Choi v NSW Ombudsman

Case •

[2022] NSWCATAD 292

•

29 August 2022

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Choi v NSW Ombudsman [2022] NSWCATAD 292
Hearing dates: 18 January 2022, 31January 2022 and 3 June 2022
Date of orders: 29 August 2022
Decision date: 29 August 2022
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:

(1) The application to appoint a McKenzie Friend for the applicant is refused.

(2) The respondent’s decision dated 3 August 2018 is valid and is an administratively reviewable decision.

(3) The respondent is to provide the applicant with copies of the attachments to document no 49 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision.

(4) The respondent is to provide the applicant with a copy of document no 81 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision.

(5) The remainder of the documents listed in the respondent’s Further Amended Confidential Schedule of Documents dated 16 February 2022, including document no 49, are “excluded documents” under cl 2 of sch 2 of the GIPA Act.

(6) The respondent’s decision dated 3 August 2018 is otherwise affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – Procedural fairness – Application to appoint a McKenzie Friend – Validity of an instrument of delegation – Jurisdiction – Whether the respondent has power to review the respondent’s decision – Excluded documents under cl 2 sch 2 of the GIPA Act

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)

Court Security Act 2005 (NSW)

Government Information (Information Commissioner) Act 2009 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Interpretation Act 1987 (NSW)

Legal Profession Uniform Law (NSW) (NSW)

Ombudsman Act 1974 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

CEU v Ombudsman [2017] NSWCATAD 267

Capilano Honey Ltd v Dowling [2018] NSWSC 876

CEU v University of Technology Sydney [2017] NSWCATAD 323

Department of Education v Zonnevylle [2020] NSWCATAD 96

Goldfish Potts Point Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 13

McEwan v Port Stephens Council [2021] NSWCATAD 110

McEwan v Port Stephens Council [2022] NSWCATAD 148

McEwan v Port Stephens Council [2018] NSWCATAP 211

McEwan v Port Stephens Council [2017] NSWCATAD 269

McGuirk v Vice-Chancellor, University of New South Wales [2009] NSWADTAP 43

McKenzie v McKenzie [1970] 3 WLR 472; [1970] WLR 472; 3 WLR 472; [1970] 3 All ER 1034; [1971] LRP 33; (1971) 1971 P 33

Pincevic v Nicholas Panos t/as N Panos and Associates [2013] NSWDC 188

REGINA v Michael Kanaan [2003] NSWCCA 190

Webb v Port Stephens Council [2019] NSWCATAD 47

Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 38

Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274

Texts Cited:

None cited

Category:Principal judgment
Parties: Jae Hee Choi (Applicant)
NSW Ombudsman (Respondent)
Representation: Solicitors:
Applicant (Self Represented)
Ms M Smith & Mr Wong (Respondent)
File Number(s): 2018/00226998
Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act (NSW) 2013, the publication or disclosure of the parts of these Reasons marked “[NOT FOR PUBLICATION]”, other than to the respondent {NSW Ombudsman].

REASONS FOR DECISION

Background

  1. These proceedings concern a request that Jae Hee Cho (the applicant) made to the NSW Ombudsman (the respondent) on 14 June 2018 for the release of documents under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act) relating to herself, as follows:

a.   All the correspondences, documents, emails, letters, notes and so on regarding (the applicant) which are kept at Ombudsman NSW since 21 September 2015.

b.   All the All the correspondences, documents, emails, letters, notes and so on regarding (the applicant) among Ombudsman NSW, Ombudsman, NSW Premiere (sic) the Hon Gladys Berejiklian and the Attorney General, Hon Mark Speakman NSW.

c.   All the correspondences, documents, emails, letters, notes and so on regarding (the applicant) between University of Technology Sydney and any staff at Ombudsman NSW.

c.   All the correspondences, documents, emails, letters, notes and so on regarding (the applicant) especially among University of Technology Sydney, Michael Polkinghorne at Ombudsman NSW, John McMillan, Megan Smith at Ombudsman NSW, Michael Conaty at Ombudsman NSW, Maxwell Britton at Ombudsman NSW, Sanya Silver at Ombudsman NSW, Veronica Brogden, Sarah Unwin, Abby B at Ombudsman Commonwealth, Emily Executive Assistant to Helen Fleming, Senior Assistant Ombudsman and Daniel Hill at Ombudsman NSW and Mr Barns at Ombudsman NSW.

  1. On 18 June 2018, the respondent decided that the applicant’s GIPA request was invalid because the information requested was complaints handling and investigative information and was therefore “excluded information” under cl 2 of sch 2 of the GIPA Act.

  2. On 18 June 2018, the applicant applied to the Information & Privacy Commissioner (IPC) for an external review of this decision, on the following grounds:

1.   University of Technology Sydney (UTS) terminated me from Bachelor of Nursing because UTS said I had failed in my July 2016 clinical placement. However, Mr Conaty at Ombudsman NSW said UTS planned to terminate me from Bachelor of Nursing even on 22 September 2015 due to my disability, which seems to be recorded in the note kept in Ombudsman NSW. Hence, the information I am trying to access would be used as evidence in the NCAT proceedings against UTS (NCAT file number 2017/211860, CEU v University of Technology Sydney [2017] NSWCATAD 323) which is currently being proceeded (redacted section follows).

2. Senior Member Ludlow at NCAT states that Ombudsman NSW disclosed my identity to UTS by breaching section 18 of the Privacy and Personal Information Protection Act 1998 in the CEU v University of Technology Sydney [2017] NSWCATAD 267.

