I am seeking some assistance in relation to the difference between negligence and wrong-doing.

I made some formal complaints to the Legal Services Commission about the actions of my Legal representatives in the handling of my family’s case against the Department of Education.

Firstly, they didn’t present crucial information to the Administrative Decisions Tribunal (ADT), and in particular the fact that the matter was back before the ADT because the Department didn’t honour the agreements that they had made on the morning of a previous hearing to provide certain documents etc. These agreements are confirmed in writing by the Crown Solicitors office.

My legal representatives didn’t tell the Judiciary Member that the matter was back before the Court because the Department failed to honour their agreements and therefore he didn’t award us the documents and said that it was an unreasonable diversion of resources!

The Solicitor/Barrister also didn’t ask for costs despite me asking them in writing and verbally on many occasions. We believe that since we were forced back before the ADT because the DET had not honoured their agreements that it would be regarded as special circumstances and that we would be awarded costs.

Costs amounted to $25,000.

The Legal Services Commission has responded in part by saying this:

“I appreciate that many people who find themselves dissatisfied with the standard of service they have received from a legal practitioner look to my Office and the disciplinary bodies with an expectation that we can resolve disputes that raise negligence (rather than wrong-doing that would amount to actionable misconduct)”

The scope of the power conferred on this Office as a regulatory body cannot supersede or undermine the jurisdiction of the courts. Where possible, we attempt to assist the consumer resolve service (not conduct) issues via a mediation process where it is made clear to all parties that there is no prospect of disciplinary action being taken”.

We allege that the Solicitor/Barrister didn’t act on written instructions and they breached the agreement/contract. This does not appear to attract disciplinary action?

Education - Keeping them Honest
http://jolandachallita.typepad.com/education/

Jolanda
You now must lodge a complaint to the NSW Legal Commisoners office.
They have taken over these type of complaints in place of the law Society.
It is said to be more inderpendant.
Attach a copy of the written letters from you indtructing them to ask for costs.
You will also eventually need to obtain a transcript of the case to show they did not ask for costs.
I would suggest you try to get the transcript BEFORE you lodge the complaint.
Its a dirty world we live inand these things tend to get lost at times.
Looking at your costs of twenty five thousand a copy of a transcript would be very expensive indeed.
However the part you want will be in the last few pages at the summing up of the lawyer when he OUGHT to have asked for costs.
Also do you have a copy of the judges orders?
Often they will reserve costs.
It may be cheaper to apply for a copy of the court tapes.
It will still cost you but not as much.
DO NOT tell them why you want the tapes.
Listen to the whole of the tapes so they cant argue you cant show at NO time did he ask for costs.
Stick with it.
Dont discuss the actual case - JUST the cost issue.
If you do your homework right you will be ok.
You will have to be patient and determinded- which I know you are.
I am sorry this has happend but I admire the fact your not just lying down taking it.
Clearly if what you said are the facts you have a case against the lawyer for negligence.
Good Luck and yell if you have any more questions.
PS Off post but did you hear the Government are looking at making Australia a Ritual Slaughter Country? Cant hear Andrew either.
I remember how everybody bagged you when you opended the thread about Halal Food. how right you were!

I am sure you will provail with this legal matter making life better for others who follow you.

The lack of detail makes it difficult to be very helpful, but a few things I note:

You were dissatisfied with the failure of counsel or your solicitor's to put certain matters to the court. Without a lot of detail I couldn't comment on whether they were correct to disregard certain matters. Lawyers owe their first duty to the court and are obliged by that duty only to bring relevant substantial matters to the court's attention lest the court's time be wasted. Most lay people don't understand that just because they are paying they don't get to call all the shots. Lawyers aren't always happy about this either, but if they ignore their duty to the court in favour of the their client's interests they can face disciplinary action. The point is, lawyers are bound by rules not to bring legally irrelevant material before the court, even if their client requests they do so.

Your unhappiness, perhaps also indicates that you were unsuccessful in your action, or at least were less successful than you expected.
Your lawyer's failure to request costs probably reflected a result that would have made favourable costs orders inappropriate.

Good luck with your action, but don't proceed on an assumption your lawyers were treating you with contempt. Do some research and you may find your lawyers had good legal reasons why they were unable or unwilling to follow your instructions.

Kalin
Asking for orders for costs to be made IS up to the client to request and its her God given right.
NO Lawyer is put in a position he has to make a call if he should or should not ask for costs.
ALSO she clearly said she put it in writing.
So he has ACTED against his clients intructions!
Show me where in the manual that is excepted.?>
I agree many Lay people do not understand some of the mumbo jumbo.
However She said she had intructed in writing the council ask the for costs.
If she can>
A Prove that. B Prove it was not done she has a clear case for negligence.
You and I both know they will do everythiing a throw tall poppies at her to try to bully and confuse her.
But if shes keep EVERY Phone call from now on and every! single bit of corrospdence AND keeps in to the commission she will be ok.
Even if she has to end up at the attorney General and registra of the court and or the media.
The only person who makes a call on asking for costs IS the client

Kalin, I see what you are saying. PALE, Kalin's point is that if the lawyers knew that the rules were that costs would not be awarded, then they could be in a great deal of trouble in wasting the courts time asking for them. I had a bit of a look into this last time Jolanda brought it up, and it was my conclusion that the AAT (where the hearing was), generally works on the basis that each party cover their costs. That is, costs are not awarded.

