Choi v University of Technology Sydney (No 2)

1. [1]

   THE COURT: Before this Court is an application for leave to appeal brought by Ms Jae Hee Choi (Ms Choi) from a decision by the Appeal Panel (the Appeal Panel) of the NSW Civil and Administrative Tribunal (the Tribunal) on 4 February 2020: see Choi v University of Technology Sydney [2020] NSWCATAP 18 (the primary judgment).

2. [2]

   The Appeal Panel dismissed an appeal brought by Ms Choi from a decision of the Tribunal, dismissing her application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), on the basis that it was frivolous, vexatious, misconceived and lacking in substance.

3. [3]

   Ms Choi, who presently lives in South Korea, filed written submissions in support of her application. She also sought an adjournment of the hearing of her application for leave to appeal but this was refused: see Choi v University of Technology Sydney (No 1) [2020] NSWCA 341. Ms Choi did not participate in the hearing of the application, despite having been provided with the telephone and AVL links which would have facilitated that participation.

4. [4]

   Before turning to a consideration of the arguments on the application for leave to appeal, a brief summary of the history of these proceedings, drawn principally from the judgments in the Tribunal and Appeal Panel, is required.

Background to the proceedings

1. [5]

   Ms Choi was a student at the University of Technology Sydney (UTS) when she claimed that her landlord sexually assaulted her. She complained to the NSW Police, but says that they did not investigate. The reason that she said that they did not investigate was that a police officer had phoned an officer from UTS, who had said that Ms Choi makes up stories.

2. [6]

   On 2 November 2018, pursuant to the GIPA Act, Ms Choi applied to UTS for access to information about a phone call between a police officer at Dee Why police station, and an officer of UTS. The first part of that application was as follows:

3. [7]

   UTS 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). UTS indicated that:

4. [8]

   UTS asked Ms Choi for further details about the information that she was requesting. UTS told Ms Choi that if she wanted to go ahead with the application, she should provide these details.

5. [9]

   On the same day, Ms Choi says that 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 UTS, amending the scope of her application, as follows:

6. [10]

   As outlined by the Appeal Panel at [11], the amended application requested the same information about the phone call and other communications as the original application, but was more specific about dates, and included the names of police officers who may have spoken to an officer of UTS.

7. [11]

   On 11 December 2018, UTS told Ms Choi that it could not find any information that she had requested in the amended application. The formal decision was that UTS 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.

8. [12]

   On 22 January 2019, the Information Commissioner issued two review reports. The first report related to the invalidity decision. As the Appeal Panel outlined at [13], 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, including that “it must include such information as is reasonably necessary to enable the government information applied for to be identified”.

9. [13]

   The Information Commissioner found that the initial application was valid, because it had enough details to allow UTS to identify the information and process the application. The Information Commissioner recommended that UTS accept that the application was valid, and continue to process the application. The Information Commissioner did not consider whether UTS held any of the requested information.

10. [14]

    The Information Commissioner’s second report related to the University’s “not held decision” in response to Ms Choi’s amended application. The Information Commissioner found that there were reasonable grounds to believe that the requested documents existed and were UTS’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 UTS had made for the information. Based on that evidence, the Information Commissioner concluded that UTS had “conducted reasonable searches for the information requested” and that its decision that it did not hold the information was justified.

11. [15]

    On 6 February 2019, UTS wrote to the Information Commissioner advising that it would not be following the recommendation to review the “invalidity decision”, giving the following reason for not doing so:

12. [16]

    On 11 March 2019, Ms 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 a letter dated 6 February 2019 from UTS, in which UTS stated that it would not be conducting an internal review of the invalidity decision.

13. [17]

    Under the heading “grounds for application”, Ms Choi outlined that:

14. [18]

    At a case conference on 16 April 2019, UTS 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 (the dismissal application). Section 109 of the GIPA Act provides that:

15. [19]

    The Tribunal directed the parties to lodge and exchange submissions about the dismissal application. At the case conference, Ms Choi indicated that she wished 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 UTS. Ms Choi did not do so.