3.   Principal Member Titterton at NCAT states “On 8 October 2015, Mr Conaty wrote to the applicant and informed her that, as UTS was responding in a satisfactory way to the matters she had raised, he would now close the Ombudsman’s file” at [20] in CEU v University of Technology Sydney [2017] NSWCATAD 13.

4.   Mr Conaty told me in the meeting on 4 October 2016, the “UTS satisfactory response” was UTS’ plan to terminate me from Bachelor of Nursing.

5.   Ombudsman NSW’s managers as well as Ombudsman NSW, refused to give me a proper feedback of my complaint. NSW Premier the Hon. Gladys Berejiklian and the Attorney General the Hon. Mark Speakman SC MP refused to Mr Conaty’s legal statement on 14 December 2017 and 24 January 2018 (Annexure A, B and C).

6.   My matters are grabbing international attention (Annexure D).

7.   Ombudsman NSW is called as a watch dog whose transparency is significant. It must be the public interest to disclose the information.

8.   I believe that Information Privacy Commissioner is the agency who could allow me to access to my information. In doing so, you would be able to enhance the justice in Australia and save Australia from being stigmatised as a country of discrimination.

  1. On 19 July 2018, the IPC issued a Review Report under the GIPA Act and determined that it had jurisdiction to review the decision under s 89 of the GIPA Act and that the respondent’s decision was a reviewable decision for the purposes of s 80(c) of the GIPA Act.

  2. The IPC determined that while some of the withheld information related to the respondent’s complaints handling function, including information relating to its handling of a complaint against the University of Technology Sydney (UTS), it was not all “excluded information” as some of it related to other functions of the respondent that are not listed in sch 2 of the GIPA Act. Accordingly, under s 93 of the GIPA Act, it recommended that the respondent should make a new decision by way of internal review and advise the applicant and itself within 10 working days of the actions to be taken in response to the recommendation.

  3. On 24 July 2018, the applicant applied to the Tribunal for administrative review of the IPC’s decision dated 19 July 2018, on the following grounds:

(1)   On 19 July 2018, the IPC determined its decision; “Ombudsman NSW is recommended to release “some information” which is not “the excluded information”

(2) I request the Tribunal to order Ombudsman NSW to affirm the IPC’s decision so that the Ombudsman would release the “some information” which is not “the excluded information. However, I believe that Ombudsman NSW must disclose “the excluded information” under section 12 of the GIPA Act “identify the relevant public interest considerations in favour of disclosure; revealing or substantiating that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct” as well.

Procedural history

  1. The matter has a lengthy procedural history, which is summarised below.

  2. On 15 October 2018, Deputy President Hennessy LCM conducted a hearing in relation to this matter and other proceedings that the applicant commenced against the respondent under the Anti-Discrimination Act 1977 (NSW) (matter 2018/00299612), to determine whether the Tribunal should appoint a guardian ad litem (GAL).

  3. The applicant opposed the appointment of a GAL and she stated that the person appointed as her GAL in the previous proceedings (x 4) should not waste his time representing her because: (1) he must focus on the proceedings against UTS and “he is not a superman;” (2) her claims will not be successful and the Tribunal will make a costs order; (3) her aim in the GIPA proceedings against the NSW Ombudsman is to influence government to amend s 43(1) of the GIPA Act which states that, “An access application cannot be made to an agency for access to excluded information of the agency;” (4) she will probably not even be given permission for her disability discrimination complaint to go ahead but the Tribunal may give her permission for her victimisation complaint to go ahead; and (5) she is “not that sensitive about the Tribunal’s costs orders any more” because she has “nothing to lose.”

  4. Hennessy DP was satisfied that the applicant had a disability which meant that she was incapable of representing herself in all her proceedings and she appointed a GAL.

  5. On 4 December 20218, Senior Member Montgomery conducted a directions hearing, during which Mr Bill Hoyles appeared as GAL for the applicant. The Senior Member noted that the GAL had applied for legal aid and that the IPC appeared and has a right to be heard but is not a party to the proceedings. He listed the matter for further directions on 18 December 2018.

  6. On 17 December 2018, Mr Hoyles withdrew the applicant’s four matters and requested that they be dismissed, as it was his belief that this was in the applicant’s best interests. The matters were listed for hearing on 18 December 2018 to determine whether they should be withdrawn and dismissed.

  7. However, on 17 December 2018, the applicant asked the Tribunal “to reverse” Hennessy DP’s decision and to “postpone the two hearings listed on 18 December 2018”.

  8. On 18 December 2018, Principal Member Pearson conducted a hearing at which Mr Hoyles appeared for the applicant, Ms Smith appeared for the respondent and the applicant also appeared in person. The applicant said that she wanted to delay the hearing because she had asked ICAC to investigate “corrupt conduct by Mr Hoyles, UTS and the respondent” and she argued that the Tribunal should not make any decision until ICAC had made its decision. However, the Principal Member did not postpone the hearing and she made orders dismissing this matter under s 55(1)(a) of the NCAT Act.

  9. The Principal Member published written reasons for her decision, in which she noted that the applicant had not internally appealed Hennessy DP’s decision, and she stated, relevantly:

Mr Hoyles provided a written report outlining his reasons for the decision to withdraw the applications, including a summary of the views of Ms Choi. In that report, Mr Hoyles explains his consideration of each of the applications to the Tribunal, and his reasons as to why he is satisfied that those applications lack merit. He states that he is concerned that the continuation of the proceedings is adversely impacting on Ms Choi’s mental health. He notes that Ms Choi disagrees with his decision, stating:

Ms Choi believes that I am a liar and that I and others have been corruptly influenced by the NSW Attorney General and/or the NSW Department of Justice and/or Legal Aid NSW, and/or the NSW Ombudsman and/or the President of NCAT to have these matters dismissed.