Jolanda, negligence requires that the responsible party commit or fail to commit an act where it would be reasonably forseeable that you suffer a loss, AND that you did in fact suffer that loss. You can then pursue them for neglience. Its been 10 years since I studied it, but that's the overall gist of it.

My two bob's worth? 1. Get a legal opinion on whether costs are normally awarded under a FOI action by the AAT. To save additional costs, you could probably approach a court registrar or the like under the guise of trying to determine what this would cost you if you were to proceed with the action (that you have already taken).
2. If you find out that costs SHOULD have been awarded (not your opinion, but someone independent's), then consider undertaking a negligence action. You may be able to pursue this in the AAT (although claims amount might be too high - I cant remember the limit). If you can use the AAT, then you dont need a lawyer (and perhaps thats why costs wouldnt have been awarded to you) to represent you, you can represent yourself. If you cant use the AAT, then consider an approach directly from another lawyer, with the threat of legal action. Usually firms try to avoid bad publicity, so would be inclined to settle, particularly for small amounts (as this would probably be for them).

Thanks all for replies.

In the case of matters before the ADT apparently costs are only awarded if there are 'special circumstances'.

When the matter was before the ADT the first time the Magistrate said that she would note on file that the integrity of the Department was being challenged and that if the Department didn't honour their agreements that I would have to file fresh FOI applications. I agreed not to go to hearing on that day on the belief that the Department would honour their agreements. They did not.

I also had to take the matter back to the ADT because the DET destroyed documents that were specifically requested to be set aside under FOI and because I couldn’t get those documents the Ombudsman refused to investigate the matter. I had to request other documents to prove the same thing.

Surely this would be considered 'special circumstances'?

The Legal people now say that because I wasn't successful in that one particular aspect of the production of documents (the Judiciary member stating that it was an unreasonable diversion of resources) that I wouldn't have been successful for costs. But the solicitors did not act on instructions in relation to letting the Judiciary member know that the Department had made agreements to give us these documents before and in relation to our request for an order for costs.

I have the transcripts. There was no request for an order for costs.

The problem is that whilst I can apparently sue for negligence, for that I need money and I have been told that the amount it would cost us wouldn’t make it worthwhile. The Solicitors took all our money and we have nothing left. We just wanted the Legal Services Commissioner to help us get our costs back from the Solicitor so that we can get another solicitor to do what we had instructed them to do in the first place. They say that they can cannot help us and our only option is to sue. It just doesn’t seem fair.

PALE,

Please explain the basis of your knowledge of such matters. I am very interested to know because I was unaware of any God Given bill of rights.

Lawyers, like most professionals are bound by codes of conduct which they must follow regardless of what their client's want. Lawyers often deal with clients who feel everything bad they have to say about their opponent is relevant, and then want their lawyer to present these emotive facts to the court. Lawyers are professionally obliged not to bring up prejudicial matters that are not relevant regardless of what their client's instruct them to do. Just as they are professionally bound not to lie to the court even if instructed to do so by their client (another thing that happens more often than you might think). Lawyers ARE obliged to follow instructions, but not when they conflict with their obligations to the court or their statutorily mandated code of conduct.

Similarly, you can't go into a doctor's surgery and expect him to give you whichever medication you say you want, just because you say you want it. It may be your "God given right" to ask, but the doctor has a professional duty to treat you, not obey you.

Kalin
My court experience is extensive. Whats yours? However after just spending the last three days in court this week and two days last week arguing something similar- yet differennt I am no mood to talk courts as much as I would ike to help Jolanda.

Perhaps you would be kind enough to assist Jolanda.
They had a "duty to inform Jolanda" if your correct they could that they could not ask for costs their was an act to establish that fact.
What act is that please uder which D??

She said she wrote several times BEFORE the case outlining she would be asking costs.

Jolanda today the lady I was with lost out on costs because her lawyer FORGOT to include them in the orders.- A hundred grand- Shes stuffed.
This means she will get nothing. Sure she can sue for negligence but hows she going to fund it?
She been two and a half years just trying to get the orders enforced that her x has been in contempt of for all this time.

So at the end of the day because she cant get him out she cant sell or put it up for auction. Now the bank are moving in because she cant reply the loan.

I dont know enough about your matter but Kalin might advise you to make an offer in writing to pay it off a fifty dollars a month;

If you can provide proof you have offered something it might hold them off from taking your home.
Another time I may be more helpful but the others seem informed and helpful as well.
Anyway its been a B of a weeks speaking of courts.
The only thing that keeps me going is hes about to be charged with child abuse so will spend many years in goal.
There iS justice but you wil have to fight for ir and as i said[ maybe bow and offer to make payments.

People against live exports. It's sad that you have had to deal with a similar case involving costs. Child abuse matters must be heartbreaking to have to deal with.

I have already borrowed the money from the bank and the bill has been paid so I will be paying it off for a very long time.

