On 27 August 2019 I published my decision in Choi v University of Technology Sydney [2019] NSWCATAD 176 with respect to the review of Ms Choi's application for access to information from the University of Technology Sydney (UTS) under the Government Information (Public Access) Act 2009 (the GIPA Act). Relevantly, I made the following substantive orders:
(2) Under s 109 of the Government Information (Public Access) Act 2009 the Tribunal refuses to deal further with Ms Choi's review application because it is frivolous, vexatious, misconceived and lacking in substance.
(3) The review application is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 because it is frivolous, vexatious, misconceived and lacking in substance.
I also made orders with respect to any application for costs and the filing of submissions relating to costs, which would be determined on the papers. I remain of the view that the costs issues can be readily determined on the papers and dispense with the need for a hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
In my reasons for decisions I wrote:
59 In her affidavit Ms Choi responded to a number of UTS allegations as to how past proceedings and the without prejudice letter demonstrate her vexatious intent. While I have read these passages closely they do not provide a coherent or cohesive explanation. They are reminiscent of a pattern, sometimes seen among repeat litigants, of a genuinely held sense of grievance spiralling out of control to encompass new individuals and organisations, who the litigant perceives as adding to, or subverting, their grievances in an escalating conspiracy. I am left with the impression that Ms Choi has a genuine sense of grievance, which grievance is so overwhelming that rational thought and analysis have been abandoned in her pursuit of vindication. Her present application, as pressed by her, was always untenable and therefore vexatious.
On 17 September 2019 UTS filed an application seeking orders that Ms Choi pay UTS's costs of the proceedings. UTS also asked that I make a recommendation to the Attorney General, under s 8(6) of the Vexatious Proceedings Act 2008, that he consider making an application for a vexatious proceedings order against Ms Choi.
Under the timetable I had set, Ms Choi had 21 days from the date of UTS's costs application in which to file submissions in reply.
In the meantime, Ms Choi had filed an application to set aside my decision under Reg 9 of the Civil and Administrative Tribunal Regulation 2013, which was being considered by Principal Member Britton. On 15 October 2019 that application was refused: see Choi v University of Sydney [2019] NSWCATAD 212.
By 28 October 2019 the Tribunal file had been returned to me to consider UTS's costs application. It was apparent that:
1. Ms Choi had not filed submissions in reply; and
2. UTS had not provided the Tribunal with a genuine estimate of its costs as required by my original orders.
I was very surprised that Ms Choi had not filed submissions in reply and thought it probable that her attention had been diverted by the set aside application. I made directions in which I noted that:
Neither party has complied with directions 4 and 5 made by the Tribunal on 27 August 2019. UTS has not provided a genuine estimate of the quantum of costs sought with respect to the original application and Ms Choi has not suppled submissions. This may be because the parties' attention has been distracted by the set aside proceedings.
The Tribunal asked UTS to provide a genuine estimate of the quantum of costs sought in case it decided to fix UTS' costs.
I made the following directions:
a) By 6 November 2019 UTS shall file and serve a genuine estimate of the quantum of costs sought: no further submissions on costs are required.
b) By 12 November2016 Ms Choi shall file submissions in reply on the issue of costs.
By letter dated 30 October 2019 UTS's solicitors advised that they had incurred costs and disbursements of at least $25,000 in the matter.
On 12 November 2019 Ms Choi filed:
1. submissions in reply; and
2. a statement with annexures.
The statement principally addresses and denies the allegation that Ms Choi is a vexatious litigant. It makes allegations against UTS, and seeks that UTS be punished for delays etc. The submissions do the same, in part.
[2]
The request for a referral to the Attorney General under s 8(6) of the Vexatious Proceedings Act
Section 8(6) of the Vexatious Proceedings Act provides:
(6) A judicial officer, member or registrar of a court or tribunal may make a recommendation to the Attorney General that he or she consider making an application for a vexatious proceedings order in relation to a specified person.
UTS has pressed in both the GIPA Act proceedings and now on a costs application, for the Tribunal to recommend to the Attorney General that he consider making an application for a vexatious proceedings order in relation to Ms Choi. It relies on a series of proceedings commenced against UTS by Ms Choi in the Tribunal, some of which were ultimately settled after a guardian ad litem was appointed for her (on UTS' application), as well as her conduct in the proceedings before me. Indeed, a substantial portion of UTS' submissions in these proceedings addressed that issue rather than the substantive issues.
Ms Choi's statement in which she denied being vexations is of no real assistance on this question.
Section 8(6) provides that members of courts or tribunals, as well as registrars of those institutions, "may" make a referral. In my experience such recommendations are made on an organisational basis, following consultations among members and registry officers in which a collective view is reached. This is undertaken bearing in mind the potentially very serious consequences of making such a referral.
That is not to say that there will not be cases where an individual member will be moved to make such a recommendation.
This is not a case in which I am persuaded to make such a recommendation. My dealings with Ms Choi have not been restricted to this matter alone. While Ms Choi has at times brought untenable proceedings vexatiously, she has also pursued matters of some substance. I am not persuaded, at this time, that the balance favours a recommendation to the Attorney General.
It is open to UTS to make its own application for a vexatious proceedings order with respect to Ms Choi: see s 8(4)(d) of the Vexatious Proceedings Act.
[3]
The costs issue
Section 60 of the NCAT Act provides:
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g) any other matter that the Tribunal considers relevant.
(4) If costs are to be awarded by the Tribunal, the Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
Ms Choi's application under the GIPA Act was dismissed because I found it was frivolous, vexatious, misconceived and lacking in substance. This is a circumstance to which I may have regard in determining that there are special circumstances meriting a costs order in UTS' favour.
In her submissions Ms Choi argued that by failing to provide a genuine estimate of its costs, with its initial costs submissions, UTS had disadvantaged her, delayed her submissions, and failed to comply with Tribunal orders: for which, she said, UTS should be punished under s 72 of the NCAT Act. Ms Choi sought details of how the costs estimate of $25,000 was arrived at. She also asserted that she had not acted vexatiously.
A number of points need to be made about these submissions:
1. any prejudice Ms Choi may have suffered by UTS's delay in providing an estimate of cost was alleviated by the extension of time I put in place on 28 October 2019;
2. I did not require UTS to provide details of its costs estimate;
3. I have already determined that the proceeding were vexations; and
4. I do not have the power to impose civil penalties under s 71 (see s 27(2)(c) of the NCAT Act.
In my view, special circumstances exist in this case to warrant making an order that Ms Choi pay UTS's cost associated with the review under the GIPA Act. While the issues were not complex, UTS was put to the expense of defending untenable and vexatious proceedings which were bound to fail.
Those costs should not include costs associated with UTS' submissions seeking to have the Tribunal recommend to the Attorney General that he consider making an application for a vexatious proceedings order with respect to Ms Choi. Those submissions were not necessary for UTS's case and were not successful.
I had contemplated fixing UTS costs in this matter but was taken aback by the $25,000 estimate provided by UTS' solicitors: in a relatively simple case which was decided without a hearing on the papers. I will order that if not agreed the costs be assessed.
[4]
Order
The Tribunal orders that:
1. The Tribunal dispenses with a hearing of the costs issues under s 50(2) of the Civil and Administrative Tribunal Act 2013.
2. Ms Choi shall pay UTS costs of the proceedings (excluding those costs associated with UTS' submissions seeking to have the Tribunal recommend that the Attorney General make an application for a vexatious proceedings order with respect to Ms Choi).
3. Those costs, if not agreed, are to be assessed.
[5]
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: 20 January 2020