAT files and confidential aspects of the hearing before Mr Montgomery should now be made public. As such Mr McEwan filed his Miscellaneous Application for the Revoking of the Orders in good faith.
Carlo Zoppo of Lindsay Taylor Lawyers put forward powerful arguments and won the case for Council, leaving the Sections 64 (1) & 49 (2) Orders remaining solidly in place. With a self-professed over (20) twenty years of legal experience and a legal and administrative team behind him, Carlo Zoppo should have won against Mr McEwan who stood alone.
Any reasonable person would agree there was too much at stake for both the NCAT and Port Stephens Council to allow Mr McEwan to succeed in his Miscellaneous Application.
Firstly, Council could not risk exposing its Tony Wickham and Lisa Marshall to impending criminal charges for at minimum numerous acts of perjury, perverting the course of justice, not to mention abuse of public office.
Secondly, the NCAT did not want to deal with the fact an Agency Corporate Policeman had falsified claims against a member of the public due to an unlawful agreement between he and a member of the public, conduct which effectively managed to hoodwink an experienced Senior Member of the NCAT to the detriment of an unrepresented member of the public.
Thirdly, no person would expect the NCAT to want the full nature of Mr Montgomery’s mismanagement and denial of procedural fairness within the matter to be made public and open to scrutiny.
The legal ramifications of finding a Senior Member of the NCAT had been so negligent, and a NSW Government Governance Manager and Government Solicitor had acted unlawfully, are likely unfathomable, and at minimum may have facilitated every of one of Mr Montgomery’s cases to be reopened, costing the public hundreds upon hundreds of thousands of dollars within a Parliamentary Inquiry. And fourthly, those members of the public who provided all the so-called damning evidence against Mr McEwan, the indisputable records that would prove his guilt, had to be protected at all costs, if only to ensure Mr McEwan would not seek out the authors for answers. Council documents, however, would take another twist, when Council would respond to a separate request for information, disclosing it had not sought the consent of any third party to include any of their records in any of the NCAT proceedings. So the actions of Port Stephens Council and its solicitor Carlo Zoppo of Lindsay Taylor Lawyers included covering up the fact Tony Wickham and Lisa Marshall had taken records out of the Council repository and provided them to the NCAT, as "evidence" of Mr McEwan's risk to public safety, without the authors' consent or knowledge. But the fact is there never was any damning evidence against Mr McEwan. It was all founded on the unlawful agreement initiated by Council's Tony Wickham. This is why the Tribunal's Senior Member Durack stated during the Appeal of the Montgomery matter after reading the so-called incriminating documents "they (the authors) haven't claimed any risk of harm, they just don't want them to have the documents (the objecting submissions)."
Fast forward again, this time to May 2022 and having succeeded in defeating Mr McEwan’s Miscellaneous Application, Council lodged an Application for Costs with the NCAT, which was successful.
The 2022 case lost by Mr McEwan was appealed, however he also lost on that occasion. Mr McEwan was not legally represented, with his wife Telina Webb acting as his Agent.
Port Stephens Council thereafter succeeding in the Appeal, lodged a secondary Application for Costs.
On the secondary Application, however, Council did not succeed.
With the first Tribunal Member agreeing Council had completely satisfied the parameters of what constituted the special circumstances warranting the granting of the Application for Costs, the secondary Tribunal Member decision-makers completely disagreed.
It should be noted the same arguments were put forward by Carlo Zoppo of Lindsay Taylor Lawyers, perhaps even stronger arguments the second time around given the loss of the Miscellaneous Application by Mr McEwan and that Costs had been awarded against him.
But the Appeal Panel of the NCAT did not agree with the former NCAT Tribunal Member on the issue of awarding costs.
Such are the inconsistencies the public has come to expect from the NSW Civil & Administrative Tribunal.
It should be noted there is one difference however between the (2) two Costs Applications determined by the NCAT in these interconnected cases: The first Tribunal Member did not comply with the NCAT Act 2013 Section 50 (3) (a) & (b). The Tribunal Member neglected to give the parties, to give Mr McEwan, the opportunity to make any submissions dispensing with a hearing. That hearing was to determine the Application for Costs. In this case the Tribunal Member went ahead of her own volition, determining the Application for Costs in chambers.