I never thought that we would incur such costs because we were forced to take the matter back to the ADT as the Department didn't honour agreements and destroyed documents. The Magistrate had even said she would note it on file in case the DET didn’t comply. I thought that we would have rights. Given my experiences I don’t know why I would have thought that? I guess I am still naïve!

The problem is that now we need money to sue the Department. Again suing is the only thing we can do. We can’t force them to investigate the allegations and complaints despite the fact that the documents that we were awarded clearly shows that certain people in the department have changed, then miscalculated the scores, and presented incorrect scores and information to the selection panels in order to deny my children the education that they were identified as needing and in order to defame and discredit us. They have closed the complaint internally without complying with their own Policies and they have breached their Code of Conduct.

It just seems that there is no way to achieve justice in this country unless you have money. The thing is that all my husband and I wanted was for the allegations to be acknowledged so that the neglect, victimization, bullying and manipulation would stop as they continued to target my children, even the younger ones so that we would present distressed and with a story to tell that people found hard to believe. We just wanted for our children to be safe and protected.

Our system doesn’t care about the children.

Oh and I am not surprised that I was right about the Halal thing! It is pretty obvious where that was heading

Jolanda
I am no expert but I am also not doing you full justice right now being so caught up in this other case along with the fact the Australian Muslim Leaders have breached our Agreement. "No I know your not surprised."!
I wish you were in QLD because I remember your matter.

If its ok with you I am going to print out your top post and put it on the table next tuesday to a board of lawyers at a meeting about another matter.
There is one barrister in particular who I might be able to get to call you if thats ok with you.
Just to give you their thoughts.
In the mean time can you prove abuse?
That would come under criminal and you could sue for damages?

I still say the fact you put in writing you wanted to ask for costs BEFORE the case they should have - and had a clear duty of care to you to let you know you could not ask for costs.

I am not convinced you dont have a case for negligence and I am waiting on Kalin posting the act.

In about three weeks time I am taking a few days off and will look more at yours if you like.

I may even be down you way as i support this other person who has been trying to get simple orders enforced to get the x out of her house for years.
I reckon as its her house too we ought to just go there, walk in and say. Coffee , one white with two sugars and one black please Hermann.
It wont take but two seconds for him to threaten to kill us so then she will have a witness and call the police who will charge him and put a AVA on him.
The moral of the story Jolanda as I am SURE you know is the courts are an arse so sometimes you have to do it yourself.
By the way you wouldnt have a cricket bat we could borrow - would you?

People Against Live Exports. Our Barrister did tell us that costs were only awarded in special circumstances and that costs were limited. But I told him repeatedly that this matter was a matter where there were ‘special circumstances’ and that I wanted him to ask for costs.

I also told them repeatedly to tell the Judiciary member that the matter was before the ADT again because the DET had not honoured their agreements and had destroyed documents and that the matter was serious as it involved the targeting, neglect and victimization of children and that we needed the documents so as to force the Department to investigate the allegations in order to protect innocent children and he did not tell him.

It became obvious that the Barrister was not on our side. He even screamed at me when I insisted he ask certain questions. He didn’t ask them. At the end I was upset because he didn’t ask crucial questions and put in crucial information. Judgment was reserved. The Barrister said he said he would try to get the matter listed so that he could get leave to file some written submissions and see if he could put the questions in writing. I had to get the transcript – more fees, more costs. The matter was listed but the ADT said it was too late and he should have done it at the hearing. At this particular hearing the Judiciary member even brought to the attention of Counsel the fact that nobody had asked for costs and my Barrister just looked at the Crown Solicitor and said nothing.

Sorry to hear that you are involved in such an upsetting and difficult case. It seems unreal that a person cannot seem to get protection or rights.

Maybe the baseball bat is a good idea. Maybe people need to do something criminal and physical to get rights, assistance and protection. It seems to be the way.

I do appreciate your direction/assistance in this case and am quite happy for you to ask questions if you have the time etc.

Continued.

PALE, its probably not under an act. I'm in the accounting profession, and we have a Code of Conduct as well. It has the force of law on members, but isnt actually a statute. Perhaps it can be accessed on the Law Society website or the like.

Jolanda, I've had more of a think about the difference between misconduct and negligence. Negligence is more of an oversight-type of thing. "I should have, but I forgot to". Wrong-doing or misconduct is deliberate. If the Code of Professional Conduct says that they must explain to you the reasons for not acting on your instructions, and they refuse to, despite your requests for explanations, then I think that falls more towards wrong-doing than negligence. Perhaps if costs would have bene likely to be awarded, then not asking is negligence, but refusing to explain the reasons to you is wrong-doing. Does that help shed a bit more light on the difference?

PALE,

Not sure what you meant by "They had a "duty to inform Jolanda if your correct they could that they could not ask for costs their was an act to establish that fact."

In NSW where I live and work, the disclosure obligations of lawyers are covered by the Legal Profession Act which does require that they make disclosures about likely costs and the costs implications of any particular result of proceedings. Such disclosures do not need to be very precise for the simple reason that costs, particularly in legal proceedings, can vary wildly depending on complications, the actions of other parties, or the difficulties in obtaining the necessary evidence. As to other duties and obligations of lawyers, if you really want to know, go read up about them at any good library or ask for a copy from your state law society.

