Choi v NSW Ombudsman [2020] NSWCATAP 36 | Case summary

NCAT Appeal Panel|2019-09-27

Background

The Appellant, Ms Choi, has appealed from a decision made on 8 January 2019 by the Tribunal at first instance which dismissed two of the applications made by her to the Tribunal under s 55(1)(a) of the Civil & Administrative Tribunal Act 2013 (NSW). That section permits the Tribunal to dismiss proceedings when they are withdrawn. A guardian ad litem (Mr Hoyles) had been appointed to act in the interests of Ms Choi in the proceedings. Mr Hoyles decided, on Ms Choi's behalf, to withdraw the applications and, as a consequence, sought an order from the Tribunal dismissing the applications. We will refer to the decision of the Tribunal under appeal as "the Decision".
This decision also concerns a second appeal bought by Ms Choi. She has appealed from the decision made on 19 October 2018 by which the Tribunal appointed a person as guardian ad litem for her in proceedings 2018/00226998 and 2018/00299612. Ultimately Mr Hoyles was appointed to be that guardian. We will refer to the decision from which this appeal is brought as the "GAL Decision" and we will deal with that appeal later in these reasons. We will firstly deal with the appeal from the Decision.

The Decision

The following is a summary of the Decision: 1. The first of the two proceedings appealed from was an application brought by Ms Choi under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) Ms Choi sought a review of a decision made by the Respondent that her application for information was invalid. 2. The second of the two proceedings was a matter referred to the Tribunal by the President of the Anti-Discrimination Board under the Anti-Discrimination Act 1977 (NSW) at the request of Ms Choi. This matter concerns complaints that Ms Choi had made alleging disability discrimination and victimisation. 3. Both the first and the second proceedings relate to the Respondent's role in Ms Choi's dispute with the University of Technology Sydney. 4. The Tribunal made an order on 19 October 2018 appointing a guardian ad litem (a GAL) and Mr Hoyles was appointed. The Decision records that Mr Hoyles provided a written report outlining his reasons for the decision to withdrawn the applications, including his reasons as to why he was satisfied that the applications lacked merit. Mr Hoyles also expressed concern that the continuation of the proceedings would adversely impact upon Ms Choi's mental health. 5. At [17] of the Decision, the Tribunal noted that 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 stated that it was satisfied that Mr Hoyles had done so, notwithstanding Ms Choi's opposition to the decision to withdraw the applications. The Tribunal found that Mr Hoyles had taken into account that neither of Ms Choi's applications was likely to be successful. Ms Choi's submissions in opposition were heard and noted but the Tribunal concurred with the conclusions of Mr Hoyles that it was not in Ms Choi's interests that the proceedings continue, and that the appropriate course was that they be dismissed.

Notice of Appeal (AP 19/07745)

