Choi v NSW Ombudsman

Supreme Court of NSW|2022-12-01|Before: Chen J

Solicitors: Crown Solicitors Office (Defendant) File Number(s): 2022/127132

Introduction

The NSW Ombudsman ('the Ombudsman') seeks summary dismissal of the Amended Summons filed by Ms Choi ('the plaintiff') on 18 July 2022. By that summons, the plaintiff seeks to appeal from two sets of orders made by the NSW Civil and Administrative Tribunal ('the Tribunal'): first, orders made on 26 July 2021 (orders that included refusing the plaintiff's application for the appointment of a litigation guardian); second, orders made on 17 March 2022 (orders that refused the plaintiff leave to bring proceedings for discrimination and victimisation against the Ombudsman).
The essential point made by the Ombudsman is that no appeal lies from these orders to this Court: in relation to the first orders, any challenge to them must be by an internal appeal to the Appeal Panel of the Tribunal; and, in relation to the second orders, any challenge to them must be by judicial review, and not by appeal.
In my view, those submissions should be accepted, and the orders sought by the Ombudsman made.

The dispute: a summary

In the period from around April 2015 to December 2016, the plaintiff was enrolled in a Bachelor of Nursing degree with the University of Technology Sydney (or 'UTS'). The University discontinued her enrolment after determining that she was unsuited for further clinical placements. In the absence of those clinical placements, the plaintiff was unable to graduate. She has returned to live in Korea, where she currently resides.
The plaintiff lodged "an anonymous complaint with the NSW Ombudsman in September 2015". That complaint is not in evidence.
It appears - it is by no means clear - that the plaintiff was dissatisfied with the manner in which this complaint was handled by the Ombudsman, and her dissatisfaction led to the plaintiff, on 27 February 2018, lodging a complaint against the Ombudsman with the Anti-Discrimination Board ('the Board') under the Anti-Discrimination Act 1977 (NSW) ('the AD Act').
There were two parts to the complaint made against the Ombudsman by the plaintiff: (a) that the Ombudsman discriminated against her in the provision of a service on the ground of disability, contrary to s 49M of the AD Act; and (b) that the Ombudsman victimised her because she had complained to the Board (regarding the failure of the Ombudsman to further investigate her claims of disability discrimination whilst she was a nursing student at UTS), by refusing to investigate further complaints she made contrary to s 50 of the AD Act.

The plaintiff's proceedings in the Tribunal

On 24 July 2018, the plaintiff applied to the Tribunal under the Government Information (Public Access) Act 2009 (NSW) for a review of a decision made by the Ombudsman in connection with an application for information that she had made under that Act. That application is not in evidence, but it is said to "relate to the NSW Ombudsman's role in [the plaintiff's] dispute with the University of Technology Sydney". The plaintiff's dispute with the University of Technology Sydney has involved (on the evidence tendered on this application) at least four proceedings brought by the plaintiff in the Tribunal.
On 17 August 2018, the President of the Board, having investigated the plaintiff's complaint, "declined" it under to s 92(1) of the AD Act - on the basis that the complaint was "lacking in substance and misconceived".
The plaintiff, being dissatisfied with this decision, requested that the complaint be referred by the President of the Board to the Tribunal. The right of the plaintiff to make that request is contained in s 93A(1) of the AD Act. That request having been made, the President is required, by notice in writing, to refer the complaint to the Tribunal: s 93A(2) of the AD Act.
On 20 September 2018, the matter was referred by the Board to the Tribunal, and that referral was received by the Tribunal on 25 September 2018. The subject matter of this referral has also been described as "relating to the NSW Ombudsman's role in [the plaintiff's] dispute with the University of Technology Sydney". A complaint "that is referred to the Tribunal on the requirement of a complainant under section 93A (1) may not be the subject of proceedings before the Tribunal without the leave of the Tribunal": s 96(1) of the AD Act.
On 19 October 2018, the Tribunal appointed a litigation guardian for the plaintiff in both proceedings before the Tribunal: Choi v NSW Ombudsman [2018] NSWCATAD 248.
Following the appointment of that litigation guardian, by orders made on 18 December 2018, and reasons delivered on 8 January 2019, the Tribunal dismissed both proceedings: Choi v NSW Ombudsman [2019] NSWCATAD 10.
The plaintiff appealed the decision to dismiss the applications to an Appeal Panel of the Tribunal, but that appeal was dismissed by orders made on 9 March 2020: Choi v NSW Ombudsman [2019] NSWCATAP 36.
The plaintiff appealed to this Court from the decision of the Appeal Panel, and also sought judicial review. The summons filed by the plaintiff was removed to the Court of Appeal. It is unnecessary to canvass the detail of the reasons of the Court of Appeal, other than to note that the Court held that the litigation guardian was invalidly appointed, and orders were made by the Court of Appeal giving effect to this conclusion: Choi v NSW Ombudsman [2021] NSWCA 68 at [56] and [65]. A consequence of the orders so made was that the orders made by the Tribunal dismissing the two proceedings were also set aside. The Court of Appeal remitted the proceedings to the Tribunal for consideration of the appointment of a litigation guardian in each matter.
On 26 July 2021 the Tribunal made a number of orders including the following: "The request for a guardian ad litem to act for [the plaintiff] is refused".
On 17 March 2022 the Tribunal determined, under s 96(1) of the AD Act (relevantly set out in [12], above) not to grant the plaintiff leave to permit her complaint to be the subject of proceedings, and made orders refusing the plaintiff leave to proceed with the discrimination and victimisation complaints: Choi v NSW Ombudsman [2022] NSWCATAD 92.

