Solicitor v Council of the Law Society of New South Wales [2013] NSWSC 921

Supreme Court New South Wales

Medium Neutral Citation

A Solicitor v Council of the Law Society of New South Wales [2013] NSWSC 921

Hearing Dates

9 July 2013

Decision Date

11/07/2013

Jurisdiction

Common Law

Before

Schmidt J

Decision

Application for stay granted.

Catchwords

PROCEDURE - appeal against decision of Council of Law Society - suspension of practising certificate - stay sought pending hearing of appeal - expedition of hearing - stay granted - reasons

Legislation Cited

Legal Profession Act 2004

Cases Cited

Doherty v The Law Society of New South Wales [2008] NSWCA 269
New South Wales Bar Association v Stevens [2003] NSWCA 95

Category

Procedural and other rulings

Parties

A Solicitor (Plaintiff)
Council of the Law Society of New South Wales (Defendant)

Representation

Solicitors:
Howard Simons, Remington & Co Solicitors (Plaintiff)
Louis Pierotti, Law Society of New South Wales (Defendant)

Counsel:
Mr GL Turner with Mr P Reynolds (Plaintiff)
Ms JS Gleeson SC (Defendant)

File Number(s)

2013/205134

Publication Restriction

None

Judgment

1By summons filed on 5 July 2013, the plaintiff Mr Berger, a 69 year old solicitor, appealed a decision made by the Council of the Law Society of New South Wales, under s 548 of the Legal Profession Act 2004, to suspend his practising certificate. On giving the usual undertaking as to damages, Mr Berger sought a stay of the Council's decision on the basis of further undertakings, pending the hearing of the appeal.

2At the hearing of the stay application on Tuesday afternoon, it was common ground between the parties that the Court had power to order such a stay . It was also common ground that the circumstances were such that the hearing of the appeal should be expedited. Steps were taken and directions made, so that the appeal can be heard on 19 July 2013.

3The Law Society still opposed the short stay which Mr Berger sought, despite the expedition granted; the reasons given for the Council's decision to suspend his practising certificate not having referred at all to Mr Berger's explanation for his admitted breaches of certain requirements of the Legal Profession Act; the steps he had taken to redress those breaches, which included repayment of all the funds which the Law Society considered he had misappropriated; and no finding having been made that Mr Berger had been dishonest.

4That position was maintained, notwithstanding the undertakings which he proffered to the Court as to the basis of a stay, undertakings which it was not disputed, were undertakings which might be imposed on Mr Berger, if the Law Society pursues the steps it has resolved to take, to make a complaint about him under s 504 of the Legal Profession Act.

5After hearing the parties I decided that the stay sought should be granted on the undertakings given. These are the reasons for that decision.

6The Law Society's decision to suspend Mr Berger's practising certificate was made under s 548 of the Legal Profession Act which provides:

"548 Immediate suspension of local practising certificate

(1) This section applies if the Commissioner or the relevant Council considers it necessary in the public interest to immediately suspend a local practising certificate on the ground of the seriousness of the conduct in respect of which a complaint has been made in relation to the holder of the certificate.

(2) The Council may immediately suspend the practising certificate. The Commissioner may direct the Council to immediately suspend the practising certificate, and, if so directed, the Council must immediately suspend the practising certificate.

(3) The suspension operates until the earliest of the following:

(a) the complaint is withdrawn or dismissed,

(b) the suspension is revoked,

(c) the subject-matter of the complaint is finally dealt with by the Tribunal,

(d) the suspension is successfully appealed.

(4) The Council must give written notice of the suspension to the holder of the practising certificate and that notice must:

(a) include an information notice about the suspension, and

(b) indicate the period of operation of the suspension as provided by subsection (3), and

(c) state that the practitioner may make representations about the suspension.

(5) The suspension takes effect on the day that notice of the suspension is given to the holder.

(6) The holder may make written representations to the Commissioner or the Council about the suspension, and the Commissioner or the Council must consider the representations.

(7) The Council may revoke the suspension at any time (unless the suspension was directed by the Commissioner). The Commissioner may at any time direct the Council to revoke the suspension (even if the suspension was not at the direction of the Commissioner).

(8) A decision to revoke a suspension need not be in response to any written representations made by the holder.

Note. Section 80 (Return of local practising certificate) provides for the Council to require the return of a local practising certificate that has been suspended."

7Affidavit evidence was given by Mr Berger and by Ms Groenewegen, a solicitor employed by the Law Society. Neither was required for cross-examination. It was Ms Groenewegen who outlined the process which the Law Society had pursued. Her evidence suggested that s 548 had not been entirely adhered to. In one respect that favoured Mr Berger, because he was given an opportunity to make representations to the Law Society, before the Council made its decision. There was no evidence, however, that those representations were put before the Council or were considered by it, in coming to its decision, although it was submitted for the Law Society that his representations had been put before the Council.