  1. The Principal Member noted that Mr Hoyles had given written notice of his withdrawal as GAL, and she held that she was satisfied that he had acted in the applicant’s best interests. She concurred with Mr Hoyles’ view that it was not in the applicant’s best interests for the matter to continue and she dismissed it.

  2. The applicant appealed to the Appeal Panel on the following grounds:

1.   The Tribunal did not appoint Mr Hoyles as GAL pursuant to the order made on 19 October 2018. However, the Member relied on the decision of Mr Hoyles in making the orders recorded in the Decision.

2.   Mr Hoyles did not act in a way which was in her best interests.

3.   The Tribunal relied upon Mr Hoyles’ “baseless legal opinion”.

4.   The Tribunal failed to take account of her interests by relying upon the “baseless psychological opinion” of Mr Hoyles that continuing the proceedings would impact upon her mental health negatively.

5.   There was no evidence that her decision to raise an issue of alleged corruption in the Attorney General’s Office and in the University of Technology Sydney (UTS) was the result of the impact of continuing these proceedings on her mental health.

6.   The Tribunal rejected her applications made on 6 and 14 December 2018 to “reverse” the decision to appoint a GAL and, as a consequence, she was unable to represent herself.

  1. On 9 March 2020, the Appeal Panel dismissed the appeal and the applicant then appealed to the Court of Appeal and challenged the validity of Mr Hoyles’ appointment as her GAL.

  2. On 23 April 2021, the Court of Appeal (Meagher, White & Brereton JJA) upheld the appeal in part. The Court held that an appointment of “a person” as a GAL, without nominating the person appointed, is not an appointment in accordance with s 45 of the Act. Therefore, Mr Hoyles was not validly appointed as the GAL in the two proceedings in question and because the Appeal Panel’s decision in was premised on the view that there was no arguable basis for challenging the validity of Mr Hoyle’s appointment, the appeal must be allowed.

  3. However, the Court held that the appellant could not demonstrate any error in Hennessy DP’s reasoning that a person should be appointed as her GAL and there was ample evidence of her incapacity to represent herself. Accordingly, the Court remitted the matter to the Tribunal for consideration of the appointment of a GAL.

  4. Upon remitter, Senior Member Montgomery conducted a directions hearing on 26 May 2021. He ordered the respondent to file and serve a notice of appearance by 16 May 2021. He ordered the applicant to file and serve evidence, submissions and statements in relation to the issue of whether the Tribunal should appoint a GAL by 25 June 2021. He ordered the respondent to file and serve any material in reply by 9 July 2021, and he ordered the applicant to file and serve any material in response by 16 July 2021. He listed the matter for hearing of the GAL issue on 26 July 2021.

  5. On 26 July 2021, Montgomery SM made an order under s 64(1)(c) of the NCAT Act, prohibiting the publication of evidence given before it. He refused to appoint a GAL for the applicant and listed the matter for directions on 17 August 2021.

  6. On 17 August 2021, Senior Member Ransome vacated the directions hearing because the Tribunal’s VMR system was not working properly and the applicant could not be contacted. She ordered the respondent to file and serve a further copy of the documents released to the applicant following the IPC’s recommendation by 15 September 2021 and she ordered the applicant to advise the Tribunal by 15 October 2021 whether she was continuing with her application or withdrawing it. She listed the matter for directions hearing on 19 October 2021.

  7. On 21 October 2021, Ransome SM issued amended orders, which also required the respondent to file and serve a chronology of events in relation to the access application by 2 November 2021. She listed the matter for further directions on 9 November 2021.

  8. On 9 November 2021, Ransome SM ordered the respondent to file and serve all open evidence and submissions, including a schedule of documents released to the applicant in response to her access application and documents withheld, by 7 December 2021. She also ordered the respondent to file and serve all confidential evidence and submissions (marked “Confidential”) by that date. She directed the applicant to file and serve evidence and submissions by 11 January 2022 and she listed the matter for hearing on 31 January 2022.

  9. The matter came before me for directions on 18 January 2022. The applicant appeared in person and Ms M Smith appeared for the respondent. The IPC did not appear.

  10. This directions hearing lasted approximately 2 hours and proceeded much like a preliminary hearing, during which the applicant complained that the respondent had not provided her with any documents until 7 January 2022, because those sent to her on 3 August 2018 were in “.zip” format and her computer could not open them. However, Ms Smith stated that the same documents were re-sent to the applicant with a covering letter dated 6 August 2018, and those documents are identical to those which were re-sent to her on 7 January 2022.

  11. Ms Smith agreed to an extension of time for the applicant to file her submissions, but she stated that the respondent opposed the hearing date being vacated.

  12. The Tribunal ordered the respondent to serve a schedule of documents in PDF upon the applicant by 19 January 2022. It ordered the applicant is to file and serve any further evidence and submissions by 27 January 2022 and confirmed the hearing date of 31 January 2022.

  13. The Tribunal observed, based on the documents before it, that the issue in dispute was whether the information that was withheld by the respondent on 3 August 2018 was “excluded information” under sch 2 of the GIPA Act. Therefore, it decided that on 31 January 2022, it would conduct a confidential hearing to determine this issue, as required by the GIPA Act, and it advised the applicant that she would not be involved in the confidential hearing.

  14. However, the applicant immediately complained that these orders were “unfair”. The Tribunal noted that the applicant said that she received the documents on 7 January 2022, but she responded, “You are in the wrong”.

  15. The Tribunal advised the applicant that if she wished to raise any further issues on 31 January 2022, she must notify it and the respondent of those matters and they could then be dealt with at the hearing. If the Tribunal needed to adjourn the hearing on a part-heard basis in order to properly determine all of the issues it would do so.

