Choi v NSW Ombudsman

1. [1]

   THE COURT: There are two applications before the court. By an amended summons filed in the Common Law Division the applicant, Ms Choi, seeks orders by way of judicial review of a decision of an Appeal Panel of the Civil and Administrative Tribunal (“the Tribunal” or “NCAT”) of 9 March 2020 dismissing two internal appeals (Choi v NSW Ombudsman [2020] NSWCATAP 36). The amended summons for judicial review was removed to this Court by order of Wright J of 17 July 2020.

2. [2]

   By summons filed in this Court on 24 August 2020 Ms Choi seeks leave to appeal from the decision of the Appeal Panel. Pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the Act”), the appeal lies to this Court only on a question of law and only with leave.

Appointment of a guardian ad litem in two proceedings

1. [3]

   The first decision of the Tribunal which was the subject of the internal appeal to the Appeal Panel was a decision of Hennessey LCM, Deputy President, of 19 October 2018 in two proceedings that Ms Choi had brought against the respondent, the NSW Ombudsman.

2. [4]

   On 24 July 2018 Ms Choi had applied to the Tribunal for the review of a decision made by the NSW Ombudsman refusing her application for a request for government information made pursuant to s 41 of the Government Information (Public Access) Act 2009 (NSW). She sought a review of the Ombudsman’s decision that her application for information was invalid. This was the first proceeding against the NSW Ombudsman.

3. [5]

   The second proceeding was a complaint by Ms Choi in relation to the refusal by the President of the Anti-Discrimination Board to refer a complaint by her to the Tribunal. It appears from the reasons of Deputy President Hennessy that Ms Choi had complained of discrimination and victimisation under the Anti-Discrimination Act 1977 (NSW) about the conduct or decisions of the Ombudsman (Choi v NSW Ombudsman [2018] NSWCATAD 248 at [3] and [4]).

4. [6]

   In her decision of 19 October 2018 Deputy President Hennessy stated that she appointed a guardian ad litem for Ms Choi in each proceeding.

5. [7]

   The proceedings brought by Ms Choi against the NSW Ombudsman arose from and were related to numerous other proceedings she had brought against the University of Technology, Sydney (“UTS”). Deputy President Hennessy appointed a guardian ad litem for Ms Choi in the two proceedings against the NSW Ombudsman based upon her conduct of those proceedings against UTS in which Ms Choi had been unsuccessful, and in respect of which adverse costs orders were made against her in the Tribunal.

6. [8]

   Deputy President Hennessy held that Ms Choi had a disability which meant that she was incapable of representing herself. She was unable to confine her written evidence and submissions to issues in dispute and was intent on proceeding with her claims against the Ombudsman, notwithstanding that she understood she was unlikely to succeed, but in the hope of convincing Parliament to change the law (at [34]-[40]). The orders made by Hennessy LCM, Deputy President, were, relevantly:

Dismissal of proceedings on application of guardian ad litem

1. [9]

   The second decision that was the subject of the internal appeal to the Appeal Panel was that of L Pearson, Principal Member: Choi v NSW Ombudsman [2019] NSWCATAD 10. On 18 December 2018 she made orders dismissing both of Ms Choi’s proceedings against the NSW Ombudsman pursuant to s 55(1)(a) of the Act. Section 55(1)(a) provides:

2. [10]

   After referring to the reasons given by Deputy President Hennessy for appointing a guardian ad litem to act for Ms Choi in both proceedings, Principal Member Pearson recorded:

3. [11]

   Principal Member Pearson recorded that Mr Hoyles had explained his reasons as to why he was satisfied that both applications lacked merit and stated that he was concerned that the continuation of the proceedings was adversely impacting on Ms Choi’s mental health.