8At the time he was suspended Mr Berger, who was admitted to practice in March 1969, was practicing as sole principal of Milne Berry Berger, with the assistance of one employed solicitor, a conveyancer, a bookkeeper and other administrative staff. Mr Berger deposed that his ongoing practice there involved 400 active files, some 30 of which required certain attention.

9Mr Berger had formerly practised in partnership with Mr Harry Freedman and Ms Mittu Gopolan. That partnership was dissolved in June 2013, after a dispute which led, amongst other things, to an application by Mr Berger to this Court, to restrain a particular accountant from conducting an external examination of the partnership's accounts. Mr Berger obtained injunctive relief in those proceedings.

10On 29 May Ms Gopolan made a complaint about Mr Berger to the Law Society. Mr Berger was then in hospital. He was discharged on 4 June. On 19 June he was advised by the Law Society that a Law Society Inspector, Mr Sofiak, who had attended the offices of the partnership on 31 May, had made an adverse report about him as to his dealings with certain trust funds. He was invited to reply by no later than 25 June.

11On 21 June, Mr Berger sought an extension of time to respond and took steps to pay the sum in question, totalling some $205,258.86, into the partnership's trust account. He responded to Mr Sofiak's report on 25 June, disputing various factual matters, but acknowledging certain deficiencies. Mr Berger deposed that he had not had an adequate opportunity to respond in the timeframe.

12That evidence may well be accepted. Attached to Mr Sofiak's report was a letter addressed to Mr Berger, written by his former partners in terms adverse to Mr Berger. It was common ground in these proceedings that the letter had never been sent to Mr Berger. He disputes its factual basis.

13On 1 July the Council of the Law Society resolved:

"FURTHER RESOLVED that pursuant to the provisions of Section 504 of the Legal Profession Act 2004 ["the Act"], the following complaint be made against Victor Berger [ MN 1091] ["the Solicitor"]:

The Solicitor has misappropriated trust funds.

FURTHER RESOLVED that, pursuant to the provisions of section 548 of the Act, the Council considers that it is necessary in the public interest to immediately suspend the local practising certificate of the Solicitor on the ground of the seriousness of the conduct in respect of which complaints have been made against the Solicitor and determines to immediately suspend the local Practising Certificate of the Solicitor.

Reasons for Decision:

The Council, having regard to the contents of the report prepared by Mr Jim Sofiak and dated 17 June 2013, is of the opinion that the Solicitor has misappropriated client trust funds.

The nature of the Solicitor's alleged conduct is of such seriousness that the Council believes warrants the immediate cessation of the Solicitor's right to practice.

FURTHER RESOLVED that the Law Society Council:

1. is of the belief that one or more of the circumstances referred to in Section 615(d) of the Act exist in relation to the law practice known as Milne Berry Berger & Freedman [FN 18534] ("the law practice");

2. is aware that one of the principals of the law practice, Victor Berger [ MN 1091] has ceased to be an Australian legal practitioner; and

3. being of the belief set out in paragraph 1 and being aware as set out in paragraph 2 determines that, having regard to the interests of the clients of the law practice, external intervention is warranted.

FURTHER RESOLVED that the Law Society Council, being of the opinion that the appointment is necessary to protect the interests of clients in relation to trust property, determines, pursuant to the provisions of Section 616(2)(b)(ii) of the Act, to appoint Richard Gerard Flynn (MN 10053), Solicitor, as Manager of the law practice known as Milne Berry Berger & Freedman for a period of two years and at a remuneration of $250 per hour plus GST; and

1. the Chief Executive Officer and/or the Secretary of the Society and/or the Manager of the Professional Standards Department be authorised to act as necessary in the matter of instructing the Society's solicitor and to make any decision necessary for the implementation of the foregoing resolutions;

2. the Manager be requested to furnish his first report within one month; and

3. the Secretary of the Society be authorised to sign any Notice of Appointment pursuant to Section 624 of the Act'"

14In the short reasons given for the suspension decision, no reference was made to Mr Berger's explanation, or why it was considered inadequate.

15The complaints related only to two former clients. As to Mrs Domabyl, for whom Mr Berger had long held a power of attorney, for example, Mr Berger explained that while he had issued two costs disclosures, one to her in relation to the sale of a property and another after her death, to his co-executor, as to probate and administration of the estate, he had not issued such a disclosure in relation to other work undertaken for her, prior to her death. He deposed:

"31 At the time, I believed at the time that it was sufficient that:

a. Ms Domabyl and her family (and, after she passed away, the executors of her late estate, being an accountant - Michael Green - and I) knew that I was carrying out work on her behalf or on behalf of the late estate;

b. I issued an invoice or proposed invoice that set out in detail the work that had been carried out and that identified the fees that I proposed to charge, so as to provide the recipient with an opportunity to raise any objection that they had before the money was paid out."

