Choi v University of Technology Sydney

NCAT Appeal Panel|2020-01-24

Overview

Ms Choi has appealed from a decision of the Tribunal dismissing her application under the Government Information (Public Access) Act 2009 (GIPA Act). The application was dismissed because the Tribunal decided that it was frivolous, vexatious, misconceived and lacking in substance. Ms Choi appealed on two main grounds. First, she said that the Appeal Panel should accept new evidence of a phone call between herself and a police officer. Secondly, she said that a case conference that took place before the Tribunal decided her application, was unfair and that the Tribunal Member conducting the conference did not understand what her application was about.
Ms Choi was a student at the University of Technology Sydney when she claims that her landlord sexually assaulted her. She complained to the NSW Police Force but says that they did not investigate. The reason she says they did not investigate was that a police officer phoned an officer from the University who said Ms Choi makes up stories. In an affidavit dated 16 May 2019 that was before the Tribunal, Ms Choi stated that, "on/around 4 November 2016, one police officer told me that the Police is relying on UTS's statement, 'Ms Choi makes up stories. The current NCAT proceedings are made up by Ms Choi. My sexual complaint must be made up by Ms Choi.'"
On appeal, Ms Choi asked the Appeal Panel if she could rely on new evidence. That evidence was a transcript of a phone call she says she had with a police officer. The police officer is recorded as saying, "So I've spoken to UTS, I'm aware that you were making complaints against them and that you are taking them to NCAT . ." The context of the phone call was a discussion about an allegation that Ms Choi's landlord had stolen a diamond ring from her.
We have decided not to admit this new evidence because it would have made no difference to the Tribunal's decision. We explain our reasons in more detail below.
We have also decided that what happened at the Tribunal case conference on 17 April 2019 is not relevant to any issue on appeal. That is because Ms Choi has not appealed from any of the directions the Tribunal made at the case conference. Her appeal is from the final decision made on 27 August 2019. We explain our reasons in more detail below.