4. [12]

   Principal Member Pearson recorded:

Appeal to Appeal Panel

1. [13]

   As recorded in the reasons of the Appeal Panel of 9 March 2020 the first of the grounds of Ms Choi’s appeal to the Appeal Panel against the decision of Principal Member Pearson was that:

2. [14]

   It appears that the respondent accepted this but contended that this was no error. The Appeal Panel said:

3. [15]

   The Appeal Panel also recorded:

4. [16]

   Ms Choi also challenged the merits of Mr Hoyles’ decision to withdraw her proceedings. The Appeal Panel contented itself with saying that it agreed with the respondent’s submissions that no error of law in the orders of Principal Member Pearson had been identified (at [24] and [25]).

5. [17]

   In relation to the appeal by Ms Choi from the orders of Deputy President Hennessy, the Appeal Panel said:

Oral Hearing in this court

1. [18]

   Ms Choi prepared lengthy written submissions. She attended the oral hearing by audio visual link to Korea. The oral hearing had to be discontinued. Ms Choi’s spoken English is imperfect. There was no interpreter. It was impossible to understand what Ms Choi was saying both because of the deficiencies in the audio visual link and the absence of an interpreter.

2. [19]

   We made directions for the filing and service of further written submissions by Ms Choi and the NSW Ombudsman. We invited submissions from the Attorney General on the validity of the purported appointment of Mr Hoyles as guardian ad litem by the Secretary or the Office of General Counsel of the NSW Department of Communities and Justice purportedly pursuant to the order of Hennessy DP. The NSW Ombudsman did not take up the opportunity to provide additional written submissions. The Attorney-General provided helpful written submissions as to the validity of that appointment.

Applications for judicial review

1. [20]

   As noted above, Ms Choi sought judicial review of the decision of the Appeal Panel. At the oral hearing of her application, Ms Choi sought leave to amend her application to seek judicial review of the decisions of Deputy President Hennessy and Senior Member Pearson. Leave to amend was granted.

2. [21]

   Nonetheless, the operative decisions are those of the Appeal Panel dismissing Ms Choi’s appeal from the orders of Deputy President Hennessy and Principal Member Pearson. Relief in the nature of certiorari does not lie where the decision challenged has no continued legal consequences (Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 497 [41]; [2013] HCA 43). Certiorari does not lie to quash a conviction ordered by the Local Court where an appeal against that conviction has been dismissed by an order of the District Court. If certiorari lies it lies only against the order of the District Court because that is the operative order (Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 at 476-477, 478, 483, 487; Dyason v Butterworth [2015] NSWCA 52 at [34]; Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [32]; Firth v Director of Public Prosecutions [2018] NSWCA 78 at [25]; Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335 at [4]; Garde v Dowd [2011] NSWCA 115 at [10]-[11]; Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [85]; Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [52]; Makowski v Legal Profession Admission Board [2020] NSWCA 305 at [26]).

3. [22]

   The operative orders having continued legal consequences are those of the Appeal Panel.

4. [23]

   Section 34(1)(c) of the Civil and Administrative Tribunal Act provides that the Supreme Court may refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be or has been lodged against the decision.

5. [24]

   In the present case Ms Choi seeks leave to appeal on a question of law from the decision of the Appeal Panel (s 83(1)).

6. [25]

   In so far as Ms Choi’s submissions raise questions of law, they can be dealt with on her application for leave to appeal. In so far as they do not raise a question of law, they could not provide a basis for judicial review.

7. [26]

   Accordingly, Ms Choi’s summons for judicial review should be dismissed and attention given to her summons for leave to appeal.

Summons for leave to appeal

1. [27]

   Ms Choi seeks leave to appeal to this Court against the dismissal of each of her internal appeals to the Appeal Panel. Ms Choi’s summons seeking leave to appeal asks that this Court answer “the following questions”, including whether “the Tribunal [had] jurisdiction to hear and determine the matters on 18 December 2018 ... without appointing a guardian ad litem” pursuant to the orders of Deputy President Hennessy and whether Mr Hoyles’ decision to withdraw her applications was invalid “because Mr Hoyles was not appointed pursuant to the decision by Hennessy ADCJ in Choi v NSW Ombudsman [2018] NSWCATAD 248”. Her draft notice of appeal states 12 proposed grounds of appeal. Ground 4, in terms directed to the dismissal of her appeal against the decision of Deputy President Hennessy, is that “Hennessy ADCJ did not determine to appoint a GAL in the meaning of s45(4) of the NCAT Act.” Taken together, it is clear that Ms Choi contends the Appeal Panel erred in concluding that Mr Hoyles was validly appointed and, consequently, in dismissing her appeal against the decision of Principal Member Pearson.

