Choi v NSW Ombudsman

Supreme Court of NSW|2024-03-07|Before: Cavanagh J, Chen J

JUDGMENT

Pursuant to a summons filed on 20 December 2022, the plaintiff seeks judicial review of two decisions of the New South Wales Civil and Administrative Tribunal ("the Tribunal") being: 1. the decision of Senior Member Montgomery dated 26 July 2021 refusing to appoint a guardian ad litem and other procedural orders ("the 2021 orders"); and 2. the decision of Senior Member Tibbey dated 17 March 2022 refusing leave to the plaintiff to proceed with a disability discrimination complaint and a victimisation complaint made to the Anti-Discrimination Board ("the refusal orders").
There are two defendants being: 1. the first defendant - the NSW Ombudsman; and 2. the second defendant - the Tribunal.
The Tribunal has filed a submitting appearance.
The plaintiff lives in South Korea and has done so for several years. She speaks English well. She was afforded the opportunity to speak at length in support of her case. During the hearing on 7 March 2024, she appeared by audio-visual link.
The plaintiff did not attend before the Tribunal on 26 July 2021 when the first decision of which she complains was made. The refusal decision was made on the papers, the Tribunal having dispensed with the need for an oral hearing.
The plaintiff also did not appear in person on the hearing of the earlier proceedings before Chen J. [1] She has had the benefit of a waiver of filing fees. She is also in breach of her obligation to pay the necessary fees to this Court.
The plaintiff prepared and relied on a five-volume court book. The first defendant prepared and relied on an eight-volume court book, although in the end it accepted that the plaintiff had included all the relevant material in its five-volume court book and the defendant only relied on the first volume. Again, it is difficult to understand how the issues arising in these proceedings could ever have been subject of eight volumes of relevant material.

