Choi v NSW Ombudsman

Power to appoint a GAL

1. The general rule in the Tribunal is that a party "has the carriage of the party's own case and is not entitled to be represented by any person": NCAT Act, s 45(1). But the Tribunal may "appoint a person to act as guardian ad litem for a party": NCAT Act, s 45(4)(a). Section 45(4)-(6) provided that: (4) The Tribunal may: (a) appoint a person to act as guardian ad litem for a party, or (b) appoint a person to represent a party, or (c) order that a party be separately represented. (4A) In proceedings that directly or significantly affect a child (that is, a person under the age of 18 years) who is not a party to the proceedings, the Tribunal may: (a) appoint a person to act as guardian ad litem for the child, or (b) order that the child be separately represented. (4B) The Tribunal may, at its discretion, revoke any appointment or order made under subsection (4) or (4A). (5) A person is not entitled to legal aid under the Legal Aid Commission Act 1979 merely because the Tribunal has made an order under subsection (4) (c) or (4A) (b). (6) Anything done or omitted to be done by a person of a class prescribed by the regulations who is appointed by the Tribunal to represent a party or other person does not subject the person personally to any action, liability, claim or demand if the thing was done, or omitted to be done, in good faith for the purpose of representing the party or other person. However, any such liability attaches instead to the Crown.
2. There is nothing in these provisions which confines the power to appoint a GAL to any particular circumstances. There is no statutory requirement, for example, that that the party be partially or totally incapable of representing himself or herself. That position can be contrasted with the position under the former s 71(4) of the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act). That provision conferred power on the Administrative Decisions Tribunal to appoint a person to represent a party only "[i]f it appears to the Tribunal that a party is an incapacitated person". That term was defined in s 71(7)(b) to include: "(b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled , of advanced age, a mentally incapacitated person or otherwise disabled."
3. That definition now appears as part of the definition of "vulnerable person" in cl 37(3) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). Clause 37 applies when the Tribunal is deciding whether to make orders to give effect to a settlement reached by the parties. If one of the parties is a "vulnerable person" the Tribunal is to take into account their interests in certain circumstances. 37 MATTERS THAT MAY BE TAKEN INTO ACCOUNT WHEN EXERCISING SETTLEMENT POWERS (1) When deciding whether to make orders to give effect to a settlement reached by parties to proceedings, the Tribunal is to take into account the interests of any vulnerable person (whether or not a party to the proceedings) if the Tribunal considers that: (a) the person may be directly affected by the orders because the person is a party to, or the subject of, the proceedings concerned, and (b) it is appropriate to do so in the circumstances. (2) Nothing in this rule limits the matters to which the Tribunal may have regard when deciding whether to make orders to give effect to a settlement. (3) In this rule: "vulnerable person" means: (a) a minor, or (b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled.
4. The Guideline in relation to GALS for the Administrative and Equal Opportunity and Occupational Divisions of the Tribunal dated August 2017 states that, "A guardian ad litem is a person who the Tribunal appoints to represent a party who is totally or partly incapable of representing themselves." The Guideline goes on to state that when deciding whether to appoint a GAL, the Tribunal will take into account: 1. the "guiding principle" of the NCAT Act which is "to facilitate the just quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 36(1); 2. the nature and extent of the party's incapacity; 3. the effect of any incapacity on the party's ability to represent themselves and, in particular, the effect of the party's incapacity on their ability to: 1. understand the nature of the matter or the issues in dispute; 2. present their views; 3. respond to the other party's arguments; 4. act in their own best interests.
5. The Guideline, is not binding, but it reflects relevant common law principles. Those principles were summarised in Dezfouli v Corrective Services [2011] NSWADT 11 at [39]-[47] in the context of the GAL provisions under the ADT Act. At [46] of that decision I set out the following summary of a decision of the Supreme Court of Victoria. The list of questions Kyrou J has formulated are relevant when determining capacity. 46 In Slaveski v State of Victoria and Others [2009] VSC 596, Kyrou J found that a litigation guardian should be appointed for a self-represented plaintiff who had an anxiety disorder. Mr Slaveski has sued 19 police officers and the State of Victoria seeking damages for various causes of action including assault and battery, wrongful arrest, false imprisonment, malicious prosecution, defamation, trespass to land, trespass to goods and negligence. During the course of a trial that had run for more than 20 days, Mr Slaveski had intermittently behaved in ways which Kyrou J described as disrespectful, argumentative and abusive. Kyrou J usefully identified the following issues as potentially relevant when determining whether a self-represented party is capable of representing himself or herself. These issues accord with the policy objectives and the legal tests that the courts have formulated when considering whether to appoint a person to represent a party with an incapacity. (a) Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims? (b) Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her? (c) Is the plaintiff capable of assessing the impact of particular evidence on his or her case? (d) Is the plaintiff able to understand the Court processes and the basic rules for conducting his or her case when these matters are explained to him or her? (e) Is the plaintiff able to understand Court rulings made during the trial when they are explained to him or her? (f) Assuming the plaintiff is able to understand Court processes, the basic rules of conducting his or her case and Court rulings, is he or she capable of complying with them and directions given by the judge? (g) Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse? (h) Is the plaintiff able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)? (i) Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her? (j) Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her? (k) If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view? (l) Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties' submissions and other developments in the proceeding as at the time the proposal is made? (m) If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff's physical or mental health?
6. The power to appoint a Guardian is primarily protective of the party concerned. My view is that while there is no statutory limitation on the circumstances in which the Tribunal may appoint a guardian ad litem, it may do so at least where it is satisfied that the party is a "vulnerable person" as defined in s 37(3) of the Civil and Administrative Tribunal Regulation 2013 (NSW) (NCAT Regulation). As I have found that Ms Choi comes within this definition, it is not necessary for me to determine the precise scope of the discretion in s 45(4)(a) of the NCAT Act.