The Amended Summons

As I have earlier noted, the plaintiff, by her Amended Summons, seeks to appeal from the orders made on 26 July 2021 and 17 March 2022: see [1], above.
The Amended Summons is not easily summarised, but it is clear, in my view, that an appeal (and not judicial review) is pursued. That is evident from the number of matters set out in that summons, including: (a) the Amended Summons is headed: "Amended SUMMONS SEEKING LEAVE TO APPEAL"; (b) in the section: "DETAILS OF APPLICATION FOR LEAVE TO APPEAL", it is said that the "plaintiff appeals from the whole of the decision below in Choi v NSW Ombudsman (No 5) [2022] NSWCATAD 92" and also that the "plaintiff appeals from the part of the decision below dated 27 July 2021…"; (c) in the section: "ORDERS SOUGHT", the plaintiff seeks orders granting her leave to appeal, as well as an order "Appeal allowed"; and (d), the plaintiff, in the section: "appeal grounds" asserts a "right of appeal directly to the Supreme Court of New South Wales…".

Appeals from the Tribunal: the statutory provisions

Before moving to address the detail of the Ombudsman's submissions, it is necessary to identify the statutory framework relating to appeals within, and from, the Tribunal.
Part 6 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act') deals with appeals. It identifies three kinds: external appeals (s 79 of the NCAT Act), internal appeals (s 80 of the NCAT Act), and appeals from the Tribunal to courts (s 83 of the NCAT Act).
To recap, slightly: the orders which the plaintiff seek to challenge were made by the Tribunal. They thus involve a consideration of the provisions conferring, or constraining, the right to appeal in those circumstances.

Appeals from the Tribunal to the Supreme Court

Section 83(1) of the NCAT Act provides for appeals against "appealable decisions" to this Court. It provides: 83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.
The remaining sub-sections of s 83 of the NCAT Act are not material. From the terms of s83(1), the right of a party to appeal to the Supreme Court turns on whether they are a party to "an external or internal appeal".
The term "appealable decision", which appears in the heading to s 83, is not defined by that section, but by s 82(1) of the NCAT Act - as follows: 1. any decision made by an Appeal Panel in an internal appeal, 2. any decision made by the Tribunal in an external appeal, 3. any decision made by the Tribunal in proceedings in which a civil penalty has been imposed by the Tribunal in exercise of its enforcement or general jurisdiction.
The phrase "appealable external decision" is defined by s 31 of the NCAT Act. And the phrases "internal appeal, internal appeal jurisdiction and internally appealable decision" are defined by s 32 of the NCAT Act. These provisions are set out - or referred to - in the analysis of the decisions and orders that the plaintiff seeks to challenge that follows.