Background

The plaintiff has been pursuing her grievance since the termination of her enrolment in a Bachelor of Nursing degree at the University of Technology ("UTS") on 20 December 2016. She continues to maintain that the termination of her enrolment was discriminatory in the sense that she was suffering from what she describes as a "mental disorder". She says that while she was a nursing student at UTS she was assessed as a mentally ill person under the Mental Health Act 2007 (NSW). She says that in April 2015 she registered as a disability student at UTS.
She has a number of grievances for which she seeks redress and now compensation. Indeed, during the hearing she sought to amend her claim for compensation from the original figure of $100,000 to $1 million. The first defendant did not oppose the amendment and I granted leave to the plaintiff to amend the summons to change the amount claimed.
The plaintiff enrolled in the Bachelor of Nursing degree at the UTS in 2014. She says that during her course she was referred to UTS student services due to her repeated "emailing" disability (in April 2015). She says that she had been registered as a disabled student with alcohol abuse and depression on 20 April 2015.
On 21 September 2015, the Nursing and Midwifery Council of New South Wales restricted her nursing registration. She then sent an anonymous complaint to the first defendant about UTS.
She says that on 24 September 2015, the first defendant sent her anonymous complaint to Professor Daly at UTS, thereby wrongly disclosing her name and email address. After receiving a response from UTS in respect of the complaint, the first defendant determined that there had been an adequate response to the plaintiff's complaint and that it ought not inquire any further.
On 8 October 2015, Mr Michael Conaty, the investigations officer for the first defendant, wrote to the plaintiff in the following terms: "I have made enquiries with the university, and I am satisfied they were responding in an appropriate way. Accordingly, I will now close our file in this matter."
The plaintiff was not satisfied with this response. She sought internal review. That was conducted on 7 December 2015.
The plaintiff then made further submissions in October 2016. However, the first defendant again determined not to undertake any further investigation into her complaint. She sought further review and received a response, dated 13 February 2017 setting out the basis of the first defendant's investigation and the absence of any wrongful conduct on the part of UTS. The first defendant again informed the plaintiff that it would not be taking any further action on her complaint.
The plaintiff did not accept this. She again wrote to the first defendant pointing out her long history of depression and anxiety and that she had been diagnosed with obsessive compulsive disorder and borderline personality disorder. She urged the first defendant to take further action, threatening to lodge a complaint with the Anti-Discrimination Board of NSW ('ADNSW').
As the first defendant did not take any further action, she lodged a complaint with ADNSW. She alleged that the first defendant had refused to investigate her complaints against UTS because of her disabilities and that she had been victimised.
On 2 May 2018, ADNSW referred her complaint to the Tribunal.
On 9 October 2018, Deputy President Hennessey appointed a guardian ad litem in each of the two proceedings she was pursuing at the Tribunal. The plaintiff sought internal review and then judicial review in this Court.
The proceedings filed by the plaintiff in this Court were referred directly to the Court of Appeal by Wright J on 17 July 2020. [2]
On 23 April 2021, the Court of Appeal dismissed the plaintiff's summons seeking judicial review but granted leave to appeal and allowed her appeal in part in respect of the appointment of a guardian ad litem. [3] The matter was remitted to the Tribunal for further consideration.
On 26 July 2021, the matter came before Senior Member Montgomery, who was in receipt of a statement and submissions from the plaintiff dated 23 June 2021. There was no appearance by the plaintiff.
Senior Member Montgomery made a number of orders (the 2021 orders) including that: 1. the publication of evidence given before the tribunal is prohibited. 2. Mr David Wong may appear on behalf of the respondent in the proceedings. 3. the request for guardian ad litem to act for the plaintiff is refused. 4. the proceedings listed for case conference on 25 August 2021.
Following the determination of the Court of Appeal and the 2021 Orders, the matter was referred to Principal Member Britton who made orders for the exchange of evidence and submissions.
The matter was then referred to Senior Member Tibbey of the Administrative and Equal Opportunity division and dealt with on the papers.
The Tribunal published its decision on 17 March 2022 (the refusal orders). Although the Senior Member was satisfied that the plaintiff had disabilities at the time of her complaints to the first defendant, she observed that simply having a disability is not sufficient to prove a complaint of disability discrimination and/or victimisation.
The Senior Member found that there was no evidence that the way in which the first defendant's inquiries were conducted was discriminatory. Nor was there any basis to draw an inference that the first defendant acted in a discriminatory matter. There was no evidence to support the submission that she was discriminated against because she provided voluminous submissions.
The Senior Member accepted that the first defendant made reasonable and appropriate inquiries in accordance with the requirements of the Ombudsman Act 1974 (NSW). The Senior Member was satisfied that it did so in accordance with its normal policies and in a non-discriminatory manner. The Senior Member noted that ADNSW concluded that the complaint was lacking in substance, and that was a matter to which the Tribunal was entitled to have regard to in any application for leave pursuant to s 96 of the Anti-Discrimination Act 1977 (NSW).
The Senior Member was not satisfied that the applicant had any reasonable prospects of success and declined to grant leave to proceed.
A similar finding was made in respect of the victimisation allegation.
The plaintiff then appealed to this court. Those proceedings were dismissed on the application of the first defendant on the basis that no appeal lay to this court from the decision of the Senior Member (Choi v NSW Ombudsman [2022] NSWSC 1681). As Chen J said, that decision did not prevent the plaintiff from pursuing proceedings in this court for judicial review.
The plaintiff appears to have taken up the reference to judicial review and commenced the current proceedings seeking judicial review in respect of the same two decisions.

The relief sought

In a lengthy document, the plaintiff seeks a total of 23 orders, including: 1. Quash the order made by Senior Member Montgomery on 26 July 2021. 2. Extend the time to review. 3. Quash the orders made by Senior Member Tibbey dated 17 March 2022. 4. Order for leave to proceed with a disability discrimination complaint under s 96(1) Anti-Discrimination Act. 5. Order for leave to proceed with the victimisation complaint under s 96(1) Anti-Discrimination Act. 6. Order that the first defendant pay to the plaintiff the sum of $1,000,000 for the disability discrimination complaint. 7. Under s 108(2)(a) of the Anti-Discrimination Act, the first defendant pay to the plaintiff the sum of $1,000,000 for the victimisation complaint. 8. Exemplary costs. 9. Costs on an indemnity basis. 10. An order preventing the first defendant from continually repeating its conduct. 11. An order to publish an apology. 12. An order to investigate. 13. An order declaring all earlier decisions of the first defendant void. 14. Other procedural orders.