16. [20]

    In submissions on appeal to the Appeal Panel, 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”, it not being entirely clear what was meant by this.

The decision of the Tribunal

1. [21]

   The Tribunal appeared to have had some difficulty understanding which decision Ms Choi was asking to be reviewed. The Tribunal noted that “[n]o information had been identified and no recommendations for release had been made by the Information Commissioner”: at [23].

2. [22]

   Initially the Tribunal and UTS 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.

3. [23]

   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 decision of the Appeal Panel

1. [24]

   On appeal, Ms Choi said that the Appeal Panel should accept new evidence, namely a transcript of a phone call between herself and 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. The Appeal Panel held that it would not admit this evidence, because it would have made no difference to the Tribunal’s decision: at [4].

2. [25]

   Ms Choi also said that the 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. The Appeal Panel held that what happened at the case conference in April 2019 was not relevant to any issue on appeal, as Ms Choi had not appealed from any of the directions of the Tribunal made at the case conference: at [5].

3. [26]

   In any event, in relation to the case conference, the Appeal Panel said at [36]-[37] that:

4. [27]

   The Appeal Panel concluded at [39] that:

5. [28]

   At [45], the Appeal Panel repeated that it was not able to identify a question of law or a reason to give permission to appeal on a question other than a question of law. The Appeal Panel held that, even if it had accepted Ms Choi’s submissions, it would not have made any difference to the Tribunal’s decision, and in that sense her appeal was “weak”: at [45].

6. [29]

   With respect to the issue of costs, at [51]-[52], the Appeal Panel outlined that:

Grounds of appeal and Ms Choi’s submissions

1. [30]

   By her draft notice of appeal filed 31 July 2020, Ms Choi advances two grounds of appeal:

2. [31]

   However, Ms Choi added written submissions to her draft notice of appeal (in addition to a separate Summary of Argument (SOA) also filed on 31 July 2020), in which she appears to advance a further four grounds of appeal:

   1. (1)

      Ground 1 – “NCAT wrongly exercised administrative jurisdiction”;

   2. (2)

      Ground 2 – “Denial of procedural fairness to cause federal jurisdiction”;

   3. (3)

      Ground 3 – “(1) The inconsistent and ambiguous order (2) federal judicial power”; and

   4. (4)

      Ground 4 – “NCAT has not revoked the GAL decision”. Under this ground, Ms Choi submitted that “the judgment of NCAT should be void”.

3. [32]

   Ms Choi’s SOA filed 31 July 2020 in turn sought to raise further or related grounds of appeal, as follows:

   1. (1)

      that the proceedings at first instance and the appeal before the Appeal Panel miscarried because a guardian ad litem (GAL) should have been appointed: see SOA paras 14-15. The basis of this contention is that, in other proceedings in 2018, Deputy President Hennessy (a member of the Appeal Panel) appointed a GAL for Ms Choi. These proceedings were ultimately settled (see CEU v University of Technology Sydney [2020] NSWCATAP 37);

   2. (2)

      that the Tribunal erred in finding that it lacked power to review UTS’s decision not to follow recommendations of the Information Commissioner, and was asked to review only the invalidity decision, and that the Appeal Panel erred in upholding that finding: see SOA paras 16-20;

   3. (3)

      that the Appeal Panel erred in holding that Ms Choi’s claims in relation to the case conference in April 2019 made no difference to the Tribunal’s decision: see SOA paras 22-23;

   4. (4)

      that there was a denial of procedural fairness: see SOA paras 24-31 and 37-39.

4. [33]

   Ms Choi submitted that leave to appeal should be granted, as she submitted that “the Court already established the principles regarding NCAT’s jurisdictional errors in Burns v Corvett [sic]”, that it involves a matter of “public importance” as there are “spectacular absurdities in NCAT”, and that the “degree of injustice” suffered by Ms Choi as a consequence of the judgment of NCAT is “huge”.

