This is Part two of a story by Dr Evan Jones, laying bare Liberal lurks like the lockdown fee scam. It takes us back inside the case of Turitsyna vs Revenue NSW - a lawsuit challenging fees imposed for COVID-19 quarantine accommodation.
A "CALLOVER HEARING" (that is, directions hearing) was held on 18 March 2022 before NSW Civil and Administrative Tribunal (NCAT) Principal Member Aaron Suthers.
Suthers' formal task was to direct traffic but the intent was to stop it dead. Suthers failed because, days before, Turitsyna had already submitted her Appeal on 6 March.
According to Turitsyna's husband John Helmer's book on the lawsuit, Suthers did throw a legal spanner in the works by refusing to:
The state's lawyers wanted to use the procedure to stop Turitsyna/Helmer from gaining discovery and to accelerate a summary dismissal of the case - without the evidence. Helmer refers to this persistent attempt as putting the cart before the horse - or rather, the donkey.
Suthers also neglected to call to account the Registry, which had consistently failed to forward then-available material to Senior Member Jill Gatland.
The next hearing before Gatland was on 29 March 2022. At this hearing, Helmer claimed there could be no progress because Gatland had made no written statement regarding her inaction (implicitly her dismissal of the applicant's summons) at the previous hearing on 10 February.
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The state's agents were still confident that at this hearing, Gatland would dismiss the applicant's demands, making any Appeal hearing moot.
Gatland produced a written statement on 1 April as to her reasons for accepting from Revenue NSW's Chief Commissioner that no records summoned for the secret 12 July 2020 meeting were held other than the "work plan".
Turitsyna and Helmer found that the written statement differed from Gatland's stance on the 10 February 2022 hearing recording, so an additional element was included in a new list of Appeal grounds which went to the Tribunal on 10 April. They added further grounds on 5 May.
Quoting Helmer (p.208):
The respondents had demanded that Turitsyna's claim of discrimination be heard separately.
Helmer turned to the Anti-Discrimination Act 1977 No 48 and the Anti-Discrimination Board of NSW (ADNSW board) that oversees it. On 2 November 2021, Turitsyna had filed against Johnston to the ADNSW board, charging that the arbitrariness of the quarantine fee and of the fee waiver violated the antidiscrimination law.
The ADNSW board delayed its obligatory response and then demanded evidentiary details, with several case review staff replacing each other along the way. Four months later, on 8 March 2022, the Turitsyna/Helmer claim was dismissed by the ADNSW board as lacking substance.
This discrimination case then went to the Tribunal on 18 May 2022 before Senior Member Amanda Tibbey.
The Crown Solicitor's solicitor had been changed; he objected to Helmer as Turitsyna's representative in court; he submitted the requisite papers after the deadline (but they were ruled as legitimate) and the judge assigned to the case was replaced at the very last minute by Tibbey.
Tibbey then claimed that her brief was solely to determine on the fact of discrimination against Turitsyna.
Helmer had to reiterate to Tibbey that:
Tibbey reserved her decision and promised, responding to Helmer's request (as required by the Tribunal's statute), a written statement of reasons.
Two hours later, the court clerk sent an email with Tibbey's judgment dismissing the case. There was no accompanying written statement and none has materialised after ten months.
The Appeal hearing itself took place on 24 June 2022. The "panel" consisted of one person - Principal Member Ian Coleman - and Gail Furness, a colleague who remained mute. (Her CV does not include NCAT membership status; presumably, she was there to give the one-person Appeal court apparent legitimacy.)
The state's agents were still arguing that the Tribunal has no jurisdiction, that the summons for discovery should never have been issued and, in any case, Revenue NSW did not hold the documents demanded.
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On 10 August, Coleman dismissed the appeal. Coleman repeated Gatland's determination that the material sought by the Appellant was 'not in his [Chief Commissioner Johnson's] possession or control'.
Coleman said, wrote Helmer:
Helmer's analysis of Coleman's determination is that:
Helmer, with expert forensic advice, also inferred that an unknown third party (not the invisible co-signed Furness) had a significant role in the wording of the determination. More, Helmer infers that the determination was written soon after the 24 June hearing but not issued until almost six weeks later. There was to be no discovery (save for the accident of the tell-tale work plan) and no cross-examination of Johnston.
In early 2022, NSW Revenue's Johnston faced public exposure over a related issue - fines issued for alleged breaking of lockdown rules. Questions were asked in the NSW Parliament (not least regarding a Robodebt-type personal account garnishee process), litigation was being pursued in the NSW Supreme Court by victims and the fracas was reported in the media. Soon after, Johnston was served court papers. Johnston stopped enforcement and cancelled half of the fines.
The Fines Act 1996 No 99 applies to both the Supreme Court and NCAT. The only litigation regarding the legitimacy of quarantine fees, the Turitsyna case, was continuing at NCAT.
Following the dismissed Appeal, Gatland returned for a final hearing of the Turitsyna case on 14 November 2022.
Gatland was free to rule anew that 'the Applicant has still failed to establish the Tribunal's jurisdiction ...' and to dismiss the suit, ignoring all evidence to the contrary. The Respondent was still claiming that the police operation was a health service operation.
Helmer notes (p.272):
Hence the title of Helmer's book, Australian Fascism: How It Destroyed The Courts.
When Gatland retired from this last hearing, Helmer asked her when they could expect a determination accompanied by a written statement.
To this date, no determination has been forthcoming. It is not impossible that there will be no determination and Tatania Turitsyna's suit will have disappeared into the ether - unprecedented.
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If not for Daryl Maguire and the Wagga Wagga shooting complex affair, Gladys Berejiklian would still be NSW Premier. The illegal quarantine fee (over $320 million at stake) and the machinations behind it are more serious than a textbook instance of pork barrelling.
Also of relevance is the subjugation of hordes of people to Berejiklian's nefarious scheme. Senior officials in Revenue NSW, NSW Police, the NSW Crown Solicitor's Office (CSO), the NSW Ministry of Health, the Anti-Discrimination Board and the NSW Civil and Administrative Tribunal (NCAT) have all been complicit, all compromised, all sacrificing both personal and organisational integrity.
With this particular spreading virus of moral decay, Gladys Berejiklian, whose initiative spawned it, managed to distance herself considerably from the implementation of the dirty deed and its aftermath.
Helmer notes that NCAT (and comparable state bodies elsewhere) are formally a key instrument for giving access to those without power to redress grievances against powerful bodies, both state and private.
NCAT's website brandishes the slogan:
In the Turitsyna case, there has been to date (two years on) no resolution, no fairness within a process contrary to and in defiance of the law.
My experience with NCAT (strata schemes disputes) and my indirect awareness of a current case before QCAT, the Queensland equivalent, highlights that these state civil and administrative tribunals can be readily compromised by the bodies which those tribunals were created for, the purpose being to offer a counterbalance. In one strata scheme dispute in which I was intimately involved, the ultimate determination against the victim could only be interpreted as pure corruption.
A comparison with the degradation of public administration involved with the conception and administration of the Coalition's Robodebt scheme is apt. The machinations of the Robodebt scheme, courtesy of media exposure and a subsequent Royal Commission, are being well aired publicly.
By contrast, Gladys Bereklikian's quarantine fee and its discriminatory application are a well-kept secret. John Helmer's Australian Fascism aims to prise that secrecy open.
You can read Part one of this story here.
Dr Evan Jones is a retired political economist.