  16. However, the applicant continued to complain that the Tribunal’s orders were unfair because she is a single mother, and she has to work, and she also said that she “will go to the Court of Appeal and the High Court of Australia.”

  17. The directions hearing then ended.

Further applications made by the applicant

  1. The applicant subsequently sent numerous emails and “applications” to the Tribunal in which she took issue with the orders made on 18 January 2022, and she sought to raise further “matters”.

  2. In her email dated 19 January 2022, the applicant asserted that there was “an obvious error in law, procedural irregularity, bias and judicial misconduct” in the orders made on 18 January 2022. She alleged that the Tribunal said that it would order the respondent “to give to the Tribunal and the other party a pdf format Notice of Decision including Schedule of document in response to my access application,” but it did not order the respondent to file and serve a notice of decision. She asked for the orders to be amended “as soon as possible.”

  3. On 21 January 2022, the Tribunal amended its orders dated 18 January 2022, in order to allow the applicant to file and serve any material in reply by 28 January 2022, but it otherwise confirmed the orders made on 18 January 2022.

  4. The applicant then sent an email to the Tribunal requesting a further extension of time to file and serve any material in reply. An extension was granted to 29 January 2022.

  5. On 27 January 2022 at 2:36am, the applicant lodged an “Application to Set Aside or Vary Tribunal Decision” by email, which sought to vary the orders dated 21 January 2022 as follows:

1.   The respondent is to file and serve a reviewable decision by way of internal review in response to the applicant’s access application with the Government Information (Public Access) Act 2009 (GIPA).

2.   The Tribunal revokes order 1, 2 and 3 dated 21 January 2022.

3.   The applicant is to give to the Tribunal and other party any material in reply 4 weeks after the respondent’s notice of decision.

4.   The respondent replies.

5.   The applicant replies.

6.   The Tribunal accepts an audio telephone recording file of the conversation between Mr Conaty at NSW Ombudsman and me at the YouTube as evidence.

7.   The Tribunal accepts the applicant’s assertions in complying with order 3.

8. The Tribunal grant leave for the applicant to file the applications under s 116, s 117, s 118 and s 120 under the GIPA Act, an application under s 12(2)(e) of the GIPA Act and s 112 of the GIPA Act.

9. The hearing is adjourned until the Tribunal ensures that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings under s 38(6)(a) of the Civil and Administrative Tribunal Act 2013 No 2 (NCAT Act).

10. The Tribunal refers a question of law to the Supreme Court for the option under s 54 of the NCAT Act.

(1)   Whether or not the Tribunal has power to order the respondent to make a new decision by way of internal review before the hearing.

(2) Whether or not the respondent determined my access application which the GIPA Act requires.

(3)   Whether or not the review application confers the Tribunal to divide non-excluded information from excluded information.

(4)   Whether or not I am entitled to submit an audio recording as evidence.

(5)   Whether I should request for leave to raise new assertions in these circumstances where I realised there is more information possessed by the respondent on 11 January 2022 and the respondent submitted a schedule of documents which is faulty (there is no determination, fully released or partly released).

Objection to jurisdiction

  1. In her submissions in support of the application lodged on 27 January 2022, the applicant raised an objection to the Tribunal’s jurisdiction to determine the current application for administrative review. She asserted that the respondent had not yet determined her access application under the GIPA Act and that the Tribunal has no jurisdiction to review the IPC’s decision (which found that some of the withheld information is not “excluded information”). She stated that the Tribunal has power to review the respondent’s “invalid” decision dated 18 June 2018 and that the decision dated 3 August 2018 is not an administratively reviewable decision because it was made by a legal representative (Ms Smith). Therefore, “what Senior Member Riordan plans at the hearing cannot be enhanced.”

  2. In the alternative, the applicant argued that if the respondent’s new decision dated 3 August 2018 was made by an administrator under s 84(2) of the GIPA Act, it is reviewable under s 80(c) as a “deemed refusal decision” within the meaning of s 108(1) of the GIPA Act. However, she repeated her demand that the respondent should determine her access application and make a new decision by way of internal review under the GIPA Act as soon as possible, after which the matter could be listed for hearing.

  3. The applicant also complained about the respondent’s late compliance with Ransome SM’s orders dated 9 November 2021 and that the Tribunal had “rejected an audio telephone recording of the conversation between Mr Conaty at NSW Ombudsman and me as evidence”. She argued that this was “an error of law because ss 38(2) and (4) of the NCAT Act allows her to file and serve an audio recording file as evidence “especially in circumstances where I have little time due to the respondent’s breach of the order 1 dated 9 November 2021 (month late submissions on 7 January 2022).”

  4. The applicant also took issue with the Tribunal stating, during the directions hearing on January 2022, that her claiming that the respondent had failed to conduct “a reasonable search” was “a new matter”. She said that she “needs to apply for an application to issue a summons to Mr Conaty” and that the Tribunal should adjourn the hearing and she concluded, relevantly:

25. On 11 January 2022, I realised that the respondent has refused to make a new decision by way of internal review since June 2018. Without determining my application under the GIPA Act, the respondent released the 193 pages and a schedule of documents regardless of the GIPA Act. Further the respondent omitted the new decision dated 6 August 2018.

26.   The respondent’s index shows that there are records about UTS’ action to take and my mental disorders, causing the respondent to reject my complaints are not provided.

27. The respondent’s conduct is an offence under s 116, s 177, s 118 and s 120 of the GIPA Act.

28. The respondent should release all the information under s 12(2)(e) of the GIPA Act.

29. The Tribunal should report the respondent’s misconduct to the relevant Minister under s 112 of the GIPA Act.

30.   Therefore, the Tribunal should have made an order to grant for me leave to file and serve these applications. Note Senior Member Riordan said on 18 January 2002, I should seek leave to raise new assertions.