2. [28]

   Before the Appeal Panel and before this court Ms Choi also challenged the merits of Deputy President Hennessy’s finding that a person should be appointed as a guardian ad litem for her in her proceedings against the NSW Ombudsman. Deputy President Hennessey’s reasons for doing so are briefly summarised above (at [9]). That challenge does not raise a question of law.

3. [29]

   The Appeal Panel summarised Ms Choi’s grounds of appeal in relation to the finding of Deputy President Hennessy of 19 October 2018 as follows:

4. [30]

   The Appeal Panel held that by these grounds Ms Choi had not identified any error of law. That conclusion is correct. There was ample evidence before Deputy President Hennessy that Ms Choi suffered from a disability and incapacity to represent herself and that it was appropriate to appoint a person as guardian ad litem.

5. [31]

   The Appeal Panel concluded that there were no circumstances to justify the grant of leave to appeal. That was a discretionary decision. The only arguable question of law which arises from the Appeal Panel’s decision is whether the Appeal Panel provided sufficient reasons for its decision. No extended reasons are required for a refusal to grant leave to appeal. The Appeal Panel accepted the submissions of the respondent (the Ombudsman) as to why leave should not be granted. Those submissions were that Ms Choi had not identified any error of law or any new medical or other material that would provide grounds on which to appeal. There was no general issue of principle, question of public importance or matter of general administration or policy of general application that would warrant the granting of leave. There was no reasonably clear injustice. The Appeal Panel’s reasons for refusing leave to appeal from Deputy President Hennessy’s decision that “a person” should be appointed as Ms Choi’s guardian ad litem were adequate. In any event, Ms Choi has not demonstrated any error in Deputy President Hennessy’s reasoning or conclusion that a person should be appointed as Ms Choi’s guardian ad litem.

6. [32]

   Ms Choi submitted that the Tribunal had no jurisdiction to appoint a guardian ad litem for her because in doing so the Tribunal purportedly exercised federal judicial power contrary to Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15. This argument was based on the incorrect premise that where s 75(iv) of the Constitution confers federal jurisdiction on the High Court in matters between residents of different “States”, that included the conferral of jurisdiction between the resident of a State and the resident of a foreign state. Ms Choi deposed that she was a resident of South Korea. But in the Constitution “the States” do not include foreign states. “States” refer to those colonies or territories referred to in s 6 of the Constitution as being parts of the Commonwealth or which are admitted into or established by the Commonwealth as States. Ms Choi’s argument is misconceived.

7. [33]

   It is unnecessary to consider whether her applications would have involved the exercise of judicial power. The applications were not included in the materials provided to this court. In any event, if her argument were correct, it would mean that her applications to the Tribunal would have been incompetent. In Choi v University of Technology Sydney (No 3) [2020] NSWCA 343 Bell P and Emmett AJA also rejected this argument (at [44]-[45]).

Validity of appointment of Mr Hoyles as guardian ad litem

1. [34]

   Section 45 of the Act relevantly provides:

2. [35]

   Regulation 10 of the Civil and Administrative Tribunal Regulation 2013 (NSW) provides:

3. [36]

   Rule 32 of the Civil and Administrative Tribunal Rules 2014 (NSW) specifies matters to which the Tribunal is to have regard in dealing with an application under s 45 of the Act for leave to be given to a person (other than an Australian legal practitioner) to represent a party to proceedings before the Tribunal and deals with the circumstances in which such leave may be revoked.