Applications for access

On 2 November 2018 Ms Choi applied to the University for access to information about a phone call between a police officer at Dee Why police station and an officer of the University. The first part of that application was as follows: 1. I was raped. I reported it to the Dee Why police station. One police officer called University of Technology Sydney in October or November 2016. One police officer decided to cease the investigation by the impact of what UTS had said, which one female police officer told me. I need to access any emails/documents/minutes regarding the police officer's phone call and this relevant matter.
The University replied to Ms Choi on 9 November 2018 telling her that her application was invalid because it did not have enough detail (the invalidity decision). The University stated that: We require further details to assist with locating the information requested before we can accept your application as valid.
The University asked Ms Choi for further details of the information she was requesting. The University told Ms Choi that if she wanted to go ahead with the application she should provide these details.
On the same day, 9 November 2018, Ms Choi says she applied to the Information Commissioner for a review of the invalidity decision. On 13 November 2018, before receiving a reply from the Information Commissioner, Ms Choi wrote to the University amending the scope of her application: My access application under the GIPA Act lodged on 2 November 2018 1. After receiving your letter "Invalid application" on 9 November 2018, I decided to amend the scope. I want to access to only one item in relation to "the Police Officer". I will lodge another separate access application for other items. 2. I want to access to the below information. (1) On/around 7 November 2016, one police officer from the Dee Why Police Station or other Police Station called UTS. The Police Officer's name can be "[name]" or "[name]". The investigation number is E540486091. (2) I want to access to UTS's staff name who spoke with a police officer on the phone regarding me "Jae Hee Choi" on/around 7 November 2016. (3) This UTS's staff made a report or a note regarding the matter. I want to access to the report or note. (4) This UTS's staff emailed other UTS's staff including [7 names] regarding the matter. I want to access to the emails. (5) The other UTS's staff emailed other UTS's staff regarding the matter. I want to access to the email. (6) The conversation contents between this UTS's staff and the police officer. (7) All the information/ documents /minutes/ emails/ correspondence/reports/Lex documents regarding the above (1) or (2) or (3) or (4) or (5) or (6). 3. You are requesting me to amend the other items. For the urgency and the importance, I will lodge a new access application including what you are requesting.
The amended application requested the same information about the phone call and other communications, but was more specific about dates and included the names of police officers who may have spoken to an officer of the University.
On 11 December 2018, the University told Ms Choi that they could not find any information she had requested in the amended application. The formal decision was that they did not hold the information (the not held decision). On the same day Ms Choi applied to the Information Commissioner for an external review of the not held decision.
On 22 January 2019, the Information Commissioner issued two review reports. The first report was about the invalidity decision. The process for dealing with an access application is set out in s 51 of the GIPA Act. When an agency receives an application for access to documents, it must make an initial decision as to the validity of the application. Section 41 sets out the formal requirements for a valid application. Those requirements include that "it must include such information as is reasonably necessary to enable the government information applied for to be identified."
The Information Commissioner found that the initial application was valid because it had enough details to allow the University to identify the information and process the application. The Information Commissioner recommended that the University accept that the application is valid and continue to process the application. The Information Commissioner did not consider whether the University held any of the requested information.
The Information Commissioner's second report was about the University's "not held decision" in response to Ms Choi's amended application. The Information Commissioner pointed out that under s 53 of the GIPA Act, an agency must undertake reasonable searches to find the requested information. The Information Commissioner considered the following two questions summarised by the Tribunal in Smith v Commissioner of Police [2012] NSWADT 85 at [27]: 27. In making a decision as to the sufficiency of an agency's search for documents which an applicant claims to exist, there are two questions: (a) are there reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so, (b) have the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
The Information Commissioner found that there were reasonable grounds to believe that the requested documents existed and were the University's documents. That finding was based on Ms Choi's report of a conversation between herself and a police officer. The Information Commissioner did not find that the documents existed, just that there were reasonable grounds to believe that information existed. The Information Commissioner then set out in detail the searches that the University had made for the information. Based on that evidence, the Information Commissioner concluded that the University had "conducted reasonable searches for the information requested" and that the University's decision that it did not hold the information was justified.
On 6 February 2019, the University wrote to the Information Commissioner advising that it would not be following the recommendation to review the invalidity decision. The University gave the following reason for not doing so: Access Application GIPA2018/07 was subsequently made valid and completed. The applicant had amended the scope of her application, reducing the information requested before it was processed. The information removed from the scope of information requested was ultimately not considered. No further action will be taken.
The University was saying in this letter that Ms Choi was only going ahead with her application for access to the information about the phone call. The University had accepted that application as valid and processed it. The University was inferring that there was no point processing Ms Choi's initial application because they had now made a decision based on the amended application. We repeat that the amended application requested the same information about the phone call and other communications, but contained more detail to help identify the information.

Application to the Tribunal

On 11 March 2019, Mr Choi lodged an application for administrative review with the Tribunal. Attached to the application were copies of both the reports from the Information Commissioner. Ms Choi also attached the 6 February 2019 letter from the University. In that letter, the University stated that it would not be conducting an internal review of the invalidity decision. Under the heading "grounds for application" Ms Choi wrote: (1) Although the Information and Privacy Commissioner recommended the respondents release the information I was seeking, the Respondent has not released the information (IPC/R000660) (2) I believe the Respondent has not released the relevant information although the Respondent is keeping the information (IPC/R000680)
We note that Ms Choi interpreted the Information Commissioner's first report as recommending that the University give her the information she had requested. The Information Commissioner did not make that recommendation. She merely recommended that the University accept the application as valid and continue to process the application.