Jolanda,

Your reference to the DET and the promises they did not follow are too obscure to comment intelligently upon. What is the DET (Department of Education?), what did they promise and how was that relevant to case and your final costs position? What was your dispute atually about? PALE seems to think it was some kind of child abuse case but I gather from what you say it was about some the treatment of your children by the education department. Please tell us your story in a fuller sense so we can understand what your problem is.

Ironically, this is a classic problem lawyers face, when their client's only give them the information they think is relevant.

The ADT awarded us some documents and one was a chart that allowed us to be able to calculate how the SSU re-calculated the scores that the Selection Committee awarded the children. This chart proves that the scores were re-calculated incorrectly and incorrect scores and misrepresentations of facts were used. The process was manipulated and flawed.

It is also a fact that despite serious formal allegations being made against certain members of the Selective Schools Unit (SSU) these people continued (and continue) to process my children’s applications and even form part of the voting panels in relation to outcomes for my children.

"The SSU said in an article in the Sydney Morning Herald that extremely bright students benefit greatly from learning together. And that "One of the myths is that the bright kids will make it in any environment, when the research shows these are the very kids who will drop out and get clinically depressed and have all sorts of difficulties if they aren't in a group with their intellectual and emotional peers.”

I can prove bias, victimisation, manipulation, bullying, educational neglect and psychological abuse aimed at my children and spanning over 7 years. I can even prove that there is a conspiracy to cover the matter up and that the Department has repeatedly breached their Policies and Codes of Conduct in the handling of my children and the complaints.

One Solicitor said to me that although we would have no problem proving negligence that the Department has a bottomless pit of money and because this involves ‘psychological abuse’and is difficult to put a price on the Department would just drag it on and on until it destroyed us and that any money that we would get in damages wouldn’t cover the costs. When I said that I wanted these people removed from their positions of power as they continued to target my children he got angry at me and called me a bad mother. It appears that there are those who believe that children should just accept what is being done to them and say and do nothing.

Kalin1. We are limited in how much we can write here. I was not limited in what I provided the Solicitors. Trust me I gave them all the information. I even drafted documents for them in case they were too busy to work it out. They just didn't bother honoring their contract and representing me. They just took my money.

In the year 2000 I made some public complaints about the Education of gifted children. The Department of Education (DET) was not impressed and since then they have been targeting my children, bullying them and manipulating with their test scores and documents so as to discredit us and so as to deny my children access to Selective Schools. The schools that they 'needed' in order to meet their identified intellectual needs. It’s pay back.

The Department has conspired to cover this matter up and I have clear evidence that shows this. The Ombudsman has refused to investigate the matter despite it involving the welfare and well-being of children.

My youngest daughter sat for Selective placement for last year. She was identified highly gifted even by the DET’s psychologist. Despite formal requests that certain members of the Department not be permitted to handle her application or have anything to do with her case and despite a letter from the Department telling us that she had voluntarily removed herself from the process, documents produced under FOI clearly show that she was in total control of my daughters application. She even had email communications with the appeals panel members including the parent representative! She was unsuccessful even on appeal.

The Department will not investigate my family’s complaints even if they are about fresh instances of bias and manipulation because they say that they refer to the same type of allegations as before and they have been investigated. Problem is that these allegations have never been investigated.

What makes me really mad is that they don’t even have the decency to ensure that my children are protected and that they do not continue to be dealt with the same way?

Jolanda, if you are truly concerned about the mental wellbeing of your children, why dont you apply to the private school system, seeking bursary assistance? If your children truly are gifted, then most private schools would be keen to snap them up and help you financially (high-performing children prop up their stats and help them to market to other parents).

The other thing to take into account is that very rarely is there only one high achiver in a particular year at a state school, so unless it is a very small school, then they are unlikely to be on their own entirely. You can also seek to work with teachers to gain access to extension work, special tutoring etc. Most teachers are delighted to have a chance to work with an advanced student - you will always come across some that are just too lazy or too challenged by it, but then that's your job as a parent to step in and help provide additional guidance for your kids. Its usually only for a year in primary school, and only for one or two subjects a year at high school. particularly once I got to the higher levels at high school my teachers (although not all of them) used to basically let me do my own thing. The science teachers (physics and chem) were particularly good, and english teachers not bad either. Open your eyes to other solutions to your concerns. I am not saying that you shouldnt challenge the system, but just that the solution that you are fixated on may not be the only one to get the same results that you are after.

Countrygirl. It is a myth that just because you are gifted that private schools will give you a full scholarship.

I don’t know why you would think that I wouldn’t do everything in my power to protect my children’s mental health and well-being! Why do you think that we fight this? Do you think that my children would be happier and better cope if we turned a blind eye and/or told them to just accept their treatment and cop it sweet?

The Education System is run by the state labor government so it doesn’t matter what school my children are at. There has been evidence of other external tests being tampered with.