4. [37]

   Rule 41 provides that on the direction of the President or a Division Head a registrar may make certain interlocutory decisions on behalf of the Tribunal, including a decision under s 45(4)(a) or (b) concerning the appointment of a person to act as guardian ad litem for a party or to represent a party in proceedings.

5. [38]

   Mr Hoyles was not appointed by a member of the Tribunal, nor by a registrar. On 24 October 2018 a Ms Skinner sent an email to the Office of General Counsel of the Department of Justice headed “NCAT request for GAL”. Ms Skinner wrote:

6. [39]

   On the following day a Ms Cotterill of the Office of General Counsel advised Ms Skinner that Mr Hoyles’ workload was too heavy and “therefore we are appointing another GAL to the new proceedings.” That person was a Dr Catherine Johnson who was apparently purportedly appointed as guardian ad litem by the Office of General Counsel on 25 October.

7. [40]

   On 7 November 2018 Dr Johnson advised someone, apparently in the Office of General Counsel, that she considered it in Ms Choi’s best interest for there to be one GAL for her matters as the information in the two matters was based on the same set of facts as those in which Mr Hoyles had been appointed as guardian ad litem. Mr Hoyles agreed to accept the appointment as GAL in the two additional matters if that were Ms Cotterill’s preference. On 8 November 2018 Ms Cotterill, writing for the Secretary of the Office of General Counsel, wrote to Mr Hoyles and confirmed his appointment as guardian ad litem for the two proceedings in question. She advised Mr Hoyles that she had “asked the Tribunal to notify the parties of your appointment and to send you a copy of the papers filed in these proceedings.” On 20 December 2018 Ms Cotterill advised Ms Choi that “it was on 8 November 2018 when we appointed Mr Hoyles to proceedings 2018/299612 and 2018/226998 …”.

8. [41]

   The procedure adopted in this case is consistent with the Guidelines issued in August 2017 by NCAT entitled “representatives for people who cannot represent themselves (GALs)”. Paragraph 9 of those Guidelines states:

9. [42]

   The Attorney-General acknowledged that prima facie the language of s 45(4)(a) suggests that the power conferred by that provision on the Tribunal is only validly exercised where the Tribunal (or a Registrar exercising delegated power) makes an order appointing a specified person to act as guardian ad litem for a party in the proceedings. The Attorney submitted that it was arguable that the power could be validly exercised even if the Tribunal did not specify the person who was to act as guardian ad litem so long as that person was identified and took on the role of guardian ad litem by some subsequent process or action.

10. [43]

    Whether or not the alternative construction is arguable, it is not correct.

11. [44]

    The procedures adopted by the Tribunal and the Department of Justice are not compatible with the terms of s 45 of the Act. Section 45(4) and (6) require that the appointment of a person as guardian ad litem be made by the Tribunal. The position taken appears to be that because s 45(4) provides that the Tribunal may appoint “a person” as guardian ad litem, its role is fulfilled by its merely making an order that “a person” be appointed as guardian ad litem. But an order in those terms effects no appointment. It is merely an order in the nature of a declaration that a person should be appointed to act as guardian ad litem for a party. The appointment of “a person” without nominating the person appointed is not an appointment at all.

12. [45]

    This is in accordance with the decision in this court in Mao v AMP Superannuation Ltd [2015] NSWCA 252. Mao concerned the appointment of a tutor to a party who was under legal incapacity. The primary judge made an order that: “(1) Being satisfied that [Ms Mao] is a person under a legal incapacity, orders that a tutor be appointed for [her]”.

13. [46]

    That order was purportedly made pursuant to Rule 7.18(1)(a) of the Uniform Civil Procedure Rules which provides:

14. [47]

    This court held (at [50]) that unless an identified person was appointed as tutor the power under Rule 7.18(1)(a) was not exercised.