Case conference on 16 April 2019

At a case conference on 16 April 2019, the University indicated that it would apply for an order under s 109 of the GIPA Act that the Tribunal refuse to deal further with Ms Choi's application. Section 109 of the GIPA Act provides that: NCAT may refuse to review or to deal further with a review of a decision of an agency if NCAT is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance. ...
The Tribunal is given a similar power by s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal has power to summarily dismiss an application: (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, ...
The Tribunal directed the parties to lodge and exchange submissions about the dismissal application. At the case conference Ms Choi indicated that she wanted to withdraw her application and make a fresh application. The Tribunal noted on the directions sheet that if Ms Choi wished to withdraw her application, she needed to write to the Tribunal and the University. Ms Choi did not do so.
In late submissions on appeal, Ms Choi said that the case conference was unfair in various ways and that the Tribunal treated her application "as a review application of the notice of decision by UTS."
We address these grounds of appeal in more detail below, but we note here that the Tribunal only has power to review the decisions listed in s 80 of the GIPA Act. In this case, those decisions are the University's invalidity decision and the University's not held decision: GIPA Act, s 80(a) and (e). The Tribunal does not have power to review the decisions made by the Information Commissioner in her reports. Most significantly, the Tribunal does not have power to review the University's decision in the 6 February 2019 letter not to conduct an internal review of the invalidity decision.

Tribunal's decision

The Tribunal had difficulty understanding which decision Ms Choi was asking to be reviewed. The Tribunal expressed the view at [23], that Ms Choi's written grounds for seeking a review of the University's determinations do not make sense. The Tribunal noted that, "No information had been identified and no recommendations for release had been made by the Information Commissioner."
Initially the Tribunal and the University understood Ms Choi's application to be seeking administrative review of both the invalidity decision and the not held decision. But the only decision Ms Choi addressed in her written submissions was the invalidity decision of 9 November 2018. Before the hearing, which was decided 'on the papers', the Tribunal clarified with Ms Choi that she only wanted the Tribunal to review the University's invalidity decision of 9 November 2018. Despite Ms Choi now saying that she did not understand what the Tribunal was asking her, we are satisfied that she understood the question. The question was put to her in writing and it was clearly stated. The Tribunal found that Ms Choi's application to review the invalidity decision should be dismissed. The Tribunal also refused to deal further with Ms Choi's application.
The Tribunal noted that Ms Choi had amended her access application at the University's request. The Tribunal rejected her claim that she did so involuntarily. The Tribunal went on at [55]: A consequence of that amendment was that UTS accepted the amended application as a valid access application and went on to decide that the information Ms Choi sought is not held by it. Ms Choi's present attempt to review the invalidity decision, after the access application it is based on has been amended and processed by UTS, is clearly frivolous, misconceived and lacking in substance. I am also satisfied that the review application is so "obviously untenable or manifestly groundless as to be utterly hopeless" and is therefore vexatious in the third sense described by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491.

Permission to appeal

Four preliminary issues arise on appeal. Each of those issues relates to whether the Appeal Panel should give Ms Choi permission to appeal. First, Ms Choi's appeal is about a month out of time so she needs the Appeal Panel's permission before it can go ahead. Secondly, the appeal is from an interlocutory decision, to summarily dismiss an application. Ms Choi needs the Appeal Panel's permission to appeal from that kind of decision. Thirdly, Ms Choi's appeal does not identify any question of law. She needs the Appeal Panel's permission to appeal on questions other than questions of law. Finally, Ms Choi sought to amend her grounds of appeal a few days before the hearing. She needs the Appeal Panel's permission to amend those grounds.
There are many factors to take into account when deciding whether to give permission to appeal. In this case, there are only two main grounds of appeal and they are not complicated. We gave the University an opportunity to address late submissions at the hearing. In those circumstances, the 'just, quick and cheap resolution of the real issues in the proceedings' supports our decision to give Ms Choi permission to appeal on each basis outlined above: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 36. We will now address the grounds of appeal.