Two of my children are doing their HSC next year; one is in a Catholic School and one in a public school. They are very concerned and worried that they are going to be marked down for their UAI and their test results/papers tampered with. This fear interferes with their concentration; they worry when doing the tests. They keep second-guessing themselves. It causes havoc with their mind and creates distress and they suffer extreme stress and anxiety waiting for results. They just despair as so many times the results have caused them humiliation and distress and every time when they have challenged the mark there has been something wrong but nobody will do anything to fix it.

Changing schools cannot fix this problem. The only ways to fix this problem is to properly and fairly investigate the complaints so as to clear my families name and remove those responsible from their positions of power so that the children can be safe and be protected.

Thanks for your take on negligence and wrong-doing. I guess this creates a way for the Government to always protect themselves from having to answer and be held accountable. Who is going to actually acknowledge that they did something on purpose if they can get away with it? They call everything negligence so that the only thing you can do is sue, then they further discredit you for suing.

Jolanda,

It still isn't clear to me what about your case is supposed to be so special that you ought to have been entitled to costs. You haven't explained what promises were made by the DET which were not kept that would entitle you to a costs order.

You also say

"I can prove bias, victimisation, manipulation, bullying, educational neglect and psychological abuse aimed at my children... "

"The Department has conspired to cover this matter up and I have clear evidence that shows this"

Please read your own posts again. They sound rather'fantastic.' As a matter of practicality more than law, when you start with such improbable allegations, it takes a compelling case to convince a court of their truth.

I understand this started after you complained about the poor treatment of gifted children. You said the department then targeted and bullied your children. Please explain from the beginning, what it is the department did to your children - "targeting and bullying" is a little too vague to form the basis of legal action.

Jolanda, your job as parent is to relieve their stress and frustration at exam time, not add to it by constantly insisting that they must be discriminated against. I salute your determination, but believe that you are doing as much harm to your children as the system that may or may not be acting against them. The way the HSC marking system works, is that they will get their own exam mark, PLUS the exam mark in their school that matches their internal ranking. So if they are the top of the class, they will get the top mark, whether they earned it in the exam or not. The two are then averaged. This provides some measure of independence, and can easily be tested by checking results with other kids in the year. If your kids are marked down for their exam, they might not get what they fully deserve as far as results go, but the averaging system will mitigate this to some degree. If they dont get the UAI they need (whether their fault or the depts), a little ingenuity may be called for - try starting a degree with a lower UAI and switching up. Start at a second tier uni then switch across. Good results in uni will ensure that they get where they want to go eventually. Its your job to make sure that they dont lose heart and stop trying. Its not the only adversity that they'll have to face in their lives.

Country Girl. What makes you think that I am adding to thier stress? Just because I fight this matter and listen to their concerns doesn't mean that I am adding to their stress. You seem to want to paint the picture that you want to present.

I find it amazing how much people want to believe that the Department is innocent of this. Do you realise what that means you think of me?

All I have ever asked for is a proper and fair investiation into these allegations so as to protect the children as the situation keeps re-occuring. Policy and Procedure require that allegations of this nature, and in particular to do with child protection, be formally investigated.

Fair treatment has been denied to my children and family every way that you look at it yet you still want to blame me?

I find it amazing how so many people do not actually believe that my children and family deserve justice and deserve to be treated fairly. What ever happened to the concept of a fair go. Or is that just meant to be a fair go for some!

These are children, they deserve to be treated fairly, it should be their right.

Kalin1. If it isn't clear to you by now then what can I say?

PALE. If you get a minute I just wanted to ask you a question, please. In the first instance we requested the original answer sheets and test papers to be set aside and produced under FOI. The DET challenged providing us with access and we went to the ADT. On the day of the planning meeting the DET destroyed the original answer sheets later saying that because they had electronic records of these results that they saw no reason to keep the originals.

We couldn’t check the original answer sheets because they destroyed them. We were given access to the tests but we had to use the DET’s computer printout of the answers in the Department of Education’s office as the originals had been destroyed. On the day that we went in to view the tests my children and I were bullied and harassed until we left in tears unable to check the tests.

We have been unable to get anything directly from the company that marks the test. They say that everything has to go through the DET. Because they are in Victoria even the Privacy Commissioner cannot help because it is in another state.

Now these originals were specifically requested to be set aside under FOI and they knew we had made allegations that these test marks had been manipulated. They destroyed evidence. Is there a Criminal Code that they can be charged under for destroying evidence?

I realize you are busy, so don’t worry if you don’t have time. Maybe somebody else can help me..

Jolanda, I am simply inferring by the heated manner in which you discuss this online, that you discuss this and your feeling of victimisation at home. I apologise if this isnt the case. However, if you discuss this at length with your kids, all you will be teaching them is victimhood. I dont doubt that any government department could bully a group or family and that they have a tendency to coverup after themselves. What I do suggest is that after spending so much time and money fighting this, that you spend a greater amount of time focussing on teaching your kids how to prosper inspite of what's happened, rather than continual complaining. As I have suggested earlier, its probably not the only injustice that they'll have to face in life, and your attitude towards handling setbacks will rub off on the way they approach life. I dont blame you for any unfair treatment against your kids - but I would blame you if they are adversely affected by it in the longterm, as its your job to teach them coping strategies.