The Plaintiff's submissions

The plaintiff pleads that the source of the discrimination against her is "about how the [first defendant] acted in relation to her complaints". She says that the first defendant only handled two of her complaints and has not responded to her ten fresh complaints.
She says that the first defendant's act in rejecting her ten complaints is an act of discrimination. Specifically, she says that the Tribunal failed to take into account s 49A of the Anti-Discrimination Act, her disabilities and a purported email from Ms Unwin which makes reference to her being vexatious.
I should say that the first defendant initially sought to rely on an affidavit of Ms Brogden but that was not pressed. I gather from the plaintiff's reply that the plaintiff sought to rely on an email which purported to be from Ms Unwin an employee of the first defendant, dated 30 March 2017.
The first defendant challenges the authenticity of this email. However, as the first defendant did not ultimately rely on the affidavit of Ms Brogden, all I know about the email and the affidavit of Ms Brogden is that the affidavit apparently contained an assertion that the email was fake. As the evidence was not admitted, I disregard the plaintiff's submissions about Ms Brogden's affidavit.
The plaintiff submits that the first defendant breached her privacy while handling her complaint about the UTS and put the public at risk by discriminating against her on the basis of her disability. The plaintiff refers to the conduct of UTS in terminating her nursing enrolment suggesting that the UTS terminated her enrolment because of her disability. The first defendant also breached her privacy by discriminating against her because of her disability.
The plaintiff submits that the first defendant did not provide the service to her that it was required to do, suggesting that the first defendant did not even acknowledge her complaint and that Deputy Ombudsman Wheeler reviewed her complaint without her consent. She submits that Deputy Ombudsman Wheeler should not have reviewed Mr Conaty's handling of the complaint without her consent and, after all that, the first defendant simply closed the file without any further consideration or review. She thus submits she was victimised by the first defendant.
The plaintiff then refers to the way in which her complaint had been handled and suggests that there was a comparator whose complaints about the UTS had been handled differently. The plaintiff points to this as evidence that she was treated less favourably because of her disability. The plaintiff also submits that the first defendant's breach of her privacy was discriminatory. She says that she has obsessive-compulsive disorder and a borderline personality disorder and that her continuous sending of complaints is part of her disorder. As I understand it, she submits that the first defendant's ultimate refusal to engage with her was discriminatory conduct.
Finally, the plaintiff submits that it is too late for the first defendant to rely on s 35A of the Ombudsman Act 1974 (NSW) as that had not been relied upon in the Tribunal.
She submits that the fact that the first defendant was trying to rely on s 35A was evidence of its bad faith (being a direct reference to the terms of s 35A). The plaintiff also submits that the first defendant has admitted that it acted with bad faith.
However, when I invited the plaintiff to direct me to the documents containing such an admission, she was unable to do so. Instead, she referred to the 2017 correspondence which seemed to have nothing to do with any admission and the decisions of Wright J and the Court of Appeal.
The plaintiff made regular references to the decision of Wright J, asserting that it supported her case. As I understand it, his Honour merely referred part of the case she was previously pursuing to the Court of Appeal. I am uncertain how reliance on Wright J's decision impacts on the outcome of this matter. Similarly, I am uncertain as to how the decision of the Court of Appeal, to which I have already referred, impacts upon the outcome of this matter.
The plaintiff made scurrilous remarks about the conduct of the solicitors and counsel, which I rejected. Thereafter, during oral exchanges, the plaintiff sought time to file further submissions in writing and I rejected that request. The plaintiff did not identify why she needed more time to file further submissions in writing and why she had not already attended to the filing of these submissions. I took her application to be responsive to my rejection of her improper submissions about the conduct of the legal representatives.

The first defendant's submissions

The first defendant submits that the plaintiff requires an extension of time to seek judicial review as the proceedings were filed outside the three-month time limit. The first defendant consented to the determination of the application for extension of time and the plaintiff's summons being heard at the same time. The first defendant did not oppose the granting of an extension of time if the Court considered there was practical utility in doing so.
The first defendant also submits that the plaintiff's claims are precluded by s 35A of the Ombudsman Act. Section 35A is in the following terms: 35A Immunity of Ombudsman and others (1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith. (2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court. (3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith. (4) An Australian legal practitioner assisting the Ombudsman or representing a person at an inquiry held by the Ombudsman has the same protection and immunity as a barrister has in appearing for a party in proceedings in the Supreme Court.
The first defendant referred to the decision of Kaldas v Barbour (2017) 107 NSWLR 341 per Bathurst CJ at [127]-[128], [158]-[168], [177]; McFarlan JA agreeing at [380]. In deciding the point, the Court referred to the prohibition from suit set out in s 35A extending to claimants seeking judicial review of a decision of the Ombudsman.
The first defendant submits that the summons does not set out any grounds of challenge to the 2021 orders and thus there are no grounds identified for judicial review.
In respect of the refusal decision, the first defendant submits that a complaint that is referred to the Tribunal under s 93A(1) of the Anti-Discrimination Act may not be the subject of proceedings before the Tribunal without leave being granted (see s 96(1) of the Act).
The issue before the Tribunal was thus whether it should grant leave. As it did not grant leave, the Tribunal did not determine the substance of the discrimination and victimisation complaints. As such, the first defendant submits this Court is not able to conduct a hearing de novo. If this Court were to find error in the Tribunal's decision, the appropriate course would be to remit the matter to the Tribunal.

