These are the reasons for decision for the orders made on 18 December 2018 dismissing proceedings 2018/299612 and 2018/226998 between Jae Hee Choi and the NSW Ombudsman.
[2]
Background
Proceedings 2018/226998 are an application made to the Tribunal on 24 July 2018 by Ms Choi under the Government Information (Public Access) Act 2009 (GIPA Act) for a review of a decision made by the NSW Ombudsman that her application for information was invalid. The reason for that decision was that the NSW Ombudsman formed the view that the requested information was "excluded information" because it relates to one of the following functions of the office of the Ombudsman: "complaint handling, investigative and reporting functions ..." : GIPA Act, s 43 and Schedule 2, cl 2.
Proceedings 2018/299612 are complaints referred to the Tribunal on 25 September 2018 by the President of the Anti-Discrimination Board at the request of Ms Choi, after the complaints against the NSW Ombudsman alleging disability discrimination and victimisation under the Anti-Discrimination Act 1977 (AD Act) had been declined as lacking in substance. Leave would be required for that matter to proceed in the Tribunal: Anti-Discrimination Act, s 96.
Both proceedings relate to the NSW Ombudsman's role in Ms Choi's dispute with the University of Technology Sydney. Costs orders have been made against Ms Choi in two of those proceedings (CEU v University of Technology Sydney [2017] NSWCATAD 198 and Choi v University of Technology Sydney [2018] NSWCATAD 7).
On 19 October 2018 Deputy President Hennessy appointed a guardian ad litem (GAL) to act for Ms Choi in the proceedings, pursuant to s 45(4) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act): Choi v NSW Ombudsman [2018] NSWCATAD 248. Orders prohibiting the disclosure of Ms Choi's name had previously been made in the proceedings under the Privacy and Personal Information Protection Act 1998. At paragraph [8] Deputy President Hennessy noted that Ms Choi had requested that she be identified by name. That course has been adopted in these reasons for decision.
In her reasons for decision Deputy President Hennessy outlined the legislative basis for appointment of a GAL and the principles to be applied; and considered the medical and other evidence as to the nature and extent of Ms Choi's disability and incapacity to represent herself, including her behaviour when conducting proceedings. Deputy President Hennessy was satisfied that Ms Choi has a disability that means she is incapable of representing herself, and that it was appropriate to appoint a person to act as GAL. Deputy President Hennessy noted that in previous proceedings Ms Choi has been unable to confine her written evidence and submissions to the issues in dispute, and there is a pattern of behaviour leading to the creation of excessively burdensome material, one consequence of which is the making of costs orders against her. Deputy President Hennessy noted that Ms Choi is intent on continuing with the claims in circumstances where she understands that she is unlikely to succeed, and it was likely that the proceedings would be regarded as vexatious or misconceived. Deputy President concluded that Ms Choi does not have the capacity to decide whether or not it is in her best interests to settle or to withdraw proceedings.
Deputy President Hennessy summarised the role of the GAL:
43. 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).
44. 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.
The person initially appointed from the Guardian Ad Litem Panel by the Secretary of the Department of Justice in accordance with reg 10 of the Civil and Administrative Tribunal Regulation 2013 had to withdraw, and Mr Bill Hoyles was appointed as GAL for the applicant.
[3]
Request to dismiss the proceedings
On 17 December 2018 Mr Hoyles wrote to the Tribunal to withdraw the applications and request that they be dismissed. On 18 December 2018 at a short hearing Mr Hoyles explained why he was of the view that it is the best interests of Ms Choi that the proceedings be dismissed; Ms Smith on behalf of the NSW Ombudsman expressed the views of the respondent and consented to the withdrawal; and Ms Choi stated her views as to why she opposed that course. At the conclusion of the hearing, orders were made dismissing the applications, with reasons to be provided.
On 17 December 2018 the Tribunal received an application from Ms Choi referring to the decision appointing a guardian ad litem, and requesting that the Tribunal "reverse its decision to appoint a Guardian ad Litem", and "postpone the two hearings (?) on 18 December 2018". Ms Choi explained at the hearing that she wanted the delay because she has asked the ICAC to investigate corrupt conduct by Mr Hoyles, the University of Technology Sydney, and the NSW Ombudsman, and the Tribunal should not make a decision until the ICAC has made a decision.