16 Mr Berger explained how the sum of $154,000 came to be charged to the estate and funds transferred out of the estate, for those costs, before probate was granted, As to this he deposed:

"59 Prior to reading Mr Sofiak's report, I believed that I could transfer the funds in question from the trust account to office prior to grant of probate.

60 Having read Mr Sofiak's report, and having read the advice I procured, which sets out the preparation of sections 44 and 61 of the Probate and Administration Act 1989 (NSW) (Tab 3 page 407 - 414 of Exhibit VB-1), I now realise that , until probate has been granted:

a. The property of the estate is vested in the NSW Trustee pursuant to section 61;

b. Section 44(1) cannot take effect to validate any payments.

61 I did not realise these matters at the time and honestly believed that it was common and permissible practice to charge to a late estate debts of the deceased (including legal fees owing) and fees incurred in the administration of the estate prior to grant of probate. I do not have any intention to, and undertake not to, make any future payment from trust funds held for a late estate prior to grant of probate."

17This evidence was not challenged in cross-examination, but was submitted by the Law Society to be inconsistent with documents annexed to Mr Berger's own affidavit. In the result, it was submitted, his explanations as to his approach and beliefs would not be accepted and that it would be concluded that he had been dishonest in his dealings with the trust funds in issue.

18That was not a matter which fell to me to decide on the stay application, but it seemed to me that such dishonesty would be established was not a foregone conclusion, given all of the evidence.

19In Doherty v The Law Society of New South Wales [2008] NSWCA 269, McColl J was dealing with an appeal from James J's refusal of a stay of a decision to suspend a solicitor's practising certificate, pending appeal. She observed in relation to New South Wales Bar Association v Stevens [2003] NSWCA 95 at [31] :

"In that case Spigelman CJ (at [91]) (with whom Meagher and Sheller JJA agreed) emphasised authorities which indicated that the protection of the public was a matter entitled to significant weight on an application for a stay once it appeared a professional person had acted improperly to a substantial degree. His Honour referred with approval to Finn J's statement in Robb v Law Society of the Australian Capital Territory (Federal Court of Australia, Finn J, 21 June 1996, unreported):

"... it must remembered that this is not the usual instance of civil litigation in which the question is whether a reason is there to hold a successful party out of the benefit of a judgment obtained until the appeal is heard. Here Mr Robb's 'reason' must be considered, not in the context of a judgment giving a benefit to a litigant, but rather as one designedly made to protect both the public and the reputation of the profession.

The Supreme Court clearly regarded Mr Robb's professional misconduct as serious. Equally it found him to be ignorant of, or indifferent to, his fiduciary responsibilities. It is not for me to gainsay these conclusions.

Notwithstanding the appeal lodged, to allow Mr Robb a stay in the face of such findings would require the demonstration of a reason of some cogency. I do not consider that the prejudice asserted, given as I will indicate the prospect of its mitigation in some degree, outweighs the very distinct prejudice to the public interest which could be sustained if the stay were granted. ...

It is the case whenever an order for suspension is made and an appeal is lodged on arguable grounds, that the practitioner affected can assert that prejudice will be suffered if, the suspension having begun to run, the appeal is successful. This circumstance could not in my view justify, in effect, a stay as of right in all the circumstances. The decision to stay a suspension order subject to appeal on arguable grounds must in my view involve an instance specific question.

There is a variety of factors of which account can or should properly be taken when considering a stay in such cases. Among these are (i) the seriousness of the misconduct found; (ii) the likely prejudice to public confidence both in the integrity of the disciplinary processes themselves and in the reputation of the profession if the practitioner is granted a stay; (iii) the means available to mitigate the prejudice alleged; and (iv) the expedition with which the appeal can be heard."

20McColl J accepted at [32] that the prospect of the mitigation of the order suspending the practising certificate by other conditions being imposed, also had to be considered. In this case that was addressed by the undertakings to the Court proposed by Mr Berger as to retention of an accountant approved by the Law Society, the furnishing of reports as to his compliance with statutory and regulatory requirements; the pursuit of a costs assessment in respect of work undertaken for Ms Domabyl; undertaking a course in Trust Accounting and Ethics; and participation in a Senior Solicitor's programme and mentoring by a senior solicitor nominated by the Law Society.

21McColl J was convinced to grant the stay sought in Doherty, explaining at [35]:

"I am acutely conscious of the public interest in members of the legal profession faithfully discharging their obligations in relation to trust accounts. However I am also conscious of the fact that in this case, unlike for example in Robb, no finding has yet been made that the applicant has been guilty of professional misconduct. The proceedings are at a very early stage. The power conferred by s 548 is one available to be exercised in such circumstances. However the factors which troubled James J in his second judgment concerning the isolated nature of the transaction also trouble me. I am also conscious of the fact that before James J, the Law Society was prepared to entertain the proposition that the applicant be allowed to practice as an employed solicitor, a proposition from which it has since resiled."

