Choi v University of Technology Sydney

Court of Appeal (NSW)|2020-12-07|Before: Bell P

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background to the proceedings

As already noted, Ms Choi was enrolled in a Bachelor of Nursing degree at UTS between 2014-2016. On or about 26 August 2016, UTS made a decision to discontinue Ms Choi's enrolment in her degree (the discontinuance decision).
In about September 2016, UTS commenced disciplinary action against Ms Choi in relation to alleged misconduct.
Ms Choi appealed the discontinuance decision, which was ultimately upheld by the UTS Professional Experience Appeals Committee in December 2016.
On 30 November 2016, Ms Choi lodged a complaint with the Anti-Discrimination Board, alleging that UTS had, inter alia, discriminated against her on the grounds of disability in the area of education. On 5 June 2017, the Anti-Discrimination Board dismissed this complaint. Ms Choi subsequently sought leave to review that decision at the Tribunal.
On 11 November 2017, the Tribunal handed down its decision, allowing Ms Choi leave to a review by the Tribunal of the Anti-Discrimination Board complaint.
Between February and August 2018, Ms Choi filed three review applications in the Tribunal, in relation to (i) an access application made by Ms Choi to UTS; (ii) a decision made by UTS regarding an alleged breach of privacy; and (iii) another access application made by Ms Choi to UTS. On 13 August 2018, Ms Choi instituted contempt proceedings against UTS.
On 14 August 2018, the Tribunal appointed Mr Hoyles as a guardian ad litem (GAL) in respect of four of the abovementioned six applications. In September 2018, Mr Hoyles was appointed as GAL in respect of proceedings commenced by UTS against Ms Choi. In this proceeding, UTS sought an order under s 110 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) (the s 110 order), under which Ms Choi would require the approval of the Tribunal to make any further access applications to UTS. In October 2018, Mr Hoyles was appointed as GAL in relation to the last of the six proceedings, with the consent of Ms Choi.
A mediation was conducted between Ms Choi and UTS in November 2018, and a Heads of Agreement was prepared, which was signed by Mr Hoyles as GAL. A Deed of Settlement (the Deed) was later prepared and signed by Mr Hoyles on 10 December 2018, which provided for the GAL to withdraw each of the applications brought by Ms Choi, and for the Tribunal to be requested to dismiss those applications. The Deed provided for the Consent Order in respect of the application commenced by UTS to be proposed to the Tribunal.
The applications were listed before the Tribunal on 18 December 2018 to consider whether it was in the best interests of Ms Choi that each proceeding commenced by her be dismissed, and that the Consent Order proposed be made with respect to the application commenced by UTS.
The GAL gave evidence to the effect that it was not in the best interests of Ms Choi to continue the proceedings. However, Ms Choi opposed the dismissals and the making of the proposed Consent Order.

The decision of the Tribunal at first instance

At [23] of the decision by the Tribunal at first instance, the Tribunal stated that it agreed with the concern of the GAL as to the impact on Ms Choi's mental health of the continuation of the proceedings. The Tribunal noted that the GAL had, with the benefit of legal advice, formed the view that the matters the subject of the applications did not have sufficient merit to warrant their continuation.
At [24], the Tribunal concurred with the GAL's assessment that the terms of the settlement achieved a resolution of many of the outstanding substantive matters ventilated by Ms Choi in her various applications, and limited her ongoing exposure to costs orders.
The Tribunal stated that it was satisfied that in reaching a settlement that ended the proceedings, the GAL had acted in the best interests of Ms Choi: at [24]. The Tribunal stated that it had taken into account Ms Choi's written and oral submissions and that, notwithstanding Ms Choi's views, the Tribunal agreed with the GAL that it was in the best interests of Ms Choi to end the proceedings on the basis of the agreement as reached between the parties: at [24].
At [28], the Tribunal also noted that it was in the best interests of Ms Choi that the s 110 order as sought by UTS in the Consent Order be made.