5. [34]

   The reference to “Burns v Corvett” was presumably a reference to this Court’s decision in Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3 (Burns v Corbett) or, alternatively, the High Court’s decision in that matter (see Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15) which concerned NCAT’s jurisdiction to entertain a dispute in federal diversity jurisdiction. That decision has no relevance to the present proceedings or to Ms Choi’s position.

Submissions by UTS

1. [35]

   With respect to her submissions as to a lack of GAL, UTS submitted that the appointment of a GAL under s 45(4) of the Civil and Administrative Tribunal Act 2013 (NSW) is a discretionary decision, and that there is no specific jurisdictional fact which must be found in order to make an appointment, referring to CEU v University of Technology Sydney [2018] NSWCATAD 185 at [8]-[13]. UTS further submitted that there is no jurisdictional requirement, in the sense that the lack of a GAL does not preclude the Tribunal from dealing with the proceedings.

2. [36]

   With respect to Ms Choi’s submission as identified at [32(2)] above, UTS submitted that the outcome of a review by the Information Commissioner was a “recommendation”, which did not bind UTS nor the Tribunal. UTS submitted that “[t]here is simply no right to seek review of a decision of the IPC in the Tribunal. Nor is the decision of an agency to decline to follow a recommendation of the IPC a ‘reviewable decision’: see GIPAA s 80”. UTS submitted that the Appeal Panel was correct to state (at [25]) that the Tribunal had no power to review UTS’s decision in February 2019 not to follow the Information Commissioner’s recommendation in relation to the invalidity decision.

3. [37]

   In relation to the case conference in April 2019, UTS submitted that the Appeal Panel did not err in its finding at [37] that Ms Choi’s argument made no difference to the Tribunal’s ultimate decision. UTS submitted that the timetable orders made at the case conference did not prejudice Ms Choi at all.

4. [38]

   In relation to the procedural fairness argument, UTS submitted that Ms Choi’s making of a “serious complaint” against Deputy President Hennessy was not made in connection with a proceeding the subject-matter of the appeal to the Appeal Panel, and there was no reason to think that the Deputy President did not bring an open mind to her participation in the appeal. UTS further submitted that the Appeal Panel received Ms Choi’s submissions, allowed her more time when she sought it, and permitted her to amend her grounds of appeal two days before the hearing: see at [46]-[48] of the Appeal Panel’s decision.

5. [39]

   UTS submitted that leave to appeal should be refused, as:

Consideration

1. [40]

   As has regularly been pointed out in decisions of this Court, 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].

2. [41]

   None of these criteria is established in the present case. Further, Ms Choi’s submissions are in large measure incoherent or misconceived. Reference has already been made to the misguided attempt to raise an argument by reference to Burns v Corbett. Further, why Ms Choi would seek to challenge the jurisdiction of the Tribunal in circumstances where she had invoked it in the first place is not apparent. It would be perverse to entertain her application for leave to appeal based on a challenge to the Tribunal’s jurisdiction in such circumstances.

3. [42]

   Much the same point can be made with respect to Ms Choi’s contention that a GAL should have been appointed and that the decision of the Appeal Panel “should be void” on this account: see [31(4)] above.

4. [43]

   As to the claim that there was a denial of procedural fairness, this complaint appears to relate to what transpired at the case conference rather than at the hearing before the Tribunal or the Appeal Panel. As to what occurred at the case conference, there is no reason to doubt the correctness of the Appeal Panel’s assessment which has been reproduced at [26] above.

5. [44]

   As to the assertion that the “Tribunal based the Decision on findings in respect of which there were inadequate reasons or which it failed to take into account relevant material”, the assertions contained in this ground of appeal are not supported by either the decision of the Tribunal or the Appeal Panel.

6. [45]

   In all of the above circumstances, the application for leave to appeal should be dismissed with costs.