22On all of the evidence in this case, I was also satisfied that Mr Berger's appeal was not hopeless and that he had established a basis for a stay on the undertakings which he proposed, for the short period prior to the hearing on 19 July.

23This was because I was not satisfied, on Mr Berger's unchallenged evidence, that a finding of dishonesty or misappropriation would necessarily be made against him, notwithstanding his admitted breaches of the Legal Profession Act.

24It was common ground that despite the absence of a costs disclosure document, he could have sought payment of the costs in question under the cost assessment regime provided by the Legal Profession Act.

25On the undisputed evidence as to the attitude of those who had responsibility for Ms Domabyl's affairs prior to her death and the close involvement of her family members, there does not appear to have been any dispute about Mr Berger's costs. Those who had responsibility for payment of the costs afterwards, out of the estate, who included his co-executor, also appear not to have had any dispute about those costs. In the result, it seemed to me, that it had to be concluded that Mr Berger has an arguable case on appeal.

26Further, the evidence was such that it must be concluded that given the harsh consequences of the exercise of its s 548 power by the Law Society, which in the circumstances appears to be that Mr Berger's practice and livelihood will be brought to an abrupt end, notwithstanding steps taken to repay the sums in issue, pending determination of the matters raised against him, that the balance of convenience clearly lay with granting the stay for the short period until his appeal has been determined.

27It was for those reasons that I made the order staying the Council's suspension of Mr Berger's practising certificate, on the basis of the undertakings given to the Court, pending further order of the Court.

**********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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Lateline/ Atrocious Aged Care/

Any complaints made to Government Departments would be fucked over and only 20% of complaints about aged health care made to the Commonwealth Ombudsman are investigated with most of them being fucked over.

Section 15 of the Ombudsmans requires the Commonwealth Ombudsman to report systemic corrupt conduct or severe abuse to the relevant minister but this is very rarely done because the skanks at the Commonwealth Ombudsman protect the Government Departments.
After the Commonwealth Ombudsman Allan Asher ripped his skirt off and resigned, the Deputy Ombudsman the Fat skank Alison Larkins acted in this position . This scrubber had been in Aged Health care and she would have been aware of the atrocious conditions though failed to recommend that improvements be made.
The present Ombudsman Colin Neave has been the Banking Industry Ombudsman and has brought with him the same systemic corrupt conduct he was involved in when he was the banking industry Ombudsman.....
Look at the Commonwealth Ombudsmans statistics!!!!

Mistreated nursing home residents 'better off in a concentration camp'

Lateline

By Margot O'Neill, staff

Updated 1 hour 57 minutes ago

Video: Families describe disturbing state of Australia's nursing homes(Lateline)

Map: Australia

Traumatised relatives have raised shocking claims that their loved ones were left to die unnecessarily or in great pain because of a critical lack of staff and training in nursing homes.

The ABC's Lateline program has spoken to many people about their loved ones' experiences in nursing homes across Australia.
Their complaints include relatives being left in faeces and urine, rough treatment, poor nutrition, inadequate pain relief, verbal abuse, and untreated broken bones and infections.
And one woman has told the ABC that her grandmother, who survived Nazi concentration camps, believes her experiences in aged care are worse than her wartime ordeal.

Relative details litany of abuse, neglect by untrained staff

Jane Green's mother Margaret McEvoy, a former nurse and foster carer, died last year after spending time in a Victorian nursing home.
Ms Green says over-worked and under-trained staff were not giving medication properly and were leaving Ms McEvoy to wet herself because no-one was available to take her to the toilet.
Ms Green says her mother also complained of being constantly hungry, and suffering abuse by staff members.

What do you think of the state of Australia's nursing homes? Leave a comment.

Would you like to talk to the ABC? Share your stories.

"The staff member called her a spoilt brat and a princess and [said] that she always wanted to get her own way," Ms Green told Lateline.
"She became very shut down ... it was like seeing someone who had the stuffing knocked out of them.
"When I would leave on Friday nights, she would look at me and just say to me 'I'm all right', and I knew she was just trying to be brave."

Photo: Margaret McEvoy (Lateline)

Ms Green says her mother was in great pain, but staff believed she was simply attention-seeking.
"I witnessed mum screaming in front of them and they still did not see that as being pain," she told Lateline.
For five days, staff tried to make Ms McEvoy walk. In fact, she had an undiagnosed broken thigh bone, a raging infection, and severe dehydration.
Ms Green, who is also a nurse, had to fight to get her mother taken to hospital, where she was immediately put into palliative care. She died six weeks later.

Other families back up abuse claims at the same nursing home

When I would leave on Friday nights, she would look at me and just say to me 'I'm all right', and I knew she was just trying to be brave.

Jane Green

Ms Green has since spoken to a former staff member and other families with relatives in the same nursing home.
They told her other elderly residents were also abused.
One incapacitated man had urine-soaked sheets thrown at him, while a woman was left crying out with abdominal pain. She later died with a gangrenous gall bladder.
Senator Jacinta Collins, Minister for Mental Health and Ageing, says the stories of mistreatment are very concerning.
"Concerns about shortages and workforce issues are very important matters as well," she told Lateline.

