CEU v University of Technology Sydney

NCAT Appeal Panel|2019-09-27

Background

The Appellant, who has been referred to in the proceedings below as CEU, has appealed from the decision of the Tribunal at first instance in six sets of proceedings. In those proceedings, with one exception, the Appellant was the applicant. The Respondent (UTS) was the respondent in all of the proceedings below, with one exception. The exception concerned proceedings brought by UTS for an order under s 110 of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) that CEU not be permitted to make an access application without first obtaining the approval of the Tribunal.
All of the proceedings relate to CEU's enrolment, in 2015 and 2016, as a student at UTS.
Five of the six orders which are the subject of this appeal were orders dismissing applications commenced by CEU. The sixth order was a Consent Order in the proceedings commenced by UTS and, as stated above, that order was to the effect that, pursuant to s 110 of the GIPA Act, CEU is not permitted to make an access application to UTS without first obtaining the approval of the Tribunal.
It is relevant to record that the Tribunal had appointed a guardian ad litem (GAL) to act in the interests of CEU in the proceedings which are the subject of this appeal. Mr Hoyles was CEU's GAL at all relevant times.
We will refer to the decision under appeal, which is dated 8 January 2019, as the Decision. Orders were made following a hearing on 18 December 2018 and the Decision contains the reasons for those orders.
CEU appeared before us by telephone, with the assistance of an interpreter. CEU presently lives in South Korea.

Notice of Appeal

A Notice of Appeal was lodged on 14 February 2019. Although it may have been lodged marginally out of time, UTS took no issue in that respect. We will make an order under s 41 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act), that time be extended for the filing of the appeal to 14 February 2019.
By an email dated 23 September 2019, CEU communicated with the Tribunal that she wished the appeal to be treated as an application to vary or set aside the Decision, relying upon s 53 of the NCAT Act. However, at the hearing of the appeal, CEU withdrew that application and requested the Appeal Panel to deal with the appeal as an appeal.

Grounds of Appeal

The grounds of appeal essentially submit that the actions of the GAL in withdrawing CEU's five Applications and consenting to the s 110 order in the UTS Application were actions taken against the interests of CEU. The grounds are elaborated upon in the form of eight alleged "errors" which may be summarised as follows:

Error 1 The GAL failed to act in a way that was in CEU's interests by withdrawing the proceedings on 10 December 2018 following his "relevant manager's instruction".

Error 2 The Tribunal failed to take into account CEU's interests in that the GAL agreed at the mediation to withdraw the proceedings conditionally and that he withdrew the proceedings prior to UTS amending clauses in the Deed of Settlement.

Error 3 The GAL withdrew CEU's Applications before the Deed of Settlement was in final form.

Error 4 The Tribunal failed to take into account CEU's interests by relying on the GAL's "incorrect evidence, incorrect opinion and baseless observation". CEU submitted that the GAL's assessment of her mental condition was inaccurate and that her behaviour in emailing the Attorney General was contributed to by the email she received from the GAL.

Error 5 The Tribunal failed to provide a "standard environment to amend the clauses in the Deed which is against natural justice". In particular, CEU submits that the timeframe between releasing the Deed of Settlement to its signing (seven days) was too short.

Error 6 There was a serious procedural irregularity in the course of appointing a GAL in the proceedings commenced by UTS.

Error 7 The GAL acted as if he was "my GAL" in the UTS Application and the Tribunal relied on the GAL's decision in relation to that Application.

Error 8 The Tribunal rejected CEU's application to reverse the decision to appoint a GAL on 6 December 2018 and on 14 December 2018. The Tribunal erred at [21] in stating that it had no power to revoke the appointment of the GAL.

In addition, the Notice of Appeal contained a number of grounds by which CEU sought leave to appeal. These grounds are in substance the same as those identified in the eight errors described above.

Reply to Appeal

UTS has filed a Reply. In respect of each of the eight alleged errors UTS says:

Error 1 CEU erroneously infers that there has been some relevant manager's instructions. The inference is baseless. In any event there is no connection between this inference and the interests of CEU and there is no demonstrated failure to take any relevant consideration into account.

Error 2 This assertion seeks to draw a distinction between what occurred at the mediation and the subsequent execution of a Deed of Settlement. The distinction is insubstantial and there was no failure to take any relevant consideration into account.

Error 3 This ground again seeks to draw a distinction of an insubstantial nature pertaining to the date on which the GAL communicated his decision to withdraw the various proceedings. There was no failure to take any relevant consideration into account.