The decision of the Appeal Panel

Ms Choi filed a notice of appeal with respect to the decision of the Tribunal. In essence, she submitted that the actions of the GAL in withdrawing Ms Choi's five applications and consenting to the s 110 order in the UTS application were actions taken against her interests. Ms Choi argued, inter alia, that the GAL failed to act in a way that was in Ms Choi's interests by withdrawing her proceedings, and that the Tribunal failed to take into account Ms Choi's interests by relying on the GAL's "incorrect evidence" and "baseless observation" as to the assessment of her mental condition.
On appeal, the Appeal Panel held that no error of law had been identified, and that there were no circumstances justifying the granting of leave to appeal: at [24].
With respect to Ms Choi's submission that the GAL failed to act in a way that was in her best interests by withdrawing the applications, the Appeal Panel held that Ms Choi had not put forward any argument which would or could lead to the conclusion that the withdrawal of the applications and consequential dismissals were not in her best interests: at [28]. The Appeal Panel held that it could not be inferred that the GAL acted other than independently, and given that he was duty bound to form his own view as to what should be done in Ms Choi's best interests, there was no evidence justifying the conclusion that he acted contrary to that duty: at [29].
With respect to Ms Choi's submission that the Tribunal relied on "incorrect evidence" as to the assessment of her mental condition, the Appeal Panel held that the ground was misconceived, as the Tribunal took into account the views of both the GAL and of Ms Choi, but preferred the views of the former, and that there was no error in the Tribunal's consideration of the views of each: at [32].
At [37], the Appeal Panel held that there had been no substantial miscarriage of justice, no matter of principle involved and no clear injustice which existed in the case. There was, therefore, no warrant for a grant of leave to appeal. The Appeal Panel dismissed the appeal.