  1. The Tribunal advised the applicant that it would consider this application at the commencement of the hearing on 31 January 2022.

Hearing on 31 January 2022

  1. At the hearing on 31 January 2022, the applicant appeared in person and Mr D Wong appeared for the respondent. A Korean interpreter was also sworn in to assist the applicant, as and when required.

  2. The applicant stated that she withdrew her objection to the Tribunal’s jurisdiction to determine her application for administrative review and that her application filed on 27 January 2022 was “based on a misunderstanding”. She said that she no longer disputed that the Tribunal had power to review Ms Smith’s decision dated 3 August 2018.

  3. Based on the applicant’s statement, the Tribunal identified the sole issue in dispute as being whether the documents that were withheld by the respondent on 3 August 2018 were “excluded documents” under sch 2 of the GIPA Act.

  4. However, the applicant disagreed with this and said, “There is no decision.”

  5. The Tribunal noted that the applicant withdrew her objection to its jurisdiction to review Ms Smith’s decision dated 3 August 2018. However, the applicant then referred to “the respondent’s invalid decision” and said that the Tribunal should not determine whether there are excluded documents “because there are other priorities.”

  6. The Tribunal noted that: (1) the respondent initially decided that the access application was invalid because it sought documents that were “excluded” under sch 2 of the GIPA Act; (2) the IPC then reviewed that decision and decided that only some of the withheld documents were “excluded” documents; and (3) on 3 August 2018, Ms Smith made a new decision and released the documents that the respondent conceded were not “excluded documents” to her.

  7. The applicant stated that the Tribunal has no power to review the IPC’s decision. However, the Tribunal stated that it is not reviewing the IPC’s decision, but rather the decision made by Ms Smith on 3 August 2018, which gave effect to the IPC’s recommendation.

  8. However, the applicant stated that there is no internal review decision by the respondent and that the Tribunal has no power to review Ms Smith’s decision because “this is not a reviewable decision.” This statement directly contradicted her opening statement. She also said that she “wants a thorough decision by NCAT.”

  9. Ultimately, the Tribunal identified that the following issues were in dispute:

  1. Whether Ms Smith’s decision dated 3 August 2018 was a valid decision that was administratively reviewable by the Tribunal? This involved considering whether Ms Smith hold an appropriate delegation from the respondent to make that decision and whether the decision was made as part of the respondent’s internal review process?

  2. Whether the documents that were withheld by the respondent on 3 August 2018 “excluded documents” under sch 2 of the GIPA Act?

  1. However, the applicant then “demanded” that the Tribunal should review the respondent’s original decision that her access application was invalid. The Tribunal declined to do so on the basis that the original decision was superseded by Ms Smith’s decision dated 3 August 2018, and it was satisfied that this was the appropriate decision for the purposes of the current administrative review.

  2. The applicant repeated that the respondent “has never determined” her access application. However, the Tribunal held that the access application was determined initially when the respondent decided that it was “invalid” and that it reviewed that decision in response to the IPC’s recommendation on 3 August 2018. This has been the scenario for approximately 3.5 years.

  3. The applicant then stated that she “is not seeking the production of excluded documents.” The Tribunal asked her to clarify what she meant by that statement, and the applicant replied to the effect, “We need to deal with different issues”. She then stated that there are no “excluded documents” because “everything should be produced” to her and she then sought to object to the form of Ms Smith’s decision.

  4. In reply, Mr Wong stated that Ms Smith held the appropriate delegation to make her decision dated 3 August 2018, but as the applicant had not previously raised that as an issue, the instrument of delegation was not currently before the Tribunal.

  5. The Tribunal ordered the respondent to file and serve documentation regarding Ms Smith’s delegation to make the decision dated 3 August 2018 by 21 February 2022.

  6. The applicant then “demanded” to be able to file and serve submissions in response to this issue and the Tribunal ordered her to file and serve submissions by 14 March 2022, if she disputed the validity of Ms Smith’s decision.

  7. The applicant said that Ms Smith’s decision dated 3 August 2018 is “faulty” because “it is not a new decision by internal review” and it is not an appropriate decision which is required by s 9(3) of the GIPA Act”. She said that “the email is not good enough… that is why I am here.”

  8. The Tribunal then asked Mr Wong when the respondent filed its confidential documents, as ordered by Ransome SM in November 2021, because they did not appear to be in the file. However, he replied that the confidential documents had not yet been filed.

  9. As the confidential documents had not been filed, the Tribunal was unable to determine whether the withheld documents were “excluded documents” under sch 2 of the GIPA Act and the matter had to be adjourned part heard. The Tribunal ordered the respondent to file a copy of the ‘excluded documents’ marked ‘confidential’ by 14 February 2022 and to file and serve any submissions in response to the applicant’s “reply” by 14 March 2022. It listed the matter for further hearing on 28 March 2022.

  10. The applicant then sought leave to file “a contempt application” against the respondent. However, the Tribunal stated that she may lodge “a contempt application” if she wished to do so, but as that is a matter for the President to determine, it will not be before me on the next hearing date.

Hearing on 28 March 2022 was vacated

  1. Unfortunately, the hearing date on 28 March 2022 had to be vacated because I was diagnosed with COVID-19. The matter was then listed for hearing on 3 June 2022.