As for your question to PALE, I am not 100% sure, but a general rule is that evidence destroyed once subpoeanaed is illegal, but that evidence destroyed prior to any legal dispute is not. They may also have a defence if they routinely destroyed original copies - eg the destruction involved all test results for the year, or they did a similar thing with the test results every year. Try searching www.austlii.edu.au - its the australian legal database. There may be a specific court case or legislation on the matter.

Country Girl. Again for some reason you seem to think that I don’t spend time with my kids! You are creating again the picture that you want in your head.

I am teaching my children how to prosper and they are wonderful children and we have the closest most wonderful relationship because they know that I will do everything in my power to try to protect them and that I respect them. I am very proud of them as they are of me.

I am also teaching them right from wrong. Something that seems to be missing from the teachings of today. If we do not teach our children right from wrong then how will they know?

Have your read Piers Ackerman’s blog in relation to Hiding in the Shadows, the Heiner Affair http://blogs.news.com.au/dailytelegraph/piersakerman/index.php/dailytelegraph/comments/hiding_in_the_shadows/

These were children who were neglected and abused in Government institutions and it was covered up the same way my families matter is being covered up. Where do we draw the line, is it okay if it is just psychological abuse, vilification, denial of justice and oppression, is it okay if it is just bullying. It seems to be okay even if it is sexual abuse and neglect.

Setbacks are a little bit different to child abuse and neglect by adults who have a duty of care to protect you. I am teaching my children strategies but that doesn’t mean that I do not do everything in my power to get justice and protection for my children and to hold those responsible to account. I am not complaining, as you put it - I am making formal allegations that need to be addressed.

As an adult it is my duty and responsibility to protect the children.

Jolanda, the physical and sexual abuse of children in institutions (with no-one to protect or comfort them) and the potential manipulation of test scores in selective schools testing (arguably because the Dept doesnt like the parent) are VERY different matters. That you can even draw a comparison between the two is ridiculous. I have never intimated that you dont spend time with your chldren - my concern is more than you continually draw their attention to victimhood, instead of making the best of a bad situation. Have your kids qualified for Mensa? If so, you have good grounds for a challenge. If not, then perhaps they are simply not as gifted as their mother thinks (arent all parents biased about their kids abilities). If documents have been deliberatly destroyed after being requested, then the Dept has something to answer for. I noticed that you had no response to my suggestion that the doc's might have simply been subject to one of many regular destructions (in the interests of reducing physical records). Is this perhaps why you have failed in your attempts? I am certainly not unsympathetic to your case (indeed I have trawled austlii myself this afternoon, looking for information for you), but simply look at it with unbiased eyes, and am able to see the other means to an end that are out there. I have also seen firsthand the results of parents who insist their children are victims - the lack of accountability or responsibility that these kids grow into. The initial hurt is varied (failed an exam - teacher was biased, lost a family farm - mean grandparents, sacked from a job - unfair boss, lost a house - terrible bank), but result is inevitably the same - people who think nothing is their fault. Whether it is their fault or not, the emphasis should be on "ok, what do we do now" rather than "woe is me".

See there you go again Country Gal. Yes my children do qualify for Mensa. What you say is very disrespectful to mothers!

What happened to my children is systematic bias, bullying, victimization, vilification, discrimination, educational neglect and obstruction of justice that resulted in serious psychological harm that caused physical problems for my children and that resulted in my children having to receive medical and psychological care. That you constantly want to play down the situation says a lot.

The comparison with the Heiner affair and my families matter is in the handling of the complaints/allegations. Can’t you see that!

You don’t seem to understand that documents were formally requested to be set aside under the FOI Act. The FOI application was being put before the Administrative Decisions Tribunal because the Department didn’t want to give us access. They destroyed the documents whilst they were part of an FOI application being put to the Court for access. It doesn’t matter about when they destroy test sheets. These documents had already been requested well before any time limit arose.

If all you are concerned about is that my children will think that nothing is their fault then you shouldn’t worry – they will make good public servants.

You obviously do not realize that there is a lot to this story. Maybe one day you should have a little look at my blog.

Education – Keeping them Honest
http://jolandachallita.typepad.com/education/

Jolanda,

Country Gal appears to have a point. The melodramatic energy you put into describing what has happenned to your kids is unreal. I really hope you don't put a tenth as much energy into telling them the 'stystem' is against them.

Here, it is again: "What happened to my children is systematic bias, bullying, victimization, vilification, discrimination, educational neglect and obstruction of justice that resulted in serious psychological harm that caused physical problems for my children and that resulted in my children having to receive medical and psychological care."

How on earth did it get to the point your children are receiving medical and psychological care over a few test scores?

I have looked at your blog and it gave me a little more insight into your predicament. Yes is frustrating when trying to obtain documents from public authorities like the Department of Education, however the mere fact they destroyed documents after you had made a freedom of information request does not establish that the department was involved in some sinister cover up. Morevoer the electronic records were make available to you but you say "my children and I were bullied and harassed until we left in tears unable to check the tests." Who precisely bullied and harrassed you and what PRECISELY did they say/do to make you feel bulied?