Grounds of appeal and submissions by Ms Choi

Ms Choi filed a summons seeking leave to appeal to this Court on 31 July 2020. By her draft notice of appeal filed on the same day, Ms Choi outlined seven grounds of appeal, with a total of 26 sub-parts to these grounds. Due to their length and the fact that the grounds of appeal were not in proper form, a summary of what we understand to be the appeal grounds follows which seeks to incorporate Ms Choi's submissions in relation to those grounds.
In her written submissions, Ms Choi stated that the "nature of the case" was: "The Civil and Administrative Tribunal of New South Wales… wrongly exercised federal judicial power in appointing a guardian ad litem ('GAL') of the State of New South Wales for me in Korea, dismissing my five proceedings, and enforcing s110 of the Government Information (Public Access) Act 2009 ('GIPA Act') against the Applicant in Korea".
Ms Choi also provided a summary of her argument in which she contended that: "(1) The Tribunal failed to take into account the matters which s3(a) and s3(g) of the NCAT Act required it to take into account; and (2) The Tribunal based the Decision on findings in respect of which there were inadequate reasons or which were legally unreasonable. (3) The Tribunal denied to procedural fairness".
By appeal ground 1, Ms Choi argued that NCAT wrongly exercised federal judicial power, and that NCAT wrongly argued that it had power to dismiss Ms Choi's applications and enforce s 110(1) of the GIPA Act against her as she lives in South Korea. Ms Choi argued that NCAT did not have power to enforce State law against her, as she was living overseas. In written submissions, Ms Choi submitted that: "Section 3(a) and 3(g) of the NCAT Act especially states that the jurisdiction of the Tribunal is within 'in the State'. I have lived in Korea since 3 December 2016. I was in Korea when the proceedings were commenced. Thus, none of the judicial power by the Tribunal can be exercised against me…" (emphasis in original).
Under the heading "the Tribunal is not a Court of a State", Ms Choi submitted that: "The Tribunal duly exercised federal administrative power but started to wrongly exercise federal judicial power from the GAL matter; The Tribunal had no jurisdiction to hear and determine the matter; Hennessy LCM had no jurisdiction to appoint Mr Hoyles as my GAL in 2018/274005; Hennessy LCM had no jurisdiction to order Mr Hoyles to withdraw my proceedings and order Member to take into account my 4 December email. The Australian government officials have no jurisdiction to enforce any debt in overseas. There is no remedies for UTS. That would be another evidence showing that the Tribunal had no jurisdiction to hear and determine the matters". (footnotes omitted).
By appeal ground 2, headed "An International GAL of the State", Ms Choi argued that the primary judgment gave inadequate reasons by stating that there was no irregularity in appointing Mr Hoyles as GAL in proceedings 2018/274005. Ms Choi argued that an irregularity did exist, as Mr Hoyles "belongs to the State of NSW", and he thus had "no power to represent someone in Korea". In written submissions, Ms Choi further submitted that: "Hennessy LCM wrongly exercised judicial power in appointing a GAL of the State within the portfolio of New South Wales for me. Mr Hoyles, belonging to the GAL panel of the Secretary of the General of the Department of Justice of New South Wales, was under the Civil and Administrative Tribunal of New South Wales Regulation 2013 Reg10. Accordingly, Mr Hoyles was unqualified as my GAL. Therefore, consent by unqualified person is invalid; Regina v Halmi [2005] NSWCCA 2; R v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2".
By appeal ground 3, headed "Legally unreasonable findings", Ms Choi argued that the Tribunal at first instance erroneously concluded that it had no power to revoke the appointment of the GAL. Ms Choi pointed to cl 15 of the GAL Guidelines, which state that a Tribunal can reverse its decision to appoint a GAL if the party regains capacity. Ms Choi thereby argued that the Appeal Panel made a "legally unreasonable finding" by stating that there was no evidence to show that Ms Choi was competent to represent herself at the Tribunal. Accordingly, she submitted that "the Tribunal exercised discretionary power in a way which can be characterised as legally unreasonable", which was "plainly unjust".
By appeal ground 4, headed "International Settlement Agreement", Ms Choi argued that "NCAT did not take into account Mr Hoyles' limited jurisdiction within the State", and that Mr Hoyles had no jurisdiction to represent Ms Choi as she was residing in Korea. Ms Choi further submitted that as the Deed was made under NSW legislation, she did not have to comply with it in Korea; that UTS had no jurisdiction to enforce any debt overseas; and that as Mr Hoyles signed the Deed without independent legal advice, it was invalid.
By appeal ground 5, headed "Denial of procedural fairness", Ms Choi argued that the Tribunal did not offer procedural fairness to her by failing to make orders which gave effect to certain clauses of the Deed which benefited her, and that as the Tribunal did not exercise its discretion in circumstances when it should have been exercised. Ms Choi further outlined that NCAT did not have jurisdiction to hear and determine whether or not Mr Hoyles acted in her best interests, and thus the hearings and judgment were invalid and amounted to an error of law.
By appeal ground 6, headed "Inadequate reasons: Giving everything but receiving nothing", Ms Choi argued that Mr Hoyles' actions of withdrawing her proceedings and consenting to the orders proposed by UTS was not in her best interests, and that the Tribunal at first instance was wrong to hold that it was. Ms Choi thus argued that the reasons of the Tribunal were inadequate and amounted to an error of law. Ms Choi argued that instead of Mr Hoyles' actions being in her best interests, they were in fact in "NCAT's best interests".
In written submissions, Ms Choi also submitted that the Tribunal failed to take into account the matters which ss 3(a) and (g) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) required it to take into account. This section deals with the objects of that Act, with the relevant sub-sections providing as follows: "Objects of Act The objects of this Act are - (a) to establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and … (g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members".
As to whether leave to appeal should be granted, Ms Choi submitted that: 1. NCAT wrongly exercised federal judicial power; 2. the proceedings had historical importance, as although there are many cases about the jurisdictional errors by NCAT between different states, there are no cases about the jurisdictional errors by NCAT between different countries, and that the Tribunal went beyond State, and made jurisdictional errors internationally; 3. there was an injustice, in that NCAT refused to reverse the GAL decision which was "absurd" and "ridiculous" and which "ridiculed" Ms Choi; and 4. that UTS spent "public resources" by spending millions of dollars in the proceedings, and thus "this matter could alarm the public officers".
Ms Choi further submitted that: "The degree of injustice that I suffered as a consequence of the judgment of NCAT is enormous. My legal right to access my information has been deprived. In August 2004, at the Australian citizenship ceremony, I became an Australian citizen after I made the pledge 'From this time forward, under God, I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey'. However, Australia betrayed me and refused to share its rights with me. I command the Court of Appeal here to return my rights". (footnote omitted).