The nature and extent of Ms Choi's disability and incapacity

Medical evidence

1. There was no medical evidence before the Tribunal in the current proceedings against the NSW Ombudsman. I asked each party whether they objected to the evidence and submissions that were before the Tribunal in the previous proceedings being considered in the current proceedings. Ms Choi objected saying that time had passed, that she was settling down in Korea and that she was getting better. She provided no up to date medical evidence suggesting that was the case. in the circumstances, i have taken into account the medical evidence available to the Tribunal in the previous proceedings which were determined only two months ago. I summarise that evidence and those submissions below.
2. Ms Choi annexed a "Medical Certificate" dated 21 November 2017 to her submissions dated 22 November 2017 in relation to a costs application made by UTS in the second GIPA review (proceedings No 2017/168430). The certificate states that it is a certification by "Dr. Yoon Yung Kuk, MD, Psychiatrist" of the Clear-Mind Psychiatric Clinic in Seoul, Korea. This document states that Ms Choi was diagnosed with "Borderline Personality Disorder (ICD: F60.3)" and "Obsessive Compulsive Disorder (ICD: F42.2)". There is no elaboration based on the diagnosis.
3. Ms Choi annexed a "Medical Certification" to her submissions dated 16 February 2018 in response to UTS's costs application in the second privacy proceedings. The document was also from Dr Yoon Yung Kuk and was dated 8 December 2017. It read in part as follows: This is to certify that the above named patient has been examed [sic] on 18/11/2017 with following results: Diagnosis: Borderline Personality Disorder (ICD F60.3) Obsessive Compulsive Disorder (ICD F42.2) Clinical feature: She has symptoms of very unstable and fluctuating mood, difficulty of anger control, pressured speech, aggressive behavior, unstable interpersonal relation, transient paranoid or psychotic symptom, obsessive compulsive thought & behavior. ..."
4. A report from Dr Yoon Yung Kuk, dated 24 May 2018, states that he has 18 years' experience as a psychiatrist and that he has seen Ms Choi on seventeen occasions during the period from 2013 to 23 May 2018. His report states that: Ms Choi is capable of representing herself in the court. Ms Choi does not need a guardian ad litem. Ms Choi did not show abnormal perception, or delusion. I did not formally test her cognition and neurological function, but there was no clear evidence of dementia, or intellectual disability, or neurological disability. Recently her mood is more stabilized and symptoms have improved since April 2018. Dose of medication is lowered. I am not able to assess patient's English competency and legal knowledge. Therefore, I do not produce the medical certificate which University of Technology Sydney requests in the Deed.
5. In a supplementary report dated 28 June 2018, Dr Yoon Yung Kuk states that: Ms Choi has not taken any medicines since around mid-May 2018. Ms Choi does not complain any (sic) difficulties in her social life.