The second Tribunal Members, an Appeal Panel, did comply with the NCAT Act 2013 Section 50 (3) (a) & (b). The Appeal Panel did give the parties, did give Mr McEwan, the opportunity to make any submissions dispensing with a hearing.
So where does this leave people like Mr McEwan who have been denied procedural fairness by the Tribunal, in this case the legislated opportunity to make submissions on whether or not they agree to the Tribunal's Decision being made without a formal hearing?
In Mr McEwan’s case, it has left him totally vulnerable to a NSW Government Agency now proven to blatantly ratify legislation, proven to falsify documents to the detriment of the public and to influence key governmental decision-makers, proven to file false and misleading Statements and Submissions with the NSW Judiciary, seeing Port Stephens Council running to the NSW Supreme Court to secure a Costs Assessor, when it knows full well procedural fairness has been withheld from the Respondent to the Costs Application being Mr McEwan.
Again, Mr McEwan was not legally represented, is not legally trained, and is not legally qualified. He faced a powerful, richly-resourced adversary who was willing to spend huge amounts of scarce public monies to achieve its objectives, and he rightfully expected the NCAT to do everything in its power to ensure he would not be disadvantaged in any way.
There is nothing in any of the gross professional misconduct, if not unlawful actions, of the Port Stephens Council Governance Manager Tony Leslie Wickham and Head of Legal Services Lisa Helene Marshall, that aligns with the Council’s Code of Conduct, particularly the Guiding Principle of Council which mandates Council to act fairly, ethically and without bias in the interests of the local community. The Code of Conduct is mandated under the NSW Local Government Act 1993 Section 440. It is not an option. It is the law, and the public rightfully relies on that law.
However, when one realises Tony Wickham as Governance Manager, also holds the parallel conflicting positions of Code of Conduct Coordinator, Complaints Handling Manager, Right to Information Officer, Privacy Officer, and Joint Custodian of Secondary Employment, it is easy to form the view that Tony Wickham sees himself not accountable to anyone whilst juggling his numerous conflicting roles and controlling every one of Council's responses to every kind of inquiry.
It is easy to see who is holding the Council reigns and who is the nominated fire wall. No report, no complaint, no request for information, gets past Tony Wickham. He has put that in writing. And he is the one approving Planning Officer secondary employment where staff operate consultative town planning businesses in parallel to their Council duties.
Port Stephens Council is on the record being financially broken. A recent email to a member of the public from a Senior staff member disclosed Council has a shortfall of approximately $85m over the next ten years. This explains why Council is currently hopeful of a Rate Rise approval from iPART, to be effectively passed on to already struggling Shire residents.
And yet Council continues to engage the likes of Lindsay Taylor Lawyers when it has several in-house solicitors at its disposal.
Council has disclosed it did not undertake any Competitive Legal Services Tendering process for the McEwan Miscellaneous Application matter(s), where individual case estimates are submitted from all nominated legal service competitors as well as Council’s in-house legal staff in order to ensure the public monies in its trust get the best value possible.
As such the legal costs accumulated by Lindsay Taylor Lawyers against Mr McEwan were completely unnecessary and avoidable, and must be considered for what they are, deliberately accrued to be punitive, particularly when Council staff were notably logged in to the NCAT's Virtual Hearings.
Council evidently engaged Lindsay Taylor Lawyers without hesitation. And why not? Carlo Zoppo does know so much about Council’s preferred methodologies for responding to the public it serves. He knows so many of Council's dirty secrets and all the actors. There is no question of the willingness of Lindsay Taylor Lawyers to fight very hard in order for Council to succeed in its objectives. And there can be no mistake there is a fortune to be made in doing so.
How could any court make an order of judgement in favour of this Agency when it, the court, is aware procedural fairness has not been afforded to the target of that judgement order, repeatedly and by the same erring judiciary being the NSW Civil and Administrative Tribunal?
The court would be justified in determining Council should have appealed the Costs Determination with NCAT before proceeding further, because of the clear error in law and denial of procedural fairness at first instance.
NSW Freedom of Information will continue to follow this story and publish the outcomes for the greater public interest in how our current judicial processes are failing those most vulnerable, and how misbehaving NSW Government Agencies are clinking their canteen flutes in applause as a result.
Contact:
Paul McEwan, 0405 649 496 Tony Wickham, 0408 497 649 Lisa Marshall, 0408 978 884 Carlo Zoppo, 0410 451 736