You said that before your own barrister was shouting at you. Precisely what did he shout at you and why? In my experience with barrister's they don't shout at their own clients unless extremely provoked. What exactly did you do that might have provoked him?

Jolanda, I am not playing down the situation at all. I have read your blog in depth (some months ago), and have also read the FOI Act, though admit to skimming over the sections that didnt seem relevant. My belief is that there is a difference bewteen Court requested documents, and documents requested by individuals under FOI (note that this belief is not based on my opinion as to whether or not this is fair, but my interpretation of the law). To destroy documents once requested by the Court, is a serious offence (ask Arthur Andersen what the impact of late night shredding is). To destroy documents requested by an individual under FOI doesnt appear to attract similar penalties. At least, not that I have been able to determine. In case you have missed it, I have actually been trying to help you find the information that you are after.

Kalin summed my concerns up well. The melodramatic attitude that you take to this is what I am concerned is doing as much damage to your children as any missed opportunity.

My reference to Mensa membership lay in the assumption that this gives you better proof of your kids abilities, both should you pursue any further court action AND give you fodder to help you put this in perspective for your kids. Its a well-known fact that parents (not just mothers) see their kids through rose-coloured glasses. I'm not saying that this is a bad thing (I'm a mother myself and can understand), but that sometimes you need to take a step back and re-evaulate as independently as you can.

Kalin1. I can’t believe that the act of manipulating students test scores/documents, in order to discredit them and deny them education and opportunities and do them harm, can be something that you accept so readily as a part of life!

I don’t need to tell my children the system is against them - THEY TELL ME!. Victimisation/bullying has a serious impact on children, made worse when adults serve it.
http://www.stopbullyingnow.com/teachers%20who%20bully%20students%20McEvoy.pdf
http://www.bullyonline.org/schoolbully/cases.htm

At the DET viewing of the tests, at first when we just wrote down the marks there was silence. As soon as we started checking to see if the answers corresponded with the question they started on us. There were a lot of tests. They kept interrupting us; they kept disturbing us and we became upset because we couldn’t concentrate. They didn’t give us the actual correct answers to the questions (they were supposed to) so we had to try to work out the answers first - they wouldn’t stop interrupting us with issues that should never have been brought up in front of the children. I begged them to stop. I told them that the children were present and that they were upsetting the children. They didn’t listen. They were even banging papers on the desk. They were directing things to my children. My children felt intimidated and scared. My daughter and I left in tears. My son said it was obvious that the meeting was sabotaged.

Yes my Barrister screamed at me. I asked him to ensure he asked certain questions about certain things and he started screaming at me. My husband was there, I asked politely. I was the morning of the hearing. I thought he was on my side; it was obvious that he was not. What he did was wrong, he was trying to intimidate me so that I would withdraw and shut up.

Why is it so easy for people to believe that I am being unreasonable and not to believe that I am just exercising my rights and I am being respectful and it is the bullies who are the problem?

Country Gal. I cant say that I find your posts helpful. Your constant insistance that I am somehow to blame for what is being done to my kids and how they are affected by it is wearing me thin.

I can't help but wonder who you are to judge whether a parent is seeing their child through rose coloured glasses - or not?

Jolanda,

Bureaucracies are never fun to deal with when your circumstances fall outside the norm. By their nature they are rules driven, impersonal, and insufficiently flexible to deal with matters on the case by case basis human being often require.

Nevertheless, it is almost impossible for such organisations to act with the malice you attribute to the DET. Certainly, you may be up against some nasty peice of work within the DET, but the whole organisation is not out to get you or your kids. Constantly criticising and blaming the whole organisation won't help your cause, rather you need to figure out who in particular is 'out to get you and your children' and then try to avoid them like the plague.

Whilst I do sympathise with your frustration, I do not think you are handling this issue wisely. You may well be in the right, but standing on your rights at all costs is just foolish. Indeed it reminded me of story from when I was young:

"Here lies the grave of John O’Shea
Who died maintaining his right of way,
His right was clear, his will was strong,
But he’s just as dead as if he were wrong."

There are definitely times, even when you are in the right, that you should walk away from a dispute, or find away around the obstacle instead of trying to go through it. I would venture to say that in the history of human relations, telling people they are wrong and demanding they change their decision has probably been the least successful approach to changing people's decisions.

(continued)

You appear to have made the classic litigant's blunder of thinking with your anger instead of your brain. Whilst it is altogether understandable, it is unwise. Perhaps your lawyers should have advised you better, it's impossible for an outsider to tell, but I would be surprised if they didn't express strong doubts about your chances of obtaining a very useful result.

Fighting a government bureaucracy is not an easy thing to do and should only be done in the clearest of cases. As it stands your case against the DET seems based on a conclusion that previous good performances mean a later unimpressive performance must be wrong. While that may be cause for strong suspicion and frustration with the system, it is not an ironclad argument.
The money you have spent on legal fees, or may spend pursuing action against your lawyers would have been much better spent on a private school, private tutors, supporting yourself whilst home tutoring, or some other solution.