Ms Choi's view

1. In submissions in the previous proceedings dated 29 June 2018, Ms Choi says that the medical certificates indicate that she does not need a GAL. In an affidavit dated 31 July 2018, in the previous proceedings, Ms Choi says she has not seen her psychiatrist for "a long time" and is not taking any medication. She emphasises that she is a 'normal person' living in Korea and that she socialises with many people. She provided some photographs of herself and her son and other material in support of her case.
2. In these proceedings, Ms Choi submitted that a GAL should not be appointed for her and that she will ask the Tribunal to appoint a GAL for her when she needs one. She said that the person who has been appointed as her GAL in the proceedings where UTS is the respondent should not waste his time representing her in these proceedings because: 1. he must focus on the proceedings against UTS and "he is not a superman"; 2. her claims will not be successful and the Tribunal will make a costs order; 3. her aim in the GIPA proceedings against the NSW Ombudsman is to influence government to amend s 43(1) of the GIPA Act which states that, "An access application cannot be made to an agency for access to excluded information of the agency"; 4. she will probably not be given permission for her disability discrimination complaint to go ahead but the Tribunal may give her permission for her victimisation complaint to go ahead; 5. she is "not that sensitive about the Tribunal's costs orders any more" because she has "nothing to lose."

Nature of proceedings

1. The issue of whether a GAL should be appointed first arose in Ms Choi's complaint of disability discrimination and a third GIPA review (proceedings No. 2018/51163).
2. As well as the four proceedings previously before the Tribunal, Ms Choi had brought other proceedings against both UTS and other respondents. She initially applied for a review of conduct under the Privacy and Personal Information Protection Act in September 2015. At that stage she was represented by counsel. The Tribunal decided that UTS had not breached Ms Choi's privacy and took no further action: CEU v University of Technology Sydney [2017] NSWCATAD 79. She made a second privacy application in which she was partly represented by counsel and was again unsuccessful: CEU v University of Technology Sydney [2018] NSWCATAD 13.
3. In each of those privacy reviews, the Tribunal ordered Ms Choi to pay part of UTS's costs: CEU v University of Technology Sydney [2017] NSWCATAD 280; CEU v University of Technology Sydney [2018] NSWCATAD 53. One of the reasons for those orders was the excessive and unnecessary written material provided by Ms Choi.
4. Ms Choi has also brought two previous reviews of decisions under the GIPA Act: Choi v University of Technology Sydney [2017] NSWCATAD 198 and Choi v University of Technology Sydney [2018] NSWCATAD 7.
5. In addition, Ms Choi has brought a privacy review against the NSW Ombudsman's Office (CEU v Ombudsman [2017] NSWCATAD 267) and a GIPA review against the Northern Sydney Local Health District (No. 2017/157104). The current proceedings concern the NSW Ombudsman's role in Ms Choi's dispute with UTS.

Ms Choi's description of her disability and behaviour

1. Below are some examples of Ms Choi's own descriptions of her psychological or psychiatric condition as summarised, in part, by UTS in their written submissions: 1. In submissions in reply in second privacy proceeding (No. 2017/62984), dated 17 November 2017 Ms Choi wrote: ... the Respondent is still complaining about the Applicant's repeated activities to mislead the Tribunal to think the Applicant is a vexatious litigant in these proceedings. The Applicant feels overwhelming worries, and obsessed with self-blames 7 should have done better". The Applicant's repeated emails and extra submissions caused by her obsessive-compulsive disorder have been already subjected within NCAT at [2] in CEU v University of Technology Sydney 120171 NSWCATAD 323 and at [19] and [24] in CEU v University of Technology Sydney [20171 NSWCATAD 280 The Applicant wishes the Tribunal to understand her disability (paras 174 and 331 to A5). ... 1. In the same submissions at par 6, she states: ... the Applicant's constantly seeking reassurance causes her to keep asking questions and adding more contents. Also, the Applicant has many critical thoughts Thus, the Applicant could be a ranking number 1 nursing student. Still, the Applicant is fixated on writing these submissions as perfect as possible. The Applicant wishes the Tribunal to construe these proceedings as her serious matters. The Applicant is not a vexatious litigant because she has genuine concerns. ... 1. At par 16, Ms Choi referred to the decision awarding costs against her in the first privacy proceedings (CEU v University of Technology Sydney [2017] NSWCATAD 280), apparently linking the conduct which warranted that costs order to her "repeated rituals" or obsessive compulsive behaviour: ... The Respondent continuously blamed the Applicant's repeated rituals on para 28 to its costs application "..the huge volume of material she generated outside of these proceedings, amounting to thousands of individual pieces of correspondences, the Applicant's conduct has resulted in a vastly excessive and unreasonable burden on the Respondent (and indeed on the Tribunal)." 1. With reference to the filing and service of her first (over 100 page) written submissions in the first privacy proceedings, at par 132(3) Ms Choi again alluded to what she says is obsessive-compulsive behaviour: ... The Applicant posted the 100-plus page submissions twice in December 2015 in case if Registrar could lose her submissions as well. 1. Ms Choi also referred repeatedly to experiencing anxiety and depression at paras 13, 221(6), 239, 250 and 252.
2. Shortly after writing the submissions referred to above, Ms Choi prepared submissions dated 22 November 2017 in relation to a costs application made by UTS in the second GIPA review (proceedings No. 2017/168430). There, Ms Choi became more emphatic in her claims to have psychiatric conditions which were contributing to her persistent litigious behaviour. At par 1, she said: My mental disabilities (obsessive-compulsive disorder and borderline personality disorder), trauma due to the Respondent's contempt of Tribunal application and my inability to access to legal service from Korea are significant factors to cause these proceedings.
3. In response to UTS's costs application in the second privacy proceedings, Ms Choi provided submissions dated 16 February 2018. In that submission she expressed the view at par 7 that: ... I was a self-represented litigant with mental illnesses. I produced A6 by sleeping 20hours/2 weeks while listening to God's direction, which my psychiatrist said a symptom of psychosis. ...
4. At par 22 of the same submission, she said: I did all my best to make my claims tenable as a self-represented mentally ill litigant with no legal representative in Korea. ... My poor concentration and fixation on writing caused me to forget my evidence. ... When I am fixated on one thing, my other functions are impaired...