Video: Minister says Labor has 10-year plan to improve aged care services(Lateline)

"They informed the Government's recent response, the legislation that went through to the Senate in the last sitting week, for living longer, living better, because we know we need to increase the training, we know we need to establish a more stable workforce in aged care, and we know that there are limited numbers of specialists.
"This is why the Labor government has a 10-year plan to improve the supply of services to meet the future demand. We've had shortages in aged care in Australia for way too long."

Wartime survivor 'better off in a concentration camp'

The shocking stories from the Victorian nursing home are not uncommon.
Mardi Walker's 91-year-old grandmother Paula Javurek was in a New South Wales nursing home that was supposed to deliver high care.
The nurse and health care lecturer was horrified when she found her grandmother with exposed raw ear cartilage due to lack of turning, and one of her arms immobilised after staff botched injections.
"They would just keep injecting into the same spot and she would scream. My mother said it was horrific, because she would scream," Ms Walker said.

Corruption Barometer puts spotlight on open, transparent government

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TI Corruption Barometer puts spotlight on open, transparent government Posted: 11 Jul 2013 05:24 AM PDT The Transparency International Global Corruption Barometer 2013 reports on public perceptions of corruption in 107 countries.  Results for Australia are based on a survey (prior to March 2013) of 1200 people and includes ratings of institutions as corrupt/extremely corrupt. Should we be surprised? Political Parties 58% Media 58% ( Only four countries gave corruption in the media a high rating-Australia, Egypt, New Zealand and United Kingdom.) Business 47% Religious bodies 44% ( But least corrupt in worldwide rankings.)  Judiciary 36% (Third worldwide) Parliament/Legislature 36% (Fourth worldwide) Public officials and civil servants 35% (Fifth worldwide) Police 33% ( Second worldwide) We aren't alone on concern about political parties. Globally, "the driving forces of democracy, are perceived to be the most corrupt institutions."  But Australians put the media and religious bodies way up the list compared to global rankings. And public office holders - judiciary, parliament, public servants and the police - lower down the scale than most others. However, it's hardly reassuring that more than 1 in 3 rate the parliament and public servants as corrupt.  (NSW developments of course would have clouded the picture.) And then there's the judiciary! Five per cent report paying a bribe in the last 12 months.That's remarkable, or I'm showing my innocence or ignorance. In 88 countries the majority of those surveyed consider their government to be ineffective in addressing corruption. Recommendations in the report won't surprise. They include making integrity and trust the founding principles of public institutions and services with transparency at the top of the list. (Separately a recent study shows freedom of information laws work to reduce corruption over time, although they are not a quick fix.) So as we head into pre-election or high election mode, some reflections on recent developments and inaction. I'm sure these factors don't impact overly on public perceptions.  But you can only speculate about the influence of a more positive, comprehensive embrace of an openness, transparency, accountability and integrity agenda: The Federal Parliament has just voted to exclude the parliamentary departments from the Freedom of Information Act, and none of the state parliaments other than Tasmania are covered by state FOI law. Dr Hawke's report on review of the Freedom of Information Act is yet to appear in public, and may or may not suggest changes that could see Australian FOI law move up from the current ranking of 48 of 93 countries surveyed.  Despite undertakings by former Prime Minister Gillard in 2010, we don't have a Parliamentary Integrity Commissioner. Legislation proposed by The Greens Adam Bandt. in May 2012 to create  the National Office of Integrity Commissioner, comprising three elements—the National Integrity Commission, the existing Australian Commission for Law Enforcement Integrity (ACLEI) and a new Office of the Independent Parliamentary Advisor - got nowhere. Similarly a Code of Conduct for Federal parliamentarians. Opposition backbencher Steven Ciobo told Parliament these sort of feel good things are a waste of time: "The reason that there is still behaviour that people frown upon is that, fundamentally, it comes down to individual choice. Simply adding one more document to a pile of documents and simply having one additional public servant called an integrity commissioner is not going to change a thing. Anyone who believes that it will is delusional. It has not changed things in other jurisdictions. It is not as if in the United Kingdom or in the state of Queensland, where these types of vehicles exist, there is this great love of the parliament or towards parliamentarians. No. The same problems exist in those jurisdictions. This is nothing more than a feel-good exercise that will deliver no net tangible benefit whatsoever." The Government has been thinking and consulting about a National Anti Corruption Plan since 2011. It says it is "giving detailed consideration" to it all but we have nothing to show so far despite obligations under the UN Convention Against Corruption ratified by Australia on 7 December 2005. Political donation and lobbying laws are weak and reform efforts in recent years amounted to nothing. Silence on the Australian Law Reform Commission recommendation five years ago that the exemption for political parties from the Privacy Act should be removed. ("In the interests of promoting public confidence in the political process, those who exercise or seek power in government should adhere to the principles and practices that are required of the wider community..") Yes, yes i know good whistleblower protection legislation did pass in the dying days of the last parliamentary sitting after Attorney General Dreyfus rescued the bill from years in the too hard bin. Bearing all this in mind, we wait to hear what the Government or the Attorney General's Department has to say about a National Action Plan, required by our membership of the Open Government Partnership, with transparency and accountability the touchstone to improving the way our democracy operates.