15. [48]

    A similar conclusion was reached in Marshall v Fleming [2014] NSWCA 64 in relation to a purported appointment of a referee where the power in UCPR r 20.14 was for the court to “... make orders for reference to a referee appointed by the court for inquiry and report …”. The primary judge ordered that a member of the New York Panel of Referees be appointed to act as a referee to inquire and report on questions of foreign law pursuant to a Memorandum of Understanding between the Chief Justice of New South Wales and the Chief Judge of the State of New York of 28 October 2010. This Court held that it was clear from UCPR r 20.14 that the court must appoint the referee and that appointment could be made only by a judge, or associate judge, or an officer of the court if given delegated power to do so (at [31]).

16. [49]

    This appears to have been recognised by Deputy President Hennessy whose note quoted at [8] above foreshadowed that an order would be made (inferentially by the Tribunal) following the receipt of advice from the Guardian Ad Litem Panel. Deputy President Hennessy evidently contemplated that the Tribunal would appoint a guardian ad litem following the receipt of advice from the Department of Justice as to who should be appointed from the Panel. That did not happen.

17. [50]

    The question is of general public importance. The Attorney submitted that the alternative construction of reading s 45(4)(a) to mean that the Tribunal appoints a person to act as guardian ad litem for a party by making an order for appointment of “a person” without specifying that person, provided the person is identified and confirmed by a subsequent administrative process, is not necessarily precluded either by the decision in Mao or Marshall. I do not agree. Although the provisions in question in both Mao and Marshall were different, the language was relevantly the same. In any event, the language is clear. Mr Hoyles was not appointed by the Tribunal.

18. [51]

    The Attorney submitted that the manner of appointment of Mr Hoyles as guardian ad litem was consistent with the existing practice of the Tribunal and with the practice of the Supreme Court with respect to adoption matters as well as with the practice of the Children’s Court in relation to ss 100 and 101 of the Children and Young Persons (Care and Protection) Act 1998. That may be so, in the case of the Children’s Court and appears to be so in the case of the Supreme Court in adoption matters.

19. [52]

    Sections 123 and 124 of the Adoption Act 2000 (NSW) confer power upon the Supreme Court to appoint a guardian ad litem for a child and for the birth or adoptive parents of a child in adoption proceedings. The language used is that “the Court may appoint a guardian ad litem”. Practice Note SC Eq 13 describes the practice to be adopted: namely, that the court make an order that “a guardian ad litem be appointed and that the guardian be the person nominated by the Secretary of the Department of Justice from the guardian ad litem panel” (para 23).

20. [53]

    The Attorney submitted that this Practice Note provided indirect support for the alternative construction advanced as it demonstrated that the Supreme Court has implemented a similar process for appointments to the practice adopted in the Tribunal.

21. [54]

    However the Practice Note has no precedential status. The practice described in para 23 of the Practice Note SC Eq 13 and in the NCAT Guidelines should be urgently reviewed.

22. [55]

    No doubt the Attorney General will consider whether legislative changes are required.

23. [56]

    Leave should be granted to Ms Choi to appeal from the decision of the Appeal Panel on a question of law namely whether Mr Hoyles was validly appointed as her guardian ad litem. That question should be answered “no”.

24. [57]

    The question then is what orders should follow as a consequence of allowing this ground of appeal.

25. [58]

    The NSW Ombudsman did not submit that this court could allow the appeal but make an order nunc pro tunc appointing Mr Hoyles guardian ad litem for Ms Choi with effect from 8 November 2018. The Ombudsman was right not to have done so. An order for the appointment of a guardian ad litem is not merely a procedural order but affects the affected party’s substantive rights (Emanuele v Australian Securities Commission (1997) 188 CLR 114; [1997] HCA 120).

26. [59]

    As noted above, the orders made by Principal Member Pearson dismissing Ms Choi’s proceedings were made on the basis that Ms Choi’s guardian ad litem had given written notice of withdrawal of her proceedings. No other basis was relied upon for the summary dismissal of the proceedings. As Mr Hoyles was not validly appointed, it follows that the order of the Appeal Panel dismissing the appeal from Principal Member Pearson dismissing Ms Choi’s applications to the Tribunal should be set aside, the appeal allowed and the orders of Principal Member Pearson set aside. The Appeal Panel’s refusal to extend time for appeal was premised on there being no arguable basis for challenging the validity of his appointment ([18] above).