The applicants lodged a further “Reply”

  1. On 14 March 2022, the applicant filed and served a further “Reply”, in which sought to raise the following matters (Note: paragraph numbering is as per the original) (footnotes omitted):

Background

1.The Respondent has not answered what UTS’s action to take is and what UTS’s satisfactory response is. Mr Wheeler deprived my review rights by reviewing my initial complaint C/2015/8756 without my consent (R/2015/138)1. I have endeavoured to access the information regarding UTS’s action to take and UTS’s satisfactory response since 8 October 2015. A copy of Mr Wheeler‟s decision in R/2015/138 is at pp54-55 of BUNDLE OmboCHOI-1 dated 29 January 2022 (“OmboCHOI-1”).

INTRODUCTION

2. In the delegation of the functions to Ms Smith, the “functions‟ are conducted in relation to Ms Smith’s email dated 3 August 2018. Eg. searching the information, making a decision, Ms Smith’s establishing that the decision is justified under s97(2) of the Government Information (Public Access) Act 2009 (“GIPA Act”) before the Information and Privacy Commissioner (“IPC”).

3.   The subjected decisions are the Respondent’s invalid decision dated 18 June 2018 and Ms Smith’s email dated 3 August 2018. Thus, I refer to a copy of the appointment and delegation by Mr Barbour in 2013 (“document in 2013”).

SUMMARY OF REPLY

4.   Ms Smith is a legal counsel. The delegation to Ms Smith was invalid. Thus, Ms Smith‟s email dated 3 August 2018 is invalid. The reasons are as follows.

5.   Firstly, the document in 2013 shows the delegation to the “special officer of the Ombudsman” not the delegation to the legal counsels. In short, Mr Barbour did not delegate all of the legal counsels to perform the functions. The delegation is limited to the “Ombudsman officer” appointed or acting in the position of the legal counsel. The document in 2013 can be summarised as:

(1)   The Ombudsman revokes the former delegations to the “Ombudsman officer” occupying the position of the legal counsel.

(2)   The Ombudsman appoints the “Ombudsman officer” appointed or acting in the position of the legal counsel to be a “special officer of the Ombudsman”.

(3)   The Ombudsman delegates functions to the “special officer of the Ombudsman” to the extent permitted by the relevant legislative provisions.

6.   Ms Smith was not a “special officer of the Ombudsman”.

7. It should be highlighted that Ms Smith even confessed she was not appropriate to deal with GIPA review applications. On 20 April 2017, I emailed my GIPA review application to Ms Smith. On 24 April 2017, Ms Smith replied to me, stating

“Dear Ms Choi,

This internal application for review has been received and sent to the appropriate Ombudsman officer for review”

8.   Secondly, the document in 2013 failed to specify the functions delegated. No details of the functions which are delegated. Probably, the functions were not determined seen from the statement the Ombudsman may give the functions from time to time under the “Conditions and limitations as to the exercise of functions delegated.” I submit a copy of the instrument of decision including a detailed list of the functions and the delegates by the IPC.

9. Thirdly, the Administrative Decisions Review Act 1997 (“ADR Act”) does not permit the delegation of the administrators‟ functions to the legal counsels. The ADR Act s8(2) provides “…only administrator…”. Also, the Tribunal has administrative review jurisdiction over a decision of an administrator under s9(1) of ADR Act. Additionally, the conduct of an administrator is administratively reviewable: the ADR Act s7(2)(a).

10. Fourthly, the fact the GIPA Act s112, s116, s117, s118, s119 and s120 which are about offences linking the conduct of administrators indicates the Government Information (Public Access) Act 2009 (“GIPA Act”) does not permit the delegation of the administrators‟ functions to the legal counsels. On the contrary, the conduct of the legal counsel is reviewed by the Legal Profession Uniform Law. Thus, delegation to Ms Smith is invalid.

11. It could be assumed that Ms Smith who is not an administrator and is free from the offence under the GIPA Act made a decision to conceal the information5 sought in my access application.

12. The administrators at NSW Ombudsman have dealt with GIPA matters.

(1) The Ombudsman has encouraged the public to contact the Right to Information officers in the Office of NSW Ombudsman for GIPA matters.6

(2) On 7 December 2016, Mr Wheeler made a privacy internal review decision in response to my privacy complaint. Also, on 19 April 2017, Ms Sanya Silver made an invalid decision in response to my access application under the GIPA Act8. Additionally, on 15 May 2017, the Ombudsman, Mr McMillan made an internal review decision regarding Ms Silver’s notice of decision under the GIPA Act.

(3) The administrators at NSW Ombudsman tried to respond to the GIPA enquiries. Ms Sanya Silver consented to the third-party consultation when Ms Deborah, Information Officer at UTS requested in relation to my access application under the GIPA Act.

19. It could be assumed that Ms Smith who is not an administrator and is free from the offence under the GIPA Act made a decision to conceal the administrative review jurisdiction over a decision of an administrator under s9(1) of ADR Act. Additionally, the conduct of an administrator is administratively reviewable: the ADR Act s7(2)(a).

20.   Fifthly, even if it is assumed that the delegation to the legal counsels had been made, that delegation is invalid because it was not publicized. On 22 February 2022, the Respondent emailed me “The two delegation documents are not available from our public website” upon my question of whether or not they are publicly available. A copy of the email correspondence is at pp35-36 of BUNDLE OmboCHOI-4 dated 14 March 2022 (“OmboCHOI-4”).

13. The Fact Sheet titled “Delegation or authorization of GIPA functions; Publicise the delegation or authorisation” by the IPC states “The instrument of delegation or authorization should also be published on the agency’s website as open access information”.

14. There is no written statement of the decision maker’s authority such as “I am authorised by the principal officer for the purposes of section 9(3) of the GIPA Act to decide your access application” in Ms Smith’s email dated 3 August 2018.