Mediation

1. The Tribunal conducted a mediation in the complaint under the previous complaint under the Anti-Discrimination Act on 26 February 2016. Negotiations continued beyond that date. UTS requested a medical certificate of competence before it was willing to sign a settlement agreement. In an email dated 28 March 2018 (which was primarily without prejudice, but the relevant part of which Ms Choi has since disclosed to the Tribunal), she wrote: I have recently lost 9 kg and but I told my psychiatrist that I still think that I am fat. My doctor may think I am crazy. He may not write a letter now. I need some time. If I cannot provide you with his letter, I am not able to recevie the [benefit of the proposed settlement agreement].
2. I find that Ms Choi later disclosed the substance of that statement to the Tribunal during the joint directions hearing of the disability proceedings and third GIPA review on 24 April 2018. She said words to the following effect: My psychiatrist will not provide the letter UTS wants... UTS is bullying me with the deed... I want to genuinely resolve. UTS is worrying too much... UTS is making the situation more complicated... It is hard to communicate with UTS' external solicitors... I am not incompetent...
3. As noted above, her psychiatrist offered the following reason for not providing a medical certificate in his report dated 24 May 2018: I am not able to assess patient's English competency and legal knowledge. Therefore, I do not produce the medical certificate which University of Technology Sydney requests in the Deed.

Finding of disability and incapacity

1. I am satisfied on the basis of the evidence and submissions, that Ms Choi has a disability which means that she is incapable of representing herself in each of the four proceedings. It is not necessary for me to make a definitive finding about the precise nature of that disability. It is sufficient if the person is "intellectually, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled." I am satisfied on the basis of the diagnosis of her psychiatrist of "Borderline Personality Disorder (ICD : F60.3)" and "Obsessive Compulsive Disorder (ICD : F42.2)", Ms Choi's acceptance of those diagnoses and her behaviour, that she has a relevant disability. I am also satisfied that her incapacity is caused by her disabilities. For the reasons which I give below, this is an appropriate case to exercise the discretion to appoint a person to act as a GAL.

Opinion of psychiatrist

1. I have taken the opinion of her psychiatrist, Dr. Yoon Yung Kuk, into account but given it no weight. He says that Ms Choi is capable of representing herself and that she does not need a guardian ad litem. I am not satisfied that Dr Yoon Yung Kuk was apprised of the factual basis for the application. In addition, he has given inconsistent opinions. He did not provide a "certificate of competence" in connection with a settlement negotiation. He gives as a reason for that decision, his inability to assess Ms Choi's English competency and legal knowledge. However, neither of those considerations is relevant to the question of whether Ms Choi is capable of representing herself in proceedings.