Parliamentarians travel reminds of gap in transparency standard. Posted: 10 Jul 2013 10:31 PM PDT Overseas travel by parliamentarians at taxpayers expense is no state secret.  So details of 'study tours' by the soon to retire Senator Crossin and Simon Crean (each accompanied by spouse) are out there, and costs will eventually appear on the website at the Department of Finance which pays for these and other entitlements of members and senators.  The Prime Minister when asked, said the rules regarding travel may need "sharpening up." Hmm. Wonder whether he noticed that the transparency and accountability standard for payments to, for or on behalf of parliamentarians by the parliamentary departments has just been dulled to indecipherable?  Just a few weeks ago, when Mr Rudd was on the backbench the Government and Opposition combined to legislate a blanket exemption for those departments from the Freedom of Information Act. Not just payments to or for parliamentarians are beyond reach of FOI. So too are all documents concerning the operation of the three departments which receive a budget allocation of around $170 million. For the record entitlements paid by the parliamentary departments according to the fine print of the handbook include salaries ($185,000 per year) and electorate allowances (between $32000 and $46000); additional salaries for parliamentary office holders; superannuation; resettlement allowance payable to some who retire or lose a seat after short tenure; services and facilities to support parliamentarians in Parliament House including office accommodation, computing and other equipment, telephones, newspapers and stationery, $1800 in postage for parliamentary or electorate purposes (from $40,000 administered by Finance) and IT equipment and facilities and administration of IT in electorate offices. Oh, and the cost of travel as a member of a delegation to conferences of the Commonwealth Parliamentary Association (CPA) and Inter- Parliamentary Union (IPU). Then there are support costs for office holders such as the Speaker and President of the Senate. The brief FOI window that opened on the parliament revealed former speaker Peter Slipper spent $1248 on coat and tails and $8500 on catering, among other necessities. As to transparency about payments to parliamentarians by the state parliaments, don't ask.

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Commonwealth Ombudsman Annual reports/ Veronique Ingram/ Adam Toma 

Following is the Annual Reports of the Commonwealth Ombudsman.
In the past financial year there has been a 16% increase in complaints.
This is largely due to the skonky staff  at the Commonwealth Ombudsman fucking over complaints and protecting systemic corrupt conduct in Government departments. This corrupt conduct is also protected by Steven Sedgewick who is the fucker at the Australian Public Service Commission.
Veronique Ingram, Inspector General in Bankruptcy and Adam Toma Enforcement Manager at ITSA has also requested the Federal police to protect  systemic corrupt conduct in the Bankruptcy System

Annual reports

Annual Report 2011 - 2012

Our office finalised 40,477 approaches and complaints, up from 38,957 last year. Of these, 23,317 were within jurisdiction, compared to 19,903 in 2010-11, a 16% increase.
We also published five formal reports across a diverse range of areas, from biosecurity to Income-Management decision making in remote Northern Territory Indigenous communities. The majority of our recommendations were accepted by agencies in full and commitments made in others. We prepared nine submissions to Parliamentary committees, including on language learning in Indigenous communities, cybercrime and immigration detention. And we made four submissions to government inquiries.
In 2011-12, the office took on a further three functions: oversighting the Fair Work Building and Construction's use of coercive examination powers; investigating complaints about aircraft noise arising from Super Hornets' operations at RAAF Base Amberley; and the role of Norfolk Island Ombudsman.
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Agency Statistics Tables (Excel spreadsheet)

Annual Report 2010 - 2011

During 2010-11 the number of approaches and complaints to our office continued to grow, reaching almost 39,000, a four per cent increase on the previous year. Of these, 51 per cent were considered complaints within our jurisdiction. We investigated 4468 separate complaints during the year, roughly the same as last year.
We also published 13 formal reports across a diverse range of areas. Ninety per cent of our recommendations were accepted by agencies in full and a further nine per cent in part. We completed 37 inspections across 17 different agencies, at the Commonwealth and the state and territory levels. Our inspection work in relation to the use of certain covert and coercive powers continues to provide an important assurance to the Parliament.
Our responsibilities continue to expand. We gained the new function of Overseas Students Ombudsman in April 2011, and expect to soon become the Norfolk Island Ombudsman.
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Annual Report 2009 - 2010