New evidence

Ms Choi wants the Appeal Panel to consider new evidence which she says shows that the information she has requested exists. As we have said, that evidence is a transcript of a phone call she had with a police officer. During that call, a police officer says, "So I've spoken to UTS, I'm aware that you were making complaints against them and that you are taking them to NCAT . ." The context of the phone call was a discussion about an allegation that Ms Choi's landlord had stolen a diamond ring from her.
We have decided not to accept this new evidence on appeal. Even if the Tribunal had had the transcript, it would have made no difference to the decision. That is because Ms Choi requested that the Tribunal review the invalidity decision, not the not held decision. The issue of whether the information exists does not arise in the invalidity decision.
Even if Ms Choi was asking the Tribunal to review the not held decision, the University did not decide in that decision, that the information did not exist. Impliedly, the University found that there were reasonable grounds to believe that the requested information existed: Smith v Commissioner of Police [2012] NSWADT 85 at [27]. But, when the University looked for the information, it could not find any information that answered Ms Choi's request. More evidence that the information exists, such as the transcript of the phone call, would not have led the University or the Tribunal to make a different decision.

Case Conference

Ms Choi complains that she had no idea what was going on at the case conference because the Senior Member "restricted a Korean interpreter from interpreting and disconnected the phone call with a Korean interpreter". She also alleges that the Senior Member and the solicitor for the University "exchanged jokes while I was absent due to disconnected phone". Finally, Ms Choi alleged that "UTS's dismissal application was regarded as a preliminary matter under the unfair and discriminated environment."
Ms Choi made several procedural objections including: whether both a solicitor and a barrister should be able to represent the University; that the Senior Member would have been overwhelmed by the University's representatives who were 'numerically superior" to her; that the University's solicitor 'instructed' the Senior Member to limit submissions to 10 pages; and that the Senior Member 'fabricated (her application) by treating it as a review application of the notice of decision by UTS." Ms Choi makes other similar allegations in the document filed on 20 January 2020.
We have read the extracts from the transcript of the case conference. The Senior Member treated Ms Choi in a fair and polite manner. She did not deliberately disconnect the phone or unduly restrict the interpreter. The Senior Member attempted to clarify the decision that Ms Choi was asking to be reviewed. The only options were the invalidity decision or the not held decision. Ms Choi said repeatedly in her submissions to the Appeal Panel that she objected to the Tribunal treating her application as a review of a notice of decision by the University. Ms Choi did not appear to appreciate that, in the circumstances of this case, they were the only decisions the Tribunal had power to review.
At the case conference the Tribunal directed the parties to lodge and exchange submissions relating to the University's application for summary dismissal. Ms Choi has not asked for permission to appeal from those interlocutory directions. The appeal is from the final orders made by the Tribunal on 27 August 2019. In any case, nothing that happened at the case conference affected the final decision. The Senior Member merely attempted to identify the decision under review and directed the parties to make written submissions about the University's application for summary dismissal.
We have not taken into account what Ms Choi says happened at a mediation on 26 November 2018. That is because, subject to some exceptions which are not relevant, "evidence of anything said or of any admission made in a mediation session is not admissible in any legal proceedings before any court or other body": Civil and Administrative Tribunal Regulation 2013 (NSW), Sch 1, clause 10(4).
Ms Choi amended the scope of her initial application by describing the same information in more detail. That application effectively replaced the initial application. The University has looked for the information and says that it cannot find any information described in the amended application. Ms Choi has not applied for a review of that decision (the not held decision). None of Ms Choi's grounds of appeal relate to the Tribunal's statement of the law or reasoning. Even so, as Ms Choi is not represented by a lawyer, we have assessed the Tribunal's decision ourselves. In our view, the Tribunal did not make any legal or factual error in summarily dismissing Ms Choi's application for review of the invalidity decision.