27. [60]

    The orders of Deputy President Hennessy that “a person is appointed as a guardian ad litem for Ms Choi” in the two proceedings should be set aside. An order for the appointment of “a person” as guardian ad litem appoints no-one as a guardian ad litem.

28. [61]

    However, Deputy President Hennessy’s reasoning that culminated in her finding that a guardian ad litem should be appointed has not been shown to be erroneous, and the matter should be remitted to the Tribunal for the purpose of consideration of the appointment of a guardian ad litem for Ms Choi in each proceeding.

29. [62]

    Ms Choi made scurrilous attacks on the Attorney-General, accusing him of interfering with her proceedings. She adduced no evidence of any such interference. Her attacks may have arisen as a result of an email sent by Mr Hoyles to Ms Choi on 30 November 2018 regarding the expiry of Justice Wright’s appointment as NCAT’s inaugural President in October 2018 and his replacement as President of the Tribunal by Justice Armstrong. It is not surprising that his email might have engendered paranoid feelings in Ms Choi. It will be a matter for the Tribunal to determine whether it is appropriate that Mr Hoyles be appointed by it as Ms Choi’s guardian ad litem.

30. [63]

    Ms Choi did not have legal representation but would have incurred expenses. The issues raised in her summons for leave to appeal were the same as those raised in her application for judicial review. The summons for judicial review should be dismissed with no order as to costs. Ms Choi is entitled to her costs from the NSW Ombudsman with respect to her summons for leave to appeal and appeal.

31. [64]

    The appeal was heard and judgment was reserved on 3 February 2021 with the parties having liberty to provide further written submissions. On 12 April 2021, Ms Choi filed a motion seeking orders that various persons – including but not limited to the Attorney-General and Deputy President Hennessy – attend to give evidence and produce documents, and that Wright J be appointed a referee. It is not apparent how the persons named in the motion could give relevant evidence, nor why their evidence should be entertained after judgment has been reserved, nor what issue might be referred to a referee, nor why it should be. Moreover, in light of the conclusion to which this court has come and the orders it will make, it is apparent that given the outcome of the substantive appeal, their evidence, even if relevant, admissible and permitted, could not make any difference to the outcome. Ms Choi’s motion should be dismissed. The Court declined to make any directions for a response to the notice of motion and accordingly, it will have occasioned no costs of significance to the respondent. It is only for this reason that no order for costs is made in respect of it. However, the general costs order in favour of Ms Choi does not include the costs of her motion.

32. [65]

    For these reasons we make the following orders in relation to Ms Choi’s summons for leave to appeal (proceeding 2020/246501):

    1. (1)

       Grant leave to appeal to the applicant on the following question, namely, whether the appointment of Mr Hoyles as guardian ad litem for the applicant in proceedings in the Tribunal numbered 2018/00226998 and 2018/00299612 was valid.

    2. (2)

       Dispense with the requirement for filing a notice of appeal limited to that ground.

    3. (3)

       Allow the appeal.

    4. (4)

       Set aside the orders of the Appeal Panel dismissing Ms Choi’s appeals from orders of Deputy President Hennessy of 19 October 2018 and of Principal Member Pearson of 18 December 2018.

    5. (5)

       In lieu thereof:

    6. (6)

       Dismiss Ms Choi’s notice of motion filed 12 April 2021 with no order as to costs.

    7. (7)

       Order that the respondent pay Ms Choi’s costs of the summons for leave to appeal and the appeal, not including the costs of her notice of motion filed on 12 April 2021.

33. [66]

    In proceeding 2020/104621 (the judicial review proceedings) we make the following order:

    1. (1)

       Order that the amended summons be dismissed with no order as to costs.