Nearly 38,000 approaches and complaints were received by the office of the Commonwealth Ombudsman for assistance during 2009-10, an 18% decrease from the previous year. The report explains that despite this decrease, there were still 4,489 complaints investigated, with remedies found for complainants in 71% of these cases. There was also an increase in the number of agencies about which the office received complaints, up 30 to 150 government agencies for 2009-10. The office continued its efforts to find solutions and fix problems in government administration, publishing 19 ‘own motion’ reports and providing submissions to 11 parliamentary inquiries or reviews. The report goes on to highlight the year as one of change and renewal, with the departure of the Ombudsman and both Deputy Ombudsmen to new government statutory appointments, and the commencement of Mr Allan Asher as the 8th Commonwealth Ombudsman in August 2010.
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Annual Report 2008 - 2009

Two hundred years on from the creation of the first ombudsman in Sweden in 1809, the need for an independent ‘watchdog’ to safeguard citizens in their dealings with government is more relevant than ever, with almost 46,000 people contacting the Commonwealth Ombudsman during the past year.
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Annual Report 2007 - 2008

Nearly 40,000 people contacted the office of the Commonwealth Ombudsman for assistance during 2007 - 08; a 20% increase on the previous year. This report highlights the importance attached by the Ombudsman’s office to providing an appropriate remedy to a complainant and draws out the themes in the year’s work by pointing to the broader lessons that a single complaint or problem can teach. The office conducted or initiated a record number of own motion investigations during the year.
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Annual Report 2006 - 2007

This is the 30th annual report of the Commonwealth Ombudsman. A special theme of this report is the changes that have occurred in the office since it was established in July 1977.
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Annual Report 2005 - 2006

This annual report contains many examples of the constant growth, adaptation and maturation of the office.
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Annual Report 2004 - 2005

During the year we completed five own motion and major investigations, with all Ombudsman recommendations being accepted by agencies.
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Annual Report 2003 - 2004

The Ombudsman's Office received increased funding to establish new roles, expand delivery of Ombudsman services in regional and remote areas, and improve oversight of surveillance devices.
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ITSA's Enforcement Functions/ Adam Toma/ Veronique Ingram 1.4 Enforcement functions Up one level Jump to: ITSA enforcement policies and procedures manual ... Introduction1. ITSA enforcement 1.1 Purpose 1.2 Vision 1.3 Values and code of conduct 1.4 Enforcement functions 2. Fraud allegations 2.1 Referral of allegations 2.2 Referral of non-Bankruptcy Act allegations 3. Investigation 3.1 Investigation principles 3.2 Investigation policy 3.3 Investigation practices 3.4 Investigation plans 4 Infringement notice regime 4.1 Offences covered by the infringement notice scheme 4.2 Issuing an infringement notice 5 Case management 5.1 Referrals to the Australian Federal Police 5.2 Referral to other agencies 6 Maintenance of professional standards 6.1 Qualifications Next Previous Enforcement is not responsible for the actual instigation of prosecution actions. This function is the responsibility of the Commonwealth Director of Public Prosecutions (CDPP). Enforcement is responsible for carrying out the investigatory work associated with potential prosecution cases and the promotion of the overall aims and objectives of ITSA in relation to the detection, investigation and prevention of bankruptcy-related offences. Enforcement has the following functions: to develop and implement strategies that deliver Enforcement services in accordance with ITSA’s Strategic Plan; Breaches of the bankruptcy Act are fucked over because of Mathew Osborne advises trustee's that they have discretion to fuck them over!!! to identify potential cases for prosecution by the CDPP; Matthew Osborne advises trustees how to protect offences against the Bankruptcy Act to gather evidence for cases identified for potential prosecution; ..... wHAT SHIT!!!! to prepare briefs of evidence for referral to the CDPP; How Funny!!!! to liaise with the CDPP both generally and in relation to specific prosecution actions or legal advice; to give evidence in Court; How Funny!!!!! to provide advice, assistance, appropriate information and training to internal and external clients and stakeholders in relation to offence investigation matters; Talk to the Legal Officer Matthew Osborne and get his advice on how to protect bankrupts from prosecution!!!!! to provide recommendations to ITSA’s Legal and Executive Support unit with regard to the operation of the Bankruptcy Act 1966 and to identify other fraud prevention measures and procedures to ensure ITSA’s actions are lawful and that they reflect ITSA’s purpose, as well as government expectations; It is clearly obvious the Attorney General the Commonwealth ombudsman and the Australian Public Service Commission are protecting the shonkey senior management at ITSA........ claerly also from this it appears the Australian Government expects senior management to fuck over and distort figures and statistics!!!! to liaise with the Australian Federal Police and State Police Services - both generally and in relation to specific cases, in relation to the use of investigative powers available only to police officers, and in relation to assistance with forensic evidence and intelligence gathering To use the Federal Police to fuck over and intimidate anyone who exposes systemic corrupt conduct at ITSA, the Commonwealth Ombudsman and the Australian Public Service Commission. to liaise with other law enforcement agencies, including State Police services, and other Government agencies in relation to alleged offences that may involve breaches of other laws, or in relation to alleged offences outside the jurisdiction of ITSA; and To try and fuck over anybody who again exposes corrupt conduct to provide operating results and statistics to ITSA’s Management and the Commonwealth Attorney-General. To provide shonkey statistics after Adam Toma and senior management have fucked everyone over!!!!!!!!!!!!!!!!!!!!!!!!! Next Previous