I would also be wary of always going straight into bat for your children every time they complain of bias. Whilst parents plainly should protect their children, children whose parents are overly interventionist do their children a great disservice. Whilst you may wish to teach your children that you love them and will do battle for them, often what they actually come to understand is that they can get away with a great deal at school because their teachers are always 'afraid' of having to deal with their irrate parents. Moreover, teachers, other parents and even your children's peers will resent you and your children for getting special treatment, not on their merits, but because you make such a scene. Even if you get concessions from the school/DET you and your family will lose a great deal in credibility and social standing.

Life isn't fair, and it is a mistake to mislead your children into believing it is.

Kalin1. Once again you have created the picture that you want in your head and think that I have dealt with this matter a certain way and somehow it must be my fault. Remember ‘almost impossible’ doesn’t mean actually impossible!

I only made formal allegations of bias and victimization AFTER we received the documents under FOI that showed alarming amounts of evidence of bias, manipulation and misconduct. I was so upset with what those documents showed that I had a couple of highly educated friend’s draft the first letter so that it wouldn’t be emotional, angry or bitter. This letter gave the DET the opportunity to call it a mistake and to fix it but they chose not to. Would you like me to show you a copy? That was in 2002 and they haven’t stopped targeting my children since. They chose to attack my family instead of dealing with the matter and they have been doing it year after year. They did this because, had they done the right thing, then it would have been admitting that they were guilty and they avoid that ‘at any cost’.

What do you call ‘at all costs’? Should I fear for my life because I speak out against injustices and I exercise my right to lodge complaints and expect the system to act fairly and in a proper manner? Should I go into hiding when I lodge an action in the Supreme Court?

Yes we spent some money trying to get justice and we were dealt with unfairly. This money was not enough to even get private schooling for 2 of my children for one year? You might think it a waste but trying to get protection and justice for our children is NEVER a waste.

You keep blaming me.....You keep wanting to protect them. The handling and dealing with complaints is set up to cover up and discredit the complainant. If they don't acknowledge a complaint then people think that the complainant must be wrong, have no evidence and or somehow causing the problems.

So unfair and unjust.

Jolanda,

I'd be very interested to know what you think triggered these people's dislike of you and your family?

For the sake of trying to be useful, I'll now respond to your original post. As I understand it the key facts are:

During various proceedings, DET undertook to produce documents which it then failed to produce.
The loss/destruction, although suspicious, was explained.
You were ultimately unsuccessful in your action.
Total costs were $25,000.

In the ADT, costs are generally not awarded but if so are generally only on a party/party basis (probably about 2/3 of actual costs).

If cost are awarded they generally awarded in favour of the successful party.

If a party has behaved in a misleading or deliberately obstructive way, then any costs incurred AS A RESULT of this behaviour may be awarded against that party regardless of the final result.

As you were unsuccessful, the bulk of the $25,000 costs would never have been awarded in your favour.

If extra costs were incurred because the DET undertook to provide information at a later date and then failed to do so, the only costs which MIGHT have been awarded in your favour would be those directly attributable to DET's not having advised you at the earlier date that the documents were unavailable (NOT THE COSTS ARISING OUT OF THE UNAVAILABILITY OF THE EVIDENCE ITSELF). At most you might have been awarded the party/party cost of one day's hearing, which I would guess at perhaps one or two thoudsand dollars.

If your lawyers had asked for such costs your opponent might have also been prompted to ask, in which case the tribunal member may have awarded your costs (say $2,000) and then awarding the DET's costs for the overall preceedings (say 2/3 of a similar $25,000) which would have left you about $13,000 further in the hole.

Any dispute with your lawyer's failure to ask for costs is unlikely to be over anything more than $2,000 or so.

I hope this at least is of some assistance.

Kalin1. I was not unsuccessful. The Tribunal ordered they provide certain documents. However there were some particular documents that the ADT agreed with the DET that it was an unreasonable diversion of resources for the Department to provide them. Problem was that these were the same documents that the DET had previously agreed to provide us with and didn’t produce. As well as not asking for costs our Legal Representative didn’t let the ADT know, despite me insisting that they do so, that the reason that we were asking for these documents again is because the DET didn’t honour previous agreements. The DET was presenting the matter like I kept asking for the same information again and again and our legal team just let them present it that way…

Yes the DET destroyed documents, documents that were specifically requested to be set aside in their original form. The Ombudsman then said that he would not investigate any of our allegations because we didn’t have the original answer sheets. This FOI application was necessary as the DET destroyed the original answer sheets and we had to get other documents so as to prove what was already obvious in the documents.

How can those that we are making allegations against of bias and manipulation of test scores and documents be able to just say that they thought that it wasn’t necessary to keep the original documents as they had their computer records? These scores were imported from an outside source! These documents were specifically requested to be set aside under FOI. So, tell me, does any excuse do?

The DET has been behaving in a illegal manner, they are not honouring agreements, misrepresenting and destroying documents so that they can cover up their bias and misconduct. The hearing went for 3 days - not 1. $6,000 would have meant that we could have taken the matter further when the documents awarded clearly supported that we were telling the truth.

Anyway I appreciate you focusing on the issues.