Determination

It is not necessary that I merely recite every submission made by the plaintiff in this judgment or the whole of the 21 pages of the summons filed by the plaintiff. It is only necessary to say that it is difficult to ascertain the basis of the plaintiff's claim for judicial review, other than generalised references to grounds, such as error on the face of the record and taking into account irrelevant considerations.
Much of that which the plaintiff asserts appears to be based on a misunderstanding as to the role of the first defendant and a misunderstanding of claims for judicial review. This court is not determining whether the plaintiff suffered discrimination or engaged in a fact-finding exercise as to the conduct of UTS or the first defendant. This court is not undertaking a hearing de novo.
It is clear that the plaintiff continues to maintain her grievance against all of those who have played any part or role in considering her complaint including: 1. the UTS, who she asserts was guilty of discriminatory conduct and victimisation; 2. the first defendant, against which she makes the same allegations, albeit it had played a completely different role; 3. ADNSW, who she again asserts failed to properly consider her disability; and 4. the Tribunal and, ultimately, all the members of that Tribunal who have made decisions which she seeks to impugn.
There is a constant theme in the applicant's complaints that because she suffers from mental disorders (by her own admission), she has been discriminated against when the recipients of her complaints have not responded to every complaint she has made. That is, she says that her constant sending of emails and making complaints reflects her mental disorders and, as such, a failure to respond to this conduct is in itself discriminatory and victimises her.
I do not accept that submission. Further, it has nothing to do with the action she is now pursuing.
Similarly, I do not accept the plaintiff's submission that in seeking to rely on s 35A of the Ombudsman Act, the first defendant is acting with bad faith. There is no basis for that submission. The plaintiff was unable to point to any evidence in support of her submission. In any event, it is not necessary to consider s35A further. The outcome of this case does not depend on the first defendant's entitlement to rely on s 35A.
It may be that the plaintiff's approach to her case is affected by her mental disorders but that is something I am unable to determine. However, as the Tribunal said, merely asserting a mental disability does not lead to the conclusion of discrimination on the grounds of that mental disability.
Although it is difficult to discern the nature of the plaintiff's case (in terms of any arguable case), I will endeavour to deal with some further points raised by the plaintiff.
At least in respect of the 2021 orders, the plaintiff does not identify any grounds for judicial review. The focus of the plaintiff's submissions was on the orders of Senior Member Tibbey (the refusal decision). It is only necessary to say that in respect of the claim for review of the 2021 orders, I reject that claim. It is unsupported and unsubstantiated.
In the summons and in her oral submissions, as well as her reply document, the plaintiff sought to support her claim in respect of the refusal decision with reference to terminology such as an error of law on the face of the record or taking into account an irrelevant consideration or failing to take account of relevant considerations. However, use of such terminology does not assist the plaintiff unless there is some foundation to the allegations. There is not. The plaintiff merely uses those terms and then makes submissions as if this is an ordinary appeal.
For example, the plaintiff asserts that there was an error of law on the face of the record in that the Tribunal rejected her disabilities. This is not an error of law and is incorrect. The Senior Member was satisfied that the plaintiff had disabilities at the time of her complaint.
The plaintiff complains that the Tribunal failed to have regard to s 49A of the Anti-Discrimination Act in terms of her disabilities but, again, there is no evidence to support that assertion.
The plaintiff complains that the Tribunal failed to take into account the claim that the first defendant rejected her complaint on the basis of her mental disorders. Again, there is no basis for this suggestion. Indeed, on the face of the record, the position is to the contrary. As the Senior Member said, merely having a disability is not sufficient to prove a complaint of disability discrimination or victimisation.
The Senior Member was satisfied that there was no evidence that the way in which the first defendant's inquiries were conducted was discriminatory. Further, the Senior Member rejected the plaintiff's assertion that her tendency to make voluminous submissions (said to be a symptom of her disability) caused the first defendant to finalise her complaint rather than carrying out investigations. No error of law has been established in respect of these findings.