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  Freedom of Information reply / Prime Minister and Cabinet
Following is the reply received from Prime Minister and  Cabinet Freedom of Information  request on the failed insulation scheme  where  men died because of a shonkey government failed to ensure  safety requirements .
If it had not been for the Coroners report this would have been another matter that the Government fucked over and failed to take responsibility  for!!!!

---

From: FOI@pmc.gov.au
To: fionabrown01@hotmail.com
CC: FOI@pmc.gov.au
Subject: PM&C FOI request (ref:FOI/2013/072) - Acknowledgement [SEC=UNCLASSIFIED]
Date: Tue, 9 Jul 2013 07:07:43 +0000

--> -->

FOI/2013/072

Dear Fiona Brown

Thank you for your email of 6 July 2013, received by the Department of the Prime Minister and Cabinet (the Department) in which you made a request under the Freedom of Information Act 1982 in the following terms:

all documents  sent to the Prime Minister Kevin Rudd from the Queensland Building Authority on its concerns on the Insulation stimulus.

Timeframe for receiving your decision

The statutory timeframe for processing a request is 30 days from the date upon which your application was received by the Department except in certain circumstances in which case we will notify you of the time extension.

Removal of officer’s details

It is the Department’s policy to withhold the names and contact details of junior officers within the Department and other agencies contained within documents that fall within scope of the request. The names and details of senior departmental staff would not be withheld unless there were some reason for that information to be exempt from release.  If you require the names and contact details of junior officers please let us know at foi@pmc.gov.au for the decision-maker to consider; otherwise we will take it that you agree to that information being excluded from the scope of your request.

Publication of documents

In accordance with the Government’s pro-disclosure policy agencies are required to publish information which has been released under FOI on the agencies’ disclosure logs. If you wish to raise any objections to the publication of any of the documents which may be released to you please contact the Department by email at foi@pmc.gov.au.  Supporting reasons for any objection would be appreciated.

Charges

Agencies may decide that an applicant is liable to pay a charge in respect of a request for access to documents. If the Department decides that you are liable to pay charges, we will forward a preliminary assessment of charges to you as soon as possible.

The Department will write again when we have further information.  Otherwise, further information on FOI processing can be found at the website of the Office of the Australian Information Commissioner at http://www.oaic.gov.au/foi-portal/about_foi.html.

Regards

David Thomas

FOI Adviser

Legal Policy Branch

Department of the Prime Minister and Cabinet

Phone: 02 6271 5794

Email: foi@pmc.gov.au

 ITSA's discretion/ Shonky Administrators and trustees/ Adam Toma/ Veronique Ingram/ Matthew Osborne/ Cheryl Cullen/ Mark Findlay

 So ITSA banned an unregistered debt administrator????? Sound like  more propaganda shit to me that would come out of the mouth of Adam Toma!!!

ITSA clearly advises that  trustees and administrators and ITSA senior Management has the discretion to fuck everyone over!!!

Clearly this   this shonky administrator was only following the advice of Matthew Osborne!!!

 Media release – Reid (QLD) – unregistered administrator banned from administering debt agreements

Posted on April 16, 2013

An unregistered Gold Coast debt agreement administrator has been officially banned from administering debt agreements for a period of three years.

Mr Gavin Reid operated an office in Robina on the Gold Coast, Queensland, and following an investigation by Insolvency and Trustee Service Australia (ITSA), it was determined on 15 March 2013, that Mr Reid was ineligible to administer debt agreements for a set period.
The decision follows an investigation by ITSA’s Regulation and Enforcement Area into the files administered by Mr Reid.
ITSA’s Chief Executive and Inspector-General, Veronique Ingram, said that after considering the evidence and speaking with Mr Reid, it was decided that Mr Reid had not carried out the required duties of an administrator appropriately, and consequently, a determination was made that he was no longer eligible to administer debt agreements.
“We have a strong regulatory system in Australia and it’s important that Australian business people and consumers are confident in a system that is transparent, fair and strong,” Ms Ingram said.
Mr Reid’s breaches included not dealing with property of a debtor according to the terms of the agreement, not reporting to creditors as required, failure to keep proper records in relation to the funds being held for debtors.
As a result, subject to section 185ZB(4) of the Bankruptcy Act 1966, the debt agreements previously administered by Mr Reid will now be administered by the Official Trustee in Bankruptcy.
The debtors and creditors of each debt agreement previously administered by Mr Reid have been contacted by ITSA and notified of the changes.

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