15. The Fact Sheet provides “where a decision is made under delegation or authorisation, notices of decision on access applications should expressly state the basis of the decision maker’s authority to make the decision referring to section 9(3) of the GIPA Act or the relevant power of delegation”.

16.   Sixthly, Ms Smith’s authority is not made apparent to anyone. There is no written statement the principal officer gave Ms Smith the authority to search the information or/and make a decision. It should be said the delegation to Ms Smith was not exercised in accordance with the IPC’s directions. The Fact Sheet under the subtitle “Prepare the delegation or authorisation” provides:

A delegation or authorization by the principal officer should be made in writing. Apart from any legal requirement to do so, this ensures the decision maker’s authority can be made apparent to the recipients of the decision, as well as on review or appeal… It may be an instrument or letter that is provided to the individual or position holder who is the recipient of the authority. Generally, the instrument will state whether it is a delegation or an authorization.

It will also:

* identify and be signed by the principal officer.

* identify the individuals or positions being given authority, and in respect of which functions.

* state the duration of the delegation or authorization, for example, if it is in effect until it is replaced or for a specific time or purpose.

* state whether the delegation or authorization is about a specific access application or applications

* in the case of a delegation, state whether the delegate is allowed to sub-delegate to another person.

17. The name of Ms Smith as well as an administrator’s title or name are required on the delegation instrument. However, they are missing. The Interpretation Act 1987 (NSW) s49 provides:

Section 49 Delegation of functions (1) If an Act or instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned. (2) A delegation— (a) may be general or limited, (b) shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose, and …

18. Rather, Ms Smith delegated herself as a Right to Information officer despite no power to delegate. Michael Polkinghorne in the same division with Ms Smith, Corporate, informed the administrators (Chris Wheeler and Sanya Silver) of the delegation. Mr Polkinghorne’s emails says “Megan has advised that she will take carriage of this matter.” Only the Ombudsman has power to delegate the functions to Ms Smith by virtue of s9(3) of the GIPA Act.

Ms Smith’s email dated 3 August 2018 is not an internal review which the IPC recommended under the GIPA Act

19. I stay with my assertions at paras 12 to 16 filed and served on 29 January 2022. In addition to para 15, I assert that Ms Smith’s email of 3 August 2018 did not comply with s126(1)(b) and s126(1)(d) of the GIPA Act “Requirements for notices given by agencies” not by providing the date of the decision and the contact details of an officer to whom inquiries.

20. I submit a copy of the template of an agency’s notice of decision under the GIPA Act from the IPC‟s website at pp42-52 of OmboCHOI-4.

21. Even if it is assumed that Ms Smith’s email of 3 August 2018 were lawfully made under s84(2) of the GIPA Act, it is a reviewable decision under s80(c) of the GIPA Act: a deemed refusal decision. The Respondent has not decided my access application under s58 of the GIPA Act yet. It is a delayed decision in s108 of the GIPA Act as well.

22. On 16 February 2022, I received a notice of decision by Ms Smith dated 6 August 2018 for the first time. Thus, I do not agree with the document name “5 Email from Mr Polkinghorne, Project Officer, to Ms Choi attaching (among others) a letter of Legal Counsel dated 6 August 2018 (“Ms Smith’s decision dated 6 August 2018”). The contents of Ms Smith’s email dated 3 August 2018 (pp1230-1233 of OmboCHOI-1), Ms Smith’s decision dated 6 August 2018 and Mr Polkinghorne’s email dated 6 August 2018 (pp1234-1237 of OmboCHOI-1) are all slightly different one another. It should be said the Respondent made three reviewable decisions having no reference number in response to one access application. Thus, Ms Smith’s email dated 3 August 2018 is not an internal review decision under the GIPA Act.

23.   On 4 January 2017, Ms Smith wrote an apology letter to the IPC in response to the IPC‟s complaint about Mr Wheeler’s privacy internal review decision (p1013 and pp1220-1221 of OmboCHOI-1). In her letter, Ms Smith criticised Mr Wheeler’s omitting the review rights from the internal review decision. Then, it could be inferred that Ms Smith omitted the review rights from her email dated 3 August 2018 on purpose not by mistake to prevent external reviews.

A FAILURE OF CONDUCTING REASONABLE SEARCHES

24. I was unable to raise an issue of a failure of conducting reasonable searches in my NCAT review application dated 19 July 2018 because I was only dissatisfied with the Respondent’s invalid decision in response to my access application under the GIPA Act.

25.   On 3 August 2018, a legal counsel, Ms Smith emailed 53 attachments in a zip format15. I have been unable to open these 53 attachments. The Respondent claimed Ms Smith’s email with 53 attachments is an internal review decision following the recommendation of the Information and Privacy Commissioner (“IPC”) dated 19 July 2018.

26.   On 15 September 2021, the Respondent emailed a 193-page bundle pursuant to Order 117 dated 14 September 2021. On 11 January 2022, the Respondent asserted the 193-page bundle is the same as the 53 attachments dated 3 August 2018.

27.   Thus, it was on 11 January 2022 when I acknowledged that the Respondent failed to conduct reasonable searches by viewing the 193-page bundle. In other words, I was only able to notice the Respondent had fail to conduct reasonable searches in collecting excluded and non-excluded information on 11 January 2022. On 18 January 2022 at the preliminary hearing, I raised an issue of reasonable searches.

28.   Therefore, the Tribunal should judge whether or not the Respondent had conducted reasonable searches as well. I request the Tribunal to stick to amended Order 3 Note 2 dated 21 January 2022 “If the applicant wishes to raise any further issues, she must notify the Respondent and Tribunal of this as soon as possible and the Tribunal will consider them in the context of the rules of procedural fairness on the hearing date.”