Error 4 It was permissible for the Tribunal to take into account the views of the GAL who was acting in the proceedings in the place of CEU. The views so expressed were taken into account as matters of opinion and belief, and it is not possible to impugn the Tribunal's decision-making in that respect, as CEU does, by stating her disagreement with the guardian's views.

Error 5 This asserted error is in the nature of an allegation of a failure to accord procedural fairness, but the GALmade no complaint to the Tribunal at first instance that he had insufficient time to consider the matter. There is no relevance in CEU's reference to draft provisions of a Deed of Settlement which were not retained in the final document.

Error 6 There was no procedural irregularity such as CEU alleges. A GAL was appointed in the UTS application on the Tribunal's own motion. There was no error or injustice in the decision to do so, the Tribunal having already appointed the same individual as GAL in the other extant proceedings.

Error 7 The decision of the GAL to settle the UTS proceedings was within his power. There was no failure by the Tribunal, in approving that aspect of the settlement. The Tribunal did not fail to have regard to any relevant consideration, nor was there any other error or miscarriage of justice in this respect.

Error 8 CEU's informal attempts to have the appointment of the GAL "reversed" was not brought by way of appeal, was not supported by any relevant evidence and did not advance any credible basis to show that CEU had recovered from her incapacity. There was neither error nor injustice in the way that the matter was dealt with by the Tribunal.

CEU's Submissions

We have considered CEU's written submissions provided prior to the hearing of the appeal and her oral submissions. In addition, at the hearing of the appeal, we permitted CEU to file and serve written submissions concerning her review of the sound recording of the hearing on 18 December 2018. This direction arose because CEU had applied for a copy of the sound recording on 1 September 2019 but had not received it by the time of the hearing of the appeal. In order to ensure that CEU had an additional opportunity to make submissions about the conduct of the hearing we made a direction to the effect that CEU and UTS could provide submissions arising out of the review of the sound recording. These will be referred to later in these reasons.
The substance of the submissions put forward by CEU have been set out earlier in our description of the grounds of appeal. In addition CEU submitted that: 1. The GAL expressed disagreement with the inclusion of clauses 2.9 and 2.10 of the Deed of Settlement, yet he still agreed to withdraw CEU's Applications. 2. Both the GAL and the Tribunal failed to take into account CEU's interest in having copies of her graduation certificates.

UTS Submissions

UTS's submissions may be summarised as follows:

Error 1 CEU's assertion that the Tribunal erred by failing to have regard to the instruction to the GAL from a manager was based on an inference drawn by CEU from an email allegedly sent by the GAL. UTS submitted that there was a positive reason not to draw the inference that the GAL was ordered or influenced to settle the proceedings and that is that the GAL was independent of any governmental oversight or influence, and was duty-bound to act in the interests of CEU. On the evidence, there is no basis in fact for the allegation made by CEU. In any event, there is no demonstrated failure to take any relevant consideration into account.

Error 2 The agreement reached at the mediation anticipated that a formal deed of settlement would be executed following the mediation. CEU's reference to clauses 2.9 and 2.10 to which the GAL objected is misconceived because the GAL successfully objected to those clauses which were in an earlier draft of the Deed. As a consequence, those clauses were removed in a later draft of the Deed.

Error 3 This alleged error is based upon the GAL's indication that he intended to withdraw the Applications at a time when the Deed had not yet been amended. However, the Deed was amended and the Decision was made having regard to the terms of the amended Deed.

Error 4 UTS submitted that it was permissible for the Tribunal to take into account oral evidence including the opinions of the GAL.

Error 5 The GAL made no complaint to the Tribunal about having insufficient time to consider the withdrawal of the Applications.

Error 6 UTS submitted that there was no irregularity as alleged. The GAL was appointed on the Tribunal's own motion and was the same individual appointed in the other extant proceedings.

Error 7 UTS submitted that the decision of the GAL to settle the Application brought by UTS was within his power. The fact that when the mediation was ordered it did not include the UTS Application does not mean that the GAL acted outside his authority.

Error 8 UTS submitted that CEU had sought to "reverse" the appointment of the GAL by lodging an "application for miscellaneous matters". The Tribunal was correct in determining that the appropriate procedure was for CEU to lodge an appeal against the orders appointing a GAL, which course had not been taken by CEU prior to the matters being dismissed.