Examination of the record does not support the plaintiff's contention that the Senior Member failed to have regard to the principles set out in Ekermawi v Administrative Decisions Tribunal (NSW) [2009] NSWSC 143 in terms of whether to grant leave.
Indeed, that case was specifically referred to in the context of determining whether leave should be granted. Far from not considering the case, the Senior Member has had regard to the principles set out therein in refusing leave. No error of law has been demonstrated.
The plaintiff submits that the Senior Member took into account an irrelevant consideration in that she accepted the validity of what the plaintiff describes as the "only one review policy".
It is difficult to understand the plaintiff's submissions in this regard. I take her to be suggesting that, because she made a number of complaints, each complaint should be the subject of a fresh review. In her submissions, she identifies the 10 complaints she made. Again, it is only necessary to say that I reject the submission that every time she made a complaint, the first defendant was required to investigate the original response of UTS to her initial complaint and again observe that the submissions made by the plaintiff about this topic do not demonstrate that the tribunal took account of an irrelevant consideration.
The plaintiff asserts that the Senior Member acted contrary to s 38(5)(c) of the Civil and Administrative Tribunal Act in that reasonably practicable measures were not taken to ensure that she had a reasonable opportunity to be heard or her submissions considered. She claims a denial of natural justice or procedural fairness. This is perhaps a surprising submission. The Tribunal accommodated the plaintiff and her pursuit of her complaint at all times. She has not identified any lack of consideration of requests for more time.
The Tribunal refused to grant leave to the plaintiff to proceed with her claims of discrimination and victimisation against the first defendant, finding that there was insufficient evidence to support the suggestion that she had any reasonable prospects of success in her claims.
The Tribunal refused to grant leave having regard to well-established principles in determining whether to grant leave. No error has been demonstrated in that approach, whatever legal terminology might be raised as a means of overcoming that finding.
I have dealt with all of the matters of any possible substance raised by the plaintiff. It is unnecessary to consider the defendant's reliance on s 35A of the Ombudsman Act.
There are other procedural points or suggested errors referred to in the summons which have no substance, could not be relevant or are not even capable of being understood. It is not the function of this Court to address every sentence in submissions or in the summons. Points about the form of the orders or the representation of the first defendant have no substance.
Some matters raised are trivial or non sensical. For example, the plaintiff made the following submission in support of her argument that the case name attributed to Senior Member Tibbey's decision "constituted an error of law on the face of the record": "The Case Name is incorrect: NSW Ombudsman (No 5). 'No 5' is wrongly located [sic] 'No 5' is the French perfume name, CHANEL No 5."
The plaintiff misunderstands the role of the first defendant and continues to make groundless assertions about its failures, whilst agitating her grievance about the decision of the UTS to terminate her enrolment, having regard to her unfitness for clinical placement. This is in circumstances in which she was suffering from and has continued to suffer from a number of "mental disorders" which must have impacted her fitness for such placements.
It is not my function to comment on or say anything further about such disorders but the point of her continued pursuit of the first defendant is difficult to understand. I am considering her latest proceedings on the basis of judicial review, but these proceedings have as their foundation the same factual matters as the earlier proceedings, being an assertion that in refusing to investigate the UTS decision further and in refusing to respond directly to the complaints she has made, she has been discriminated against and victimised by the Ombudsman. As found by the Tribunal, there is no evidence at all to support such assertions.
The plaintiff has not demonstrated any error in the Tribunal's refusal to grant leave. As such, the summons must be dismissed.
In the circumstances, I make the following orders: 1. Grant an extension of time to file the summons seeking judicial review. 2. Dismiss the summons. 3. The plaintiff is to pay the first defendant's costs. 4. The motions filed 30 March 2023, 27 April 2023, and 27 October 2023 are dismissed.

Endnotes

See Choi v NSW Ombudsman [2022] NSWSC 1681.
Choi v NSW Ombudsman [2021] NSWCA 68 at [1].
Choi v NSW Ombudsman [2021] NSWCA 68.

Amendments 09 April 2024 - order 4 included on coversheet and at [79] 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 April 2024

(2017) 107 NSWLR 341

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