Excluded information vs non-excluded information among filed ones

29. Before the Tribunal judge whether or not the Respondent conducted reasonable searches, it would be good if the Tribunal evaluate whether all the information filed under “confidential‟ is excluded information in Schedule 2 of the GIPA Act. Also, a reason among complaint-handling function or investigative function should be identified.

30.   The Respondent’s list titled excluded information has been amended several times since 3 August 2018.

(1)   On 3 August 2018, the Respondent determined everything except for the following information in the table is the „excluded information‟. Its ground is Ms Smith’s 53 attachments were not used in handling and investigating the complaints.

Correspondence Between Choi and the Respondent in relation to:

(1) Choi’s NCAT privacy proceedings (2017/10926)

(2) Choi’s complaint to the Anti-Discrimination Board

(3) Choi’s GIPA access application in 2017

(2)   On 15 September 2021, the Respondent served 193-page bundle. On 9 November 2021, Senior Member Ransome noted “all information not released to Ms Choi is excluded information” at Order 5.

(3)   On 7 December 2021 and 18 January 2022, the Respondent said a bundle with a list of excluded information (from Doc No 1 to 61) was filed.

(4)   On 31 January 2022, at the hearing, the Respondent said it did not file excluded information. Thus, a hearing was adjourned.

(5)   On 10 February 2022, an around 808-page bundle with an amended list of excluded information (from Doc No 1 to 133) was filed.

(6)   On 16 February 2022, the Respondent filed an around 220-page bundle with a further amended list of excluded information without asking for leave. Numerous items were omitted.20

(7)   On 16 February 2022, the Respondent amended Ms Smith decision with the 53 attachments dated 3 August 2018 without asking for leave. The Respondent served a list of documents titled “SCHEDULE-DOCUMENTS THAT OMBUDSMAN AGREES TO PROVIDE TO APPLICANT (EMAIL SENT 11 FEBRUARY 2022).” However, the Respondent did not email me anything on 11 February 2022.

(8)   My email to Mr McMillan dated 22 June 2017 was determined as excluded information on 3 August 2018. On the contrary, Ms Smith provided my email to Mr McMillan dated 8 June 2017 which is similar with my email dated 22 June 2017. However, on 10 February 2021, the Respondent submitted a list of excluded information including my email to Mr McMillan dated 8 June 2017 at Doc No 100. Soon, on 16 February 2022, the Respondent re-determined to provide my email to Mr McMillan dated 8 June 2017.

(9)   The Respondent provided me with my submissions although it was used in handling my privacy complaint.

31.   The Respondent was not honest. As a result, the hearing dated 31 January 2022 was adjourned. It should be said the Respondent endeavoured to conceal the information. The Respondent continued to amend a list of excluded information. The Respondent’s material is not accountable.

More materials are still kept by the Respondent

32.   I contend there is more information that is still kept by the Respondent. The Respondent served or/and filed around 1000 pages as excluded and non-excluded information in this matter. In late 2016, I sent over 500 pages to Mr Conaty in my complaint about Provost’s exclusion (C/2016/9206). Further, ten more complaints were lodged during the material period from 22 September 2015 to 13 June 2018.

33.   Sending voluminous emails, my disability, caused UTS to exclude me in December 2016 and caused the Respondent to determine to reject my complaints in February 2017. Therefore, much more information should have been filed or/and served. A brief summary of complaints is at para 16 to p610 of OmboCHOI-1.

34. NCAT proceedings Choi v NSW Ombudsman 2018/299612 whose leave decision is reserved is my application under the Anti-Discrimination Act 1977. A Chronology in the proceedings could assist the Tribunal to imagine the volume of the materials and understand my complaints. Thus, I attach a Chronology attached to the back of this reply.

35.   Must-be items in the TRIMmed

(1)   Mr Conaty or/and Mr Britton recorded what “UTS‟s action to take” and “UTS‟s satisfactory response” are (C/2015/8756). They are the reasons why the Respondent had closed my complaint on 8 October 2015 without further investigation despite the seriousness of my complaint. The information is recorded in the TRIM records management system. I have endeavoured to access to the information without success.

(2) Ms Unwin witnessed the information substantiating that the Respondent’s disability discrimination was caused by my presumed mental disorders is recorded.29 The information could influence my proceedings Choi v NSW Ombudsman 2018/299612 under the Anti-Discrimination Act 1977.

(3)   I stay with the paras 31(6), 35-37 of my submissions dated 29 January 2022.

(4)   The Respondent ignored E/2016/27446, my Complaint about Mr Conaty’s discrimination, UTS’s exclusion, my Complaint about UTS‟s forgery, my complaint Ms Wise and Complaint about the Ombudsman. Then, the Respondent would have recorded.

36.   The information filed under “Confidential” or provided to me is nearly all correspondence. There must be notes or records.

The GIPA Act s12(2)(e) and s112

37. I stay with paras 3, 31(2), 55 in relation to s12(2)(e) of the GIPA Act.

38. I stay with paras 4, 31(7), 57 related to s112 of the GIPA Act.

39.   I wish to raise a new allegation. In reality, I have not received the email from Ms Barton on 27 November 2015 (p423 of Bundle OmboCHOI-1). On 7 December 2015, Ms Barton sent me Mr Wheeler‟s review decision regarding my initial complaint about Professor Daly (R/2015/138) (pp54-55 of Bundle OmboCHOI-1). I did not request the Respondent to review C/2015/8756. On 7 December 2015, Mr Wheeler stated “…Ms Barton also emailed you on 27 November asking for clarification of your concern… You did not respond to either request.” Then, Mr Wheeler emphasised “only one review policy” and rejected my