UTS submitted, in relation to the leave grounds, that CEU had not demonstrated any valid reason why leave ought to be given having regard to the principles set out in Collins v Urban [2014] NSWCATAP 17 at [65]-[79].
UTS submitted that the appeal should be dismissed and that CEU should be ordered to pay UTS's costs of the appeal.
UTS also submitted that the Appeal Panel should exercise power under s 8(6) of the Vexatious Proceedings Act 2008 (NSW) to make a recommendation to the Attorney General that the Attorney General should consider making an application for a vexatious proceedings order in relation to CEU.

CEU's Reply Submissions

CEU's reply submissions may be summarised as follows: 1. The Deed which the GAL approved did not take her interests into account. 2. Her language in written communications that she wanted to "screw" UTS was caused by her disability and poor English language skills. 3. The GAL withdrew CEU's Application notwithstanding that he knew that his withdrawal was not in CEU's interests. 4. UTS has not complied with the Deed in that in March 2019 it seized almost $20,000 from CEU's account. 5. The Tribunal did not take CEU's submissions into account, in particular the submissions of 4 December 2018.

Post Hearing Submissions

As stated earlier CEU requested an opportunity to review the sound recording of the proceedings under appeal and to make submissions consequent upon that review. Those submissions repeat in part submissions made earlier. However, the following is a summary of additional submissions: 1. The Tribunal should have examined the Deed to determine if the clauses agreed to by CEU and were "congruent" with CEU's submissions. However, the Tribunal considered the Deed "generally" and not in detail. 2. Contrary to the Decision, the Tribunal may reverse its decision to appoint a GAL and CEU made such a request by filing an Application for Miscellaneous Matters. 3. The Tribunal heard from the GAL as to why the deed was in her interests but "inconsistently" gave CEU time only for brief comments.
In addition, CEU filed submissions received in December 2019. They do not add to the submissions made earlier.

UTS's Post-Hearing Submissions

UTS has made submissions in response to the above submissions from CEU and those submissions may be summarised as follows: 1. The Decision expressly records that the Tribunal took account of CEU's submissions. In any event the Tribunal was only obliged to hear from the GAL. CEU was heard only as a courtesy. 2. CEU's desire to amend the clauses in the Deed was not relevant. The Deed had been agreed between the GAL and UTS and the question was whether its terms were in CEU's best interests.

Decision

Appeals from decisions made in the Tribunal are regulated by s 80 of the NCAT Act. Essentially, that means that an appeal lies, as of right, on any question of law or with leave of the Appeal Panel on other grounds.
In the circumstances of this appeal, we are of the opinion that no error of law has been identified and that there are no circumstances justifying the granting of leave to appeal. We are of the opinion that the appeal must be dismissed. Our reasons are set out in the following paragraphs.
Prior to the hearing on 18 December 2018, the parties had conducted a mediation which had resulted in an agreement being reached in terms of a document headed "Heads of Terms" signed by a representative of UTS and by the GAL. That document contemplated the preparation of, and entry into, a Deed to be drafted following the mediation. The purpose of the hearing on 18 December 2018 was to obtain orders from the Tribunal dismissing the five Applications commenced by CEU and also to obtain the proposed Consent Order in respect of the Application commenced by UTS.
The Tribunal had power to make orders for the dismissal of an application and to make orders giving effect to any agreed settlement reached between the parties: see s 59 of the NCAT Act. The Tribunal also recorded the requirement to take into account the interests of any vulnerable person, that requirement being contained in rule 37 of the Civil & Administrative Tribunal Rules 2014 (the Rules). In the context of these proceedings that meant the interests of CEU. The evidence before the Tribunal included evidence that the GAL had been provided with a Deed of Settlement and Release for signature, the terms of which reflected the agreement reached at the mediation.
We will deal with each of the eight alleged errors individually.