Understanding of issues in dispute

1. Ms Choi anticipates that she will not succeed in her application for review under the GIPA Act because she has applied for "excluded information" and such an application is invalid under s 43 of the GIPA Act. However, she has said in her submission that when the Tribunal's decision is published, she will "make a Youtube clip to show how unfairly Ombudsman NSW uses the (sic) s 43 of the GIPA Act. In doing so, s 43 of the GIPA Act will be amended." If Ms Choi accepts that the information is excluded information, it would be misconceived, if not an abuse of process, to proceed with the application.
2. Similarly, if Ms Choi accepts that her complaint of disability discrimination is lacking in substance, it would be an abuse of process to continue with her application seeking the Tribunal's permission for the complaint to go ahead.
3. In previous proceedings Ms Choi has been unable to confine her written evidence and submissions to the issues in dispute. Instead of addressing and responding to those issues, Ms Choi makes allegations and raises matters which are not in issue. In the second costs decision, for example, the Tribunal found that Ms Choi had made unfounded or irrelevant allegations, including serious claims of forgery and fraud by officers of UTS and its solicitors: CEU v University of Technology Sydney [2018] NSWCATAD 53 at [17]-[22] and [28].
4. Critically, in these proceedings, Ms Choi is intent on continuing with her claims in circumstances where she understands that she is unlikely to succeed. Her motivation in respect of the GIPA application is to convince parliament to change the law. As I have said, it is likely that such proceedings would be regarded as vexatious or misconceived.
5. Ms Choi does not have the capacity to decide whether or not it is in her best interests to settle proceedings or to withdraw proceedings. That is apparent from the history outlined above.

Voluminous written material

1. The creation of excessively burdensome written material is a pattern of behaviour which Ms Choi herself has attributed to the disabilities she says she has. In the words of UTS: She has referred to: "repeated emails and extra submissions caused by her obsessive-compulsive disorder". She has said that "constantly seeking reassurance causes her to keep asking questions and adding more contents" and that she "is fixated on writing these submissions as perfect as possible". In referring back to the first costs decision, she describes the excessive amount of material generated as part of her "repeated rituals". Having been "fixated on critical thoughts about UTS" was what "motivated [her] to send many emails"; she "emails, re-emails to double check and sends an email with feeling the urge to repeat". She says "all my repeated complaint emails and activities are due to my obsessive-compulsive disorder". Several of the grounds in her second GIPA review were "uncontrollable". In creating this kind of written material, the Applicant says she has acted in a way which appears detrimental to her own health, having "slept around 3 hours/day to prepare [one set of submissions] for a month". Another set of submissions she said she wrote "by sleeping 20hours/2 weeks while listening to God's direction". The Applicant has described herself on a number of occasions as being "fixated". The behaviour recounted above bears that description out. It is a frame of mind which deprives her of the ability to make sensible compromises, both in terms of compromising what she seeks to achieve in the litigation by means of a sensible settlement, and compromising between the litigation and other aspects of her life. That will inevitably impact adversely on the outcomes of the proceedings.

Costs orders

1. One effect of the filing of voluminous material is that Ms Choi has had two costs orders made against her. The first costs order was primarily based on the undue and unnecessary burdens imposed on UTS by her extensive material which was, at times, difficult to follow: see CEU v University of Technology Sydney [2017] NSWCATAD 280 at [19] and [24]-[26]. The second costs order was made, in part, on a similar basis - being that Ms Choi "conducted the proceedings in a way that unnecessarily disadvantaged the respondent", as "particularly manifested in the applicant's 198 pages of submissions. These submissions were extremely lengthy, generalised, apt to confuse and frequently misconceived": CEU v University of Technology Sydney [2018] NSWCATAD 53 at [11] (see further at [12]-[16]). Ms Choi submits that she is "not that sensitive about the Tribunal's costs orders any more." However, the fact that further costs orders may be made against her if she persists with unmeritorious applications, is relevant to whether a GAL should be appointed.

Role of GAL

1. The GAL must always act in a way that is in the best interests of Ms Choi but he or she does not have to act on Ms Choi's instructions. That means that the GAL does not have to do what Ms Choi asks them to do. If the parties agree to settle the case, the Tribunal must take into account the interests of Ms Choi before approving any settlement: NCAT Regulation, cl 37(1).
2. When a GAL is appointed the other parties and their lawyers must communicate directly with the GAL. They must give all documents to the GAL, or their lawyer if they have one, as if the GAL is the party. The GAL is able to instruct a lawyer on a pro bono basis if that person decides to do so.

Orders

1. The name of the respondent in proceedings 2018/00226998 is amended to NSW Ombudsman.
2. A person is appointed as a guardian ad litem for Ms Choi in proceedings 2018/00226998.
3. A person is appointed as a guardian ad litem for Ms Choi in proceedings 2018/00299612. Note: the person is to be appointed from the Guardian Ad Litem Panel which is the panel constituted as the Guardian Ad Litem Panel by the Secretary of the Department of Justice: Civil and Administrative Tribunal Regulation 2013 (NSW), Reg 10. An order will be made naming the person appointed when that advice is received from the Guardian Ad Litem Panel.
4. Both proceedings are listed for directions on 6 November 2018 at 12.30 pm for case management.

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: 19 October 2018