Submissions by UTS

With respect to the jurisdictional issue, UTS submitted that contrary to Ms Choi's submission: "…it is not a constitutional question, in the sense that any question arises under or involves the interpretation of the Constitution, notwithstanding the Applicant's references to authority in that area. The result is that s 78B of the Judiciary Act 1903 (Cth) is not engaged and the Court can proceed to determine the application without the procedure prescribed in that section being followed".
With respect to Ms Choi's reference to authorities concerning federal jurisdiction, UTS submitted that: "The only way these authorities could be invoked is if the Tribunal were in fact exercising jurisdiction which was capable of being described in terms of one of the heads of jurisdiction prescribed in ss 75 and 76 of the Constitution, and if it is accepted that in a particular type of proceeding the Tribunal was exercising 'judicial' power. The point appears to have been inspired by Burns v Corbett (2018) 265 CLR 304. But that decision cannot assist the Applicant. It concerned litigation which amounted to a matter 'between residents of different States' within s 75(iv) of the Constitution. Here, Ms Choi does not say she resides in any State of Australia other than New South Wales. Nor even does she reside in a Territory. She resides overseas. None of the paragraphs of s 75 of the Constitution are engaged in such a case. This is not a matter arising under a treaty, or affecting consuls or other representatives of other countries, or to which the Commonwealth or a person on its behalf is a party, or in which relief is sought against an officer of the Commonwealth, or in which any other State or a resident of any other State is a party. Nor is s 76 of the Constitution engaged. There is no issue arising under any law made by the federal Parliament, or of admiralty or maritime jurisdiction, or raising any conflict between laws of different States (s 76(ii)-(iv)). And one cannot make a matter into one which arises under the Constitution or involves its interpretation (s 76(i)) simply by mis-stating the effect of the Constitution and hoping it will be treated as a legitimate constitutional issue. The Applicant has not invoked any provision of the Constitution which is capable of applying to her circumstances, and there is none. That makes it unnecessary to consider whether the Tribunal was exercising judicial power when it determined by consent each of the four or so different types of case, although it should be observed that the conclusion on that point would not necessarily be the same in each respect." (emphasis in original).
With respect to Ms Choi's submission that the GAL himself had no capacity to represent a litigant residing overseas, UTS submitted that there is no law at all to support such a contention. UTS submitted that: "If the Applicant was able to invoke the Tribunal's jurisdiction herself, despite living overseas (and conducting such litigation for several years by telephone and email), then the Tribunal was able to appoint a person to represent her".
With respect to Ms Choi's submission that the Tribunal did not pay consideration to ss 3(a) and (g) of the NCAT Act, UTS submitted that: "These objects are not of such a nature that they must be explicitly addressed in each Tribunal decision. Plainly, the Tribunal must have appreciated that it existed, was independent, and was a single point of access for relevant tribunal services. There was nothing in its conduct or reasons for decision - and nothing in particular is alleged - which is apt to affect public confidence in its decision-making. This complaint must therefore be rejected".
With respect to Ms Choi's submission as to a lack of procedural fairness, UTS responded that this contention was "baseless", as Ms Choi was given opportunities to make her case, had the benefit of an interpreter, and there was no evidence of any prejudice of the nature alleged.
UTS submitted that leave to appeal should be refused, as: "No question of principle arises. No issue in the proposed appeal otherwise has any public importance. For the reasons given above, there is no prospect of any such appeal succeeding. The resources which would be consumed in preparing for and hearing an appeal in full would be wasted. This is a clear case. There is no conceivable way to think that any injustice will be done by refusing leave to appeal".

Consideration

A grant of leave to appeal generally requires there to be identified an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: see, for example, Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
We accept the submissions of UTS that these criteria are not satisfied in the present case.
The principal legal thrust of Ms Choi's argument is a misconceived attempt to translate the reasoning of the High Court in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15, a case involving a dispute between citizens from different states, to the circumstances of her case. "Diversity" jurisdiction can give rise to constitutional questions (see also Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3; Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48) but those questions do not arise in a situation where one party resides overseas. Moreover, where that party invokes the jurisdiction of the Tribunal, she submits to the jurisdiction and makes herself amenable to its procedural apparatus. In the present case, that included the ability of the Tribunal to appoint a GAL.
The GAL did not purport to act in any extraterritorial fashion. His actions took place in New South Wales in relation to proceedings commenced in New South Wales.
The balance of Ms Choi's submissions were answered by UTS's submissions which have been summarised earlier in these reasons.
No error of principle or question of public importance has been identified which would attract a grant of leave to appeal.
The application for leave to appeal must be dismissed with costs.

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: 17 December 2020

(2020) 102 NSWLR 123

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