The Tribunal decided not to postpone the hearing. Ms Choi has not lodged an internal appeal against the decision of 19 October 2018 to appoint a person to act as a GAL. Ms Choi states that she has gained more capacity to represent herself, however has provided no medical evidence other than a copy of a medical certificate dated 24 May 2018 which was considered by Deputy President Hennessy in her reasons for decision. The acknowledgement in an email of 18 December 2018 (forwarded by Ms Choi to the Tribunal) that the ICAC has received complaints of corruption, and may investigate after an initial assessment, would not be sufficient basis to postpone resolution of these two matters in the circumstances discussed below.
Mr Hoyles provided a written report outlining his reasons for the decision to withdraw the applications, including a summary of the views of Ms Choi. In that report Mr Hoyles explains his consideration of each of the applications to the Tribunal, and his reasons as to why he is satisfied that those applications lack merit. He states that he is concerned that the continuation of the proceedings is adversely impacting on Ms Choi's mental health. He notes that Ms Choi disagrees with his decision, stating:
Ms Choi believes that I am a liar and that I and others have been corruptly influenced by the NSW Attorney General, and/or the NSW Department of Justice and/or Legal Aid NSW, and/or the NSW Ombudsman and/or the President of NCAT to have these matters dismissed.
At the hearing on 18 December 2018 Mr Hoyles outlined the process he has undertaken for each of the applications. He has received 61 emails from Ms Choi this month, and she is increasingly expressing conspiracy and corruption theories. In response to a complaint from Ms Choi that he had rejected legal aid, Mr Hoyles explained that the previously appointed GAL had made an unsuccessful application to Legal Aid in respect of the GIPA application. His concern is that Ms Choi's mental health is being affected by the continuation of these and other Tribunal proceedings, and he is of the opinion that there is no possibility of resolving the proceedings in a way that would be satisfactory to Ms Choi. To continue the proceedings would not be in her best interests and is impacting on her ability to move forward.
Ms Choi stated that the matters should not be dismissed until after ICAC has investigated her complaints of corruption. Mr Hoyles is acting against her interests. Deputy President Hennessy appointed a GAL to work for justice.
[4]
Discussion and findings
The Tribunal may dismiss proceedings under s 55(1)(a) of the NCAT Act "(a) if the applicant…withdraws the application…to which the proceedings relate". The Tribunal has written notice of withdrawal signed by Mr Hoyles. Mr Hoyles' appointment as GAL for Ms Choi was confirmed in a letter to the Tribunal dated 8 November 2018 from the Office of the General Counsel, Department of Justice.
On the findings made when the appointment was made, Ms Choi is a vulnerable person as defined in rule 37(3) of the Civil and Administrative Tribunal Rules 2014, and her interests must be taken into account when deciding whether to make orders giving effect to a settlement reached by parties to proceedings where the orders may directly affect the person.
As noted by Deputy President Hennessy, a GAL must act in a way that is in the best interests of the person for whom he or she has been appointed. The Tribunal is satisfied that Mr Hoyles has done so, notwithstanding Ms Choi's opposition to his decision to withdraw the applications. It is clear from Mr Hoyles' report of 17 December 2018 that he has taken into account that, as Ms Choi acknowledged in the hearing on the question of the appointment of a GAL, neither application is likely to be successful. His concerns for the impact of continuing the proceedings on Ms Choi's mental health as demonstrated in the escalating correspondence and allegations, is supported by the correspondence received by the Tribunal from Ms Choi, which includes allegations of fraud and corruption against an increasing range of people. Ms Choi's submissions as to why the proceedings should not be dismissed have been taken into account. The Tribunal concurs with the GAL's conclusion that it is not in Ms Choi's interests that the proceedings continue, and that the appropriate course is that they be dismissed.
[5]
Orders
For the above reasons, the Tribunal made the following orders:
1. Application 2018/226998 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013.
2. Application 2018/299612 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013.
[6]
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
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Decision last updated: 08 January 2019