A Notice of Appeal was filed on 14 February 2019. Subject to the Tribunal extending time, an appeal must be filed within the time required by the Civil & Administrative Tribunal Rules 2014 (the Rules). The Respondent submitted that the time for the filing of this appeal expired on 6th February 2019. We propose to make an order extending the time for filing of the appeal to 14 February 2019. The reason that an order extending time should be made in this case is that the delay was short (approximately 8 days) and there was no evidence of prejudice to the Respondent occasioned by that delay.
The grounds of appeal may be summarised as follows: 1. The Tribunal did not appoint Mr Hoyles as Ms Choi's GAL pursuant to the order made on 19 October 2018. However, the Member relied on the decision of Mr Hoyles in making the orders recorded in the Decision. 2. Mr Hoyles did not act in a way which was in the best interests of Ms Choi. 3. The Tribunal relied upon Mr Hoyles' "baseless legal opinion". 4. The Tribunal failed to take account of Ms Choi's interests by relying upon the "baseless psychological opinion" of Mr Hoyles that continuing the proceedings would impact upon Ms Choi's mental health negatively. 5. There was no evidence that Ms Choi's decision to raise an issue of alleged corruption in the Attorney General's Office and in the University of Technology Sydney (UTS) was the result of the impact of continuing these proceedings on Ms Choi's mental health. 6. The Tribunal rejected Ms Choi's applications made on 6 and 14 December 2018 to "reverse" the decision to appoint a GAL and, as a consequence, Ms Choi was unable to represent herself.
Ms Choi alleged that the Tribunal at first instance made six errors which substantiated her grounds of appeal. We will summarise those alleged errors below: 1. Error 1: on 25 October 2018 a Dr Johnson was appointed as Ms Choi's GAL. Mr Hoyles was not appointed Ms Choi's GAL under the order that was made on 19 October 2018. An order was not made appointing Mr Hoyles as GAL. 2. Error 2: Mr Hoyles did not act in Ms Choi's interests by omitting to make a disability application to Legal Aid. 3. Error 3: the Tribunal relied upon Mr Hoyle's "baseless legal opinion" that Ms Choi's applications lacked merit. 4. Error 4: the Tribunal relied upon Mr Hoyles "baseless psychiatric opinion" that continuing the proceedings would worsen Ms Choi's mental health. The Tribunal was in error in stating that the allegations of corrupt conduct within the Office of the Attorney General illustrates the negative impact of continuing the proceedings on Ms Choi's mental health. 5. Error 5: there was no evidence that the Appellant's raising of an issue of alleged corruption in the "Attorney General v UTS is the impact of continuing the proceedings on the Appellant's mental health". 6. Error 6: the Tribunal was in error in rejecting Ms Choi's application to "reverse" the decision to appoint a GAL.

The Respondent has filed a Reply, the effect of which may be summarised as follows: 1. Error 1: there was no error. The Tribunal ordered that the GAL be appointed and the Secretary of the Department of Justice accordingly appointed Dr Johnson. Following Dr Johnson's withdrawal, the Secretary appointed Mr Hoyles. 2. Error 2: the fact that Mr Hoyles may not have progressed or lodged a Legal Aid application does not mean that he did not act in Ms Choi's best interest in withdrawing the applications in the Tribunal. 3. Error 3: Ms Choi has not explained the manner in which the Tribunal failed to take into account Ms Choi's interests or the grounds on which her GAL's legal opinion was "baseless", so the ground of appeal which rests on this alleged error has not been made out. 4. Error 4: Ms Choi has not explained the manner in which the Tribunal failed to take into account Ms Choi's interests, so the ground of appeal which rests on this alleged error has not been made out. 5. Error 5: this alleged error of fact, to the effect that Mr Hoyles had been corruptly influenced by government agencies, was not the sole basis on which Mr Hoyles concluded that the applications should be withdrawn. Ms Choi has not provided material to substantiate her claim that has led to her having this suspicion. 6. Error 6: this is not a ground upon which the Appellant can appeal the dismissal of applications 2018/226998 and 2018/299612.

Submission of the Appellant

The Appellant has filed submissions (including submissions in reply) in which she reasserts the grounds summarised above in the Notice of Appeal.