The 26 July 2021 decision and orders

In relation to the decision and orders dated 26 July 2021, the decision was not made by an Appeal Panel in an internal appeal (s 82(1)(a) of the NCAT Act). Nor was this decision "in an external appeal" (s 82(1)(b) of the NCAT Act) - an appeal of that kind being "an appeal to the Tribunal against an appealable external decision" (s 31(4) of the NCAT Act). Nor, finally, was the decision in connection with "a civil penalty … imposed by the Tribunal in exercise of its enforcement or general jurisdiction" (s 82(1)(c) of the NCAT Act).
Rather, as the Ombudsman submitted, any appeal from the decision (and orders) made 26 July 2021 must be by way of appeal to the Appeal Panel of the Tribunal. (That approach, it should be noted, is one that was adopted by the plaintiff following the orders made appointing a litigation guardian: see [14]-[15], above). That conclusion results from ss 32 and 80 of the NCAT Act, as I will briefly explain.
Section 32 of the NCAT Act sets out the procedure for internal appeals. Relevantly, it provides: (1) The Tribunal has "internal appeal jurisdiction" over-- (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) ... (2) … (a) … (b) … (3) However, the internal appeal jurisdiction of the Tribunal does not extend to- (a) any decision of an Appeal Panel, or (b) any decision of the Tribunal in an external appeal, or (c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or (d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction. ... (4) An "internally appealable decision" is a decision of the Tribunal…over which the Tribunal has internal appeal jurisdiction. (5) An "internal appeal" is an appeal to the Tribunal against an internally appealable decision. (6) …
An "internally appealable decision" is a decision of the Tribunal "over which the Tribunal has internal appeal jurisdiction": s 32(4) of the NCAT Act. The internal appeal jurisdiction includes "any decision made by the Tribunal in proceedings for a general decision or administrative review decision": s 32(1) of the NCAT Act (underlining added). That jurisdiction is not, in the present case, excluded by being a decision of the kind referred to in ss 32(3)(a)-(d) of the NCAT Act.
The decision made by the Tribunal was of a kind within s 32(1) of the NCAT Act. Accordingly, the Tribunal has internal appeal jurisdiction in connection with the decision (and orders) dated 26 July 2021. An "appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made": s 80(1) of the NCAT Act.
It follows, therefore, that any attempt to appeal to this Court is incompetent - a conclusion reinforced by the terms of ss 82 and 83 of the NCAT Act: see [24]-[26], above. In the language of s 83 (1): the plaintiff is not a party to an external appeal, nor an internal one.

The 17 March 2022 decision and orders

In relation to the decision and orders dated 17 March 2022, the decision was not made by an Appeal Panel in an internal appeal (s 82(1)(a) of the NCAT Act). Nor was this decision "in an external appeal" (s 82(1)(b) of the NCAT Act) - an appeal of that kind being "an appeal to the Tribunal against an appealable external decision" (s 31(4) of the NCAT Act): all that the Tribunal was determining was whether to grant leave under s 96 of the AD Act to commence proceedings in the Tribunal. Nor, finally, was the decision in connection with "a civil penalty … imposed by the Tribunal in exercise of its enforcement or general jurisdiction" (s 82(1)(c) of the NCAT Act).
No right to appeal under s 83(1) of the NCAT Act arises in connection with that decision: the plaintiff is not a party to an external appeal, nor an internal one. The plaintiff's appeal to this Court seeking to challenge the decision dated 17 March 2022 is therefore incompetent.
Furthermore, the decision dated 17 March 2022 is not, in any event, an "internally appealable decision" within s 32 of the NCAT Act. That is because Schedule 3, pt 6, cl 15(a) of the NCAT Act stipulates that "a decision of the Tribunal for the purposes of section 96 of the Anti-Discrimination Act 1977 with respect to the granting of leave for the purposes of that section" is not an "internally appealable decision for the purposes of an internal appeal". That is the plain meaning of this provision, a conclusion that has been confirmed (when dealing with essentially identical wording in the repealed s 96(4) of the AD Act to the wording in cl 15(a) referred to), [1] in Deva v University of Western Sydney [2008] NSWCA 137 at [7]-[8] and in Jones v Ekermawi [2009] NSWCA 388 at [5]-[6].
In these circumstances, therefore, the only entitlement that that plaintiff has to seek to challenge the decision dated 17 March 2022 is by way of judicial review.
There is some suggestion, in the evidence from the solicitor for the Ombudsman, that the plaintiff may have attempted to file a further summons seeking judicial review. I accept, however, that the solicitor for the Ombudsman has not, been served with such a document, and nor has the Ombudsman (assuming one has been filed).
Even if it were the case that the plaintiff had sought to file a further summons - seeking judicial review - that would not alter, in my view, what should occur in connection with the Amended Summons: as I have explained, the plaintiff's appeal is incompetent, and should be dismissed. As the Ombudsman accepted, this order would not operate to exclude the plaintiff from pursuing, if so advised, proceedings for judicial review.

Orders

For the above reasons, I make the following orders: 1. Order, pursuant to rules 13.4(1)(a) and (b) of the Uniform Civil Procedure Rules, that the Amended Summons filed 18 July 2022 be dismissed. 2. Order the plaintiff to pay the Ombudsman's costs of and incidental to its notice of motion filed 29 July 2022, and of the proceedings.

Endnote

Section 96(4) of the AD Act provided: "A decision of the Tribunal under this section with respect to the granting of leave cannot be the subject of an appeal to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997".

Amendments 09 December 2022 - Format 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 December 2022

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