Error 1

There are two components to this alleged error. The first is that the GAL failed to act in a way that was in the best interests of CEU by withdrawing the Applications on 10 December 2018. The Tribunal gave detailed consideration to the opinions of the GAL and to the opinions of CEU as to the merits of the settlement involving the withdrawal of the Applications. CEU has not put forward any argument which would or could lead to the conclusion that the withdrawal of the Applications (and consequential dismissals) was not in her best interests. The fact that the GAL agreed on 10 December 2018 to seek dismissal orders does not form the basis of any criticism of the GAL. That was the GAL's assessment then as it was on 18 December 2018.
The second component of Error 1 concerns the allegation that the GAL acted on instructions from a manager. That appears to be based on an alleged email from the GAL to CEU which CEU argues supports the conclusion that the GAL agreed to the settlement on the basis of the direction of a third party. We agree with UTS that one cannot infer from the email that the GAL acted other than independently, and given that he was duty bound to form his own view as to what should be done in CEU's interests there is no evidence justifying the conclusion that he acted contrary to that duty.
We are not persuaded on the basis of the submissions put by CEU that there was inappropriate external pressure or that the GAL acted in any manner other than as a consequence of his own appropriate consideration of CEU's position. This ground of the appeal is rejected.

Errors 2 and 3

In our view, ground 2 has no substance because, even if the GAL had agreed to withdraw the proceedings at the mediation, it was conditional on the entry into the Deed and still necessary for the Tribunal to subsequently dismiss the proceedings and, in so doing, to consider whether the settlement was in the interests of CEU. The same comment applies for Error 3 which is to the effect that the Tribunal should have questioned why the GAL agreed to withdraw the proceedings before the Deed was in final form.

Error 4

This ground is misconceived in that the Tribunal took into account the views of both the GAL and those of CEU but preferred the views of the GAL. The Decision displays no error in the Tribunal's consideration of the views of each.

Error 5

In our view, Error 5 has no foundation and is rejected. There is no evidence that the timeframe caused the GAL any prejudice.

Error 6

This error concerns the appointment of the GAL on 17 September 2018.There is no evidence of any irregularity in the appointment and the ground is rejected.

Error 7

This ground is misconceived as the Tribunal was obliged to consider the views of the GAL as the person representing the interests of CEU.

Error 8

There is no basis for setting aside the appointment of the GAL. We refer to CEU's submissions that the Tribunal had power to "reverse" the appointment of a GAL. As an alternate to an appeal, the Tribunal may, in our view, "reverse" the appointment of a GAL if the Tribunal is satisfied, on the basis of evidence, that the subject person (in this case CEU) has recovered her or his mental capacity such that she or he is able to manage her or his own affairs before the Tribunal. Such an application, supported by evidence, was not put forward by CEU. CEU's application was, in substance, an appeal against the earlier decision appointing the GAL.
We turn to the leave grounds. The Tribunal may, with leave, uphold an appeal if it is of the view that a substantial miscarriage of justice has occurred. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel describe the circumstances by which such an appeal must be assessed. Usually leave will only be granted if it is clear that a matter of principle is involved or a clear injustice. In our view those considerations do not exist in this case.
In addition we wish to add the following comments on the merits of this appeal.
The Notice of Appeal was accompanied by an Affidavit of CEU which attached a copy of the Deed of Settlement referred to earlier dated 10 December 2018. The Deed contains a confidentiality provision and it included provisions that provided benefits to CEU. It is clear from the Decision that the Tribunal considered the terms of the Deed overall and reached the conclusion that it was in the best interests of CEU to "end these proceedings on the basis of the agreement reached at the mediation".
In considering the settlement the Tribunal touched upon relevant considerations. These included the relative lack of merit of the Applications, the consequences of the ongoing nature of the Applications upon CEU's mental health as well as the benefits contained in the Deed. In our view, there is nothing in the Decision which displays an error of law, nor is there any basis for granting leave to appeal.
Accordingly, we propose to dismiss the appeal.
We refer to the submission of UTS that we should recommend to the Attorney General that the Attorney should consider making an application for a vexatious proceedings order in relation to CEU. It is not appropriate for such action to be requested by a Respondent in the course of an appeal such as this. We decline to deal with the application in this context.
UTS also submitted that we should order that its costs of the appeal be paid by CEU. We do not have the benefit of submissions from UTS in support of such an order. We will to make directions for submissions to be made on costs in the event that UTS wishes to pursue such an order.

Orders

We make the following orders; 1. The time for lodging the appeal is extended to 14th February 2019. 2. The appeal is dismissed. 3. If the respondent seeks an order that its costs of the appeal be paid by the appellant it must file and serve submissions in support within 21 days. 4. If the respondent complies with order (3) the appellant may file and serve submissions in opposition within 21 days thereafter. 5. Submissions on costs should include a submission as whether the appeal panel may dispense with a hearing on costs and decide that matter on the papers.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 09 March 2020

Administrative Tribunal Act 2013(NSW)

Administrative Tribunal Rules 2014(NSW)

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