Submissions of the Respondent

The Respondent submits that in order for Ms Choi to appeal from the dismissal of her applications at first instance she must first be granted: 1. an extension of time in which to appeal the appointment of a GAL, have leave to appeal the appointment and an order setting aside the appointment; 2. alternatively, to the relief set out in (1) above, dispensation from the requirement that she bring proceedings only through her GAL; and 3. an extension of time in which to appeal the dismissal of the applications.
The Respondent submits that Ms Choi should not be granted extensions of time, leave or dispensation. The Respondent further submits that Ms Choi has not raised any ground of appeal that constitutes an error of law and should not be granted leave to argue the grounds of appeal that she has put forward. While the Appeal Panel may dispense with the requirement that Ms Choi only proceed through a GAL, Ms Choi has not raised any grounds or provided any material, such as medical reports, that would support the Panel dispensing with that requirement.
If Ms Choi is appealing the decision made on 19 October 2018 appointing the GAL, she is appealing from an interlocutory decision and must do so within 28 days from the date on which she received reasons for the decision: see r 25(4)(c) of the Rules. Ms Choi therefore requires an order from the Appeal Panel to extend time: see s 41 of the Civil and Administrative Tribunal Act 2013. The criteria for extending time were set out in an Appeal Panel decision reported as Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]-[22].
As the decision under appeal is an interlocutory decision, Ms Choi requires leave and the relevant principles for the grant of leave were set out in Collins v Urban [2014] NSWCATAP 17 at [84]. Ms Choi has not provided any evidence by way of new medical evidence or otherwise that the appointment of the GAL was a decision warranting a grant of leave to appeal.
The Respondent also submits that Ms Choi requires an extension of time under the Civil and Administrative Tribunal Act 2013 in order to appeal the decision to dismiss the applications. The decision was made on 8 January 2019 and the Respondent submits that Ms Choi received the reasons on 9 January 2019. That means that she had until 6 February 2019 to appeal. The relevant period is 28 days: see r 25(4)(c) of the Rules.
Turning to the grounds of appeal, the Respondent submits that the alleged errors do not amount to errors of law and therefore Ms Choi requires leave to appeal: see s 80(2)(b) of the Civil and Administrative Tribunal 2013. The Respondent submits that even if leave is granted there is no substance to Ms Choi's grounds of appeal and each should be dismissed.
In respect of each of the alleged errors the Respondent submits: 1. Error 1: although the Tribunal has the power to appoint a GAL, the appointment of a particular individual is undertaken by the administration. The fact that the Tribunal itself did not appoint Mr Hoyles is not an error of law, or an error of any kind. 2. Error 2: the fact that Mr Hoyles did not lodge an application for Legal Aid, for whatever reason, does not establish that he failed to act in Ms Choi's best interests. The Decision records that Mr Hoyles withdrew the applications because of lack of merit, the ongoing effect of the proceedings on the mental health of Ms Choi and the inability to resolve the proceedings in a way that was satisfactory to Ms Choi. 3. Error 3: the Respondent submits that this ground does not disclose any error of law, nor a leave ground. Ms Choi has not indicated the grounds on which she claims that the GAL's legal opinion was baseless or that the applications had reasonable prospects of success. 4. Error 4: the Respondent submits that this ground of appeal does not disclose an error of law. The Respondent further submits that it is relevant that the Tribunal at first instance did not rely solely on the opinion Mr Hoyles. The Tribunal also noted that Mr Hoyles' conclusions were supported by the correspondence that the Tribunal itself had received from Ms Choi. The Respondent submits that Ms Choi has not provided any evidence to suggest that continuing the proceedings would not negatively impact upon her mental health. 5. Error 5: the Respondent submits that Ms Choi has not provided any evidence in support of her claims of corrupt conduct not withstanding that this is a very serious claim. 6. Error 6: the Respondent submits that the Tribunal's dismissal of Ms Choi's applications lodged on 6 and 14 December 2018, where she sought to reverse the decision to appoint at GAL, is not a ground on which the Appellant may appeal the dismissal of the applications and does not give rise to an appealable error of law.

The Second Appeal: the GAL Decision (AP 19/30719)

As stated above, this appeal (which was lodged on 2 July 2019) is an appeal from a decision dated 19 October 2018 which was said by Ms Choi to have been received by her on 26 June 2019. Ms Choi appeals the decision to appoint a guardian ad litem in respect of proceedings 2018/226998 and 2018/299612.
Ms Choi requests that time be extended for the filing of the appeal. She submits that she forgot about the decision to appoint a GAL. We note this explanation is inconsistent with Ms Choi's statement in the Notice of Appeal that she received the decision of 19 October 2018 on 26 June 2019.
The grounds of appeal may be summarised as follows: 1. Ground 1: the conduct of Ms Choi which caused the Tribunal to determine to appoint a GAL, was limited to her conduct in the proceedings against UTS. The Tribunal assumed that that conduct (which involved the submission of voluminous submissions) would continue in relation to other proceedings. 2. Ground 2: the Tribunal decided to appoint a GAL for proceedings against UTS based upon Ms Choi's conduct in previous proceedings but the previous conduct was in fact in relation to UTS's costs applications. 3. Ground 3: the Tribunal placed much more weight on the Appellant's assertions and ignored her psychiatrist's medical opinion. Ms Choi says that she exaggerated a disability in order to pursue Legal Aid. 4. Ground 4: the Tribunal was in error in giving no weight to the opinion of Ms Choi's psychiatrist, Dr Yoon Kuk. 5. Ground 5: the decision under appeal was determined on the papers notwithstanding Ms Choi's objection. Ms Choi then adds that the decision in fact occurred after a short telephone hearing. 6. Ground 6: Ms Choi says that she did not have the benefit of an interpreter and her poor English has been the cause of the GAL decision. 7. Ground 7: the appointment of a GAL is oppression of human rights.

