Lawyers’ Picnic: NCAT fails to protect whistleblower in case against NSW Health

by Rex Patrick | Sep 14, 2023 | Government, Latest Posts

The NSW Civil and Administrative Tribunal (NCAT) chose to protect the legal fraternity over a NSW Health whistleblower left untrained and anxious at the tribunal bar table. Blowing the whistle cost her dearly, Rex Patrick reports.

Sally, not her real name, was a senior Human Resource (HR) manager inside the NSW Health System. She had worked in HR since 2015 with NSW Health and had an exemplary record.

But there were things adrift in her work area.

In May 2022, after some informal discussion with her CEO and careful consideration, Sally lodged a formal complaint against her immediate superior that raised allegations of corruption and workplace practices inconsistent with NSW Health policy that were having an effect on the broader workforce.

After a preliminary review was carried out, NSW Heath advised Sally that the review had identified a number of recommendations for improvements but had concluded that there was insufficient evidence for any claims of misconduct or potential breaches of policy/legislation.

Sally did not accept their view to not proceed to a formal investigation of her concerns and, with some conviction, resigned her position with NSW Health. Relevant to what happened next, the whole affair went on to cause her anxiety for which she sought professional help.

Tribunal, an inexpensive place to resolve disputes. In theory.

It’s not until the Government makes a bad decision that affects you personally that you pay attention to the various tribunals around the country that are intended to allow you to let you argue your case. In the Federal domain, it’s the Administrative Appeals Tribunal (AAT). In New South Wales, it’s the NSW Civil and Administrative Tribunal (NCAT). In Queensland its QCAT, in South Australia it’s SACAT and in Victoria it’s VCAT.

The legislation that sets up these tribunals is similar in each jurisdiction. In NSW the Civil and Administrative Tribunal Act states that NCAT is set up to allow citizens to resolve disputes with Government, in a way that is “accessible and responsive to the needs of all of its users”. It is there “to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible”.

The starting point at NCAT is that lawyers need not show up. NCAT’s website says

NCAT encourages you to run your own case without needing a lawyer or other representative.

“This provides a low cost, accessible and efficient means of resolving your dispute.”

It sounds good in theory until one looks into the legislation and finds that Government are permitted to use a lawyer – and they always do. Taxpayers foot the bill, so bureaucrats can hire all the legal firepower they need and much more.

Lay tribunal applicants can engage help. The NCAT website says, “A request for representation can be made in writing at any stage during the proceedings or in person at the hearing. A representative may be a legal practitioner, real estate agent, strata managing agent, an advocate, or friend or relative with authorisation to act on your behalf.”

GIPA application

All too often investigations into senior management result in a finding of “nothing to see here”. The RoboDebt inquiry has given Australian’s great insight into how things can work at the highest levels of the public service, and it’s not a pretty picture.

Robodebt Cancer – has our public service become the secret service?

That’s what Sally found, too.

She wanted to find out about the actual outcomes of the review and so lodged a ‘GIPA’ (Government Information Public Access) application, the NSW equivalent of a Freedom of Information (FOI) request. She wanted to find out for her own benefit, but also with the view that keeping investigations into senior officials secret erodes other employees’ confidence in being able to make future complaints against management.

In response to Sally’s request, she received almost completely redacted material. At that point she contacted me, someone who takes on Government secrecy claims as a daily activity. I don’t normally jump in halfway through someone else’s FOI, but seeing the circumstances of the case, I offered to help – pointing out I wasn’t a lawyer. I charged a small fee to assist her in drafting submissions she made to NSW Health, which ultimately saw more information released to Sally, but the core details were still kept secret.

NCAT representation denied

Sally decided to take the matter to NCAT. I agreed to help her with her submissions, Sally also revealed to me the mental health effects of her ordeal with NSW Health, so I also agreed to represent her.

But it wasn’t that easy.

In late May, NACT Principal Member Theresa Simon refused me permission to represent Sally. In her formal decision her major concern was that I was not a lawyer. She cited NSW Supreme Court decision that dealt with non-lawyers appearing before a court.

It was as though she had not read the NSW Civil and Administrative Tribunal Act, nor NCAT’s website, which differentiates NCAT from a Court. She inferred in her decision that Sally, unemployed, ought to just to get a lawyer.

Sally appealed the decision. The NCAT Appeal Panel denied her permission to appeal, but Principal Member Aaron Suthers agreed to rehear the matter. Sally used the opportunity to explain her medical based inability to self-represent because the matter related to the very cause of her anxiety, tendering a report from a psychiatrist, explained my experience in FOI, explained that – in response to Ms Simon’s decision – I had agreed to not charge her, and that she absolutely understood that I was not a lawyer.

In parallel to all of this, on account of the robust nature of Sally’s submissions, NSW Health had engaged a commercial law firm and barrister to ensure absolute secrecy was preserved.

Sally pointed out to Suthers that a decision to refuse my representing her would leave her totally outgunned.

When justice does not prevail

Suthers handed down his decision on whether I, an FOI specialist, could help Sally. He laid out a range of reasons why I should represent her, and why I shouldn’t.

In amongst the reasons I shouldn’t represent Sally, remembering that NCAT advertises you can be represented by a friend, he considered “the unavailability of disciplinary measures and lack of a duty to the Tribunal owed by Mr Patrick, that Mr Patrick owes no duty to [NSW Health]” and that “Mr Patrick owes no duty to [Sally].”

A dogmatic belief that only lawyers should be allowed to help citizens shone through.

In relation to the cost of Sally engaging a layer he said, “The submission suggested that the appellant understands that anyone engaging a lawyer would rarely walk away from proceedings (particularly in a jurisdiction where adverse cost orders cannot normally be sought to recover costs) with under $20,000 of costs. Indeed, [in] anything other than the simplest of cases, the cost will be significantly more.” The source of that understanding was not revealed.

Clearly, Mr Suthers is totally oblivious to the cost of engaging a lawyer on any matter that goes to a hearing. Or perhaps he’s completely aware, but his sympathies go with the lawyer’s tribe.

And finally, in circumstances where the NCAT enabling legislation sets up the Tribunal to be “accessible and responsive to the needs of all of its users” and resolve issue “cheaply,” Suthers made this remark: “I cannot infer from the fact the appellant is currently unemployed that she cannot afford legal representation.”

In circumstances where Sally was suffering from anxiety and had assured the Tribunal that she could not represent herself without causing herself harm, Suthers concluded that it was

in the interests of justice to force her to stand at the bar table and argue a complex FOI case against NSW Health’s two lawyers and barrister.

I can’t imagine anyone, other than some lawyers, that would suggest this was a fair and sensible outcome. She had an option to address the disparity, but this option was not to be allowed.

I’d like to tell you that there was a happy ending to all of this, but Sally withdrew her application. Justice was denied, but the lawyers can sleep easy.

Shame on NCAT. And shame on NSW Government and Parliament for allowing a lawyers’ club to throttle one of very few avenues through which citizens might defend their rights and pursue their interests without being bled white.

Epilogue

I have now personally sought access to the same documents that Sally was seeking. The stupidity about this case is that  I’ll soon be back in NCAT representing myself in relation to the documents. All NCAT did was cause stress for Sally.

Editors note: No lawyer has been or will be paid in relation to this story (other than the taxpayer funded lawyers and the barrister on NSW Health’s side).

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Rex Patrick is a former Senator for South Australia and earlier a submariner in the armed forces. Best known as an anti-corruption and transparency crusader - www.transparencywarrior.com.au.

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