Costs

The University applied for Ms Choi to pay its costs. The general rule set out in s 60 of the NCAT Act is that each party is to pay their own costs unless the Tribunal is satisfied that there are "special circumstances warranting an award of costs." (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.
We agree with the then President of VCAT, Morris J that the general rule that parties should bear their own costs is designed to promote access to justice generally and to minimize the overall level of costs in tribunal proceedings as far as is practicable: Stonnington City Council v Blue Emporium Pty Ltd [2004] VCAT 1441 at [13].
The University submitted that the following 'special circumstances' justified an award of costs: 1. abandoning seven of the eight grounds of appeal two days before the hearing; s 60(3)(a) 2. requesting leave to amend the Notice of Appeal by adding eight further grounds of appeal two days before the hearing; and (s 60(3)(a) 3. the fact that the appeal is totally lacking in merit (s 60(3)(c).
We note that the Tribunal recently decided that Ms Choi should pay the University's costs of the proceedings under appeal: Choi v University of Technology Sydney [2020] NSWCATAD 22 (20 January 2020). In that decision, the Tribunal concluded at [23] that: 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.
In summary, the Tribunal acknowledged that Ms Choi had a genuine sense of grievance but found that she is not thinking rationally and that her application was untenable.
Our focus is on Ms Choi's appeal and whether she should have to pay the University's costs. We have dismissed the appeal because we have not been able to identify a question of law or a reason to give permission to appeal on a question other than a question of law. As we have explained, even if we accepted her submissions, it would not have made any difference to the Tribunal's decision. In that sense, her appeal was weak. That is one of the matters to which the Tribunal may have regard in determining whether to award costs: NCAT Act, s 60(3)(c). But our finding that the appeal was weak does not necessarily mean that we must award costs against Ms Choi. We may award costs, or we may decide not to award costs. In legal terms, we have a discretion.
The second basis for the University's costs application was that Ms Choi had conducted the proceedings in a way that unnecessarily disadvantaged them by amending her grounds of appeal two days before the hearing. Ms Choi's response was to submit that the University was responsible for her not being able to amend her appeal until that time. We do not accept that submission. Ms Choi could have requested the recording of the case conference at any time.
She also submitted that the 6 February 2018 letter from the University to the Information Commission was missing from the University's bundle of the material filed before the Tribunal. In addition, Ms Choi claims that she did not include a GIPA application form in her application to the Tribunal for administrative review, even though the University included it in the bundle. Neither of these matters, even if proved, explain her delay in amending the application.
The University was not directed to provide written submissions in response to Ms Choi's late application to amend. Their legal representative gave oral submissions about those amended grounds at the hearing. There were, no doubt, extra costs incurred in preparing that oral response at a very late stage. There were also costs wasted in responding to many of Ms Choi's earlier grounds of appeal. Ms Choi's conduct in asking to amend her appeal so late unnecessarily disadvantaged the University: NCAT Act, s 60(3)(a). Again, that finding does not necessarily mean that we must award costs against her.
We agree with the Victorian Civil and Administrative Tribunal in 1IQ Pty Ltd v Delaney Associates Pty Ltd [2011] VCAT 2056 at [30] that: Generally speaking, I say that it is important that would-be applicants are not deterred from airing genuine grievances and making genuine claims, by the fear that the Tribunal will award costs against them if they lose, particularly if they lose because they have made a legal mistake
We also agree with the qualification to that proposition expressed by VCAT in the following paragraph: On the other hand, the right to air a grievance and make a claim needs to be exercised responsibly. It would be unfair to respondents for the Tribunal to permit applicants to think that they can, with impunity, pursue any claim that they have a mind to make.
We accept that Ms Choi's grievance is genuine even though she appeared to misunderstand many of the things that the Information Commissioner, the Tribunal at the case conference and the Tribunal in the substantive proceedings had told her. She did not appear to understand that the Tribunal only had power to review the University's invalidity decision and the not held decision. She did not appear to understand that confining her appeal to the invalidity decision meant that the issue of whether the University held the information did not arise. She thought that the evidence about the phone call would mean that the Tribunal would give her access to the information. And she thought that she could appeal about things that happened at the case conference.
It is difficult to determine whether Ms Choi misunderstood some or all these things or whether she is intent on litigating regardless of the merits of her claims. On this occasion, we accept that her misunderstandings are genuine. We take account of the fact that Ms Choi is self-represented, that her first language is not English and that she is participating in oral hearings by phone. In all the circumstances, we have decided not to award costs against her.

Orders 1. The appeal is dismissed. 2. The Respondent's application for costs is refused.

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: 04 February 2020

Civil and Administrative Tribunal Regulation 2013(NSW)

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