Reply to Appeal

The Respondent has filed a Reply to Appeal which may be summarised as follows: 1. Ms Choi is appealing the decision to appoint a GAL which is an interlocutory decision and therefore leave is required: s 80(2)(a) of the NCAT Act. The Respondent opposes leave being granted. Ms Choi has not identified any error of law or any new medical or other material which would provide grounds on which to appeal. In relation to the question of leave, there is no general issue of principle, question of public importance or matter of general administration or policy of general application that would warrant the granting of leave. There is no injustice that is reasonably clear and therefore the principles identified in Collins v Urban [2014] NSWCATAP 17 at [84] have not been satisfied. 2. Ms Choi is out of time for the filing of the appeal and requires an extension of time for leave to appeal.
In an attachment to the Reply the Respondent submitted: 1. Because a GAL was appointed to Ms Choi's application and the appointment has not been revoked, Ms Choi is not capable of invoking the jurisdiction of the Appeal Panel. 2. The purpose of appointing a GAL is to protect the party concerned and having regard to that purpose the appointment should survive the proceedings at first instance and continue for the purposes of the appeals lodged by this Ms Choi.

Post-hearing Submissions

Ms Choi filed and served submissions dated 25 November 2019 after the hearing of the appeal. The Respondent does not object to the Appeal Panel considering those submissions, and we have done so.
On 6 December 2019, the Tribunal received an email from Ms Choi requesting leave to file and serve "significant evidence". In our view, the submissions and attachments do not add to the submissions previously received from Ms Choi. The thrust of those submissions was to argue that Mr Hoyles was appointed by an irregularity and unethical process and that he did not act in Ms Choi's best interests.

Decision (AP 19/07745)

Appeals from decisions made in the Tribunal are regulated by s 80 of the Civil and Administrative Tribunal Act 2013. 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 agree with the Respondent's submissions that no error of law has been identified and nor are there circumstances justifying the granting of leave to appeal.
None of the grounds of appeal and none of the alleged errors have substance, either as a question of law or a ground of appeal in respect of which leave to appeal may be required. Although we will extend the time for the filing of the appeal, it follows from our agreement with the Respondent's submissions that the appeal must be dismissed.

Appeal from the GAL Decision (AP 19/30719)

This appeal was filed in July 2019, approximately eight months after the decision which is its subject. That period of delay is plainly excessive and the reason for the delay is unmeritorious. Also significant is the fact that proceedings were conducted before the Tribunal, and decisions delivered, upon the basis that the appointment of the GAL was lawful and effective. In our view, Ms Choi has not adduced any evidence or made any submission which could persuade us that the appointment of the GAL was unlawful or of no effect. Having regard to each of these considerations, we are of the opinion that we should not extend time for the lodgement of the appeal. Accordingly, the appeal must be dismissed.
The orders of the Tribunal are:

AP 19/07745

The time for the appeal to be filed is extended to 14 February 2019.
Appeal dismissed.

Both Appeals 4. 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. 5. If the Respondent complies with order (4) above the Appellant may file and serve submissions in opposition within 21 days thereafter. 6. Submissions on costs should include a submission as to whether the Appeal Panel may dispense with the 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)

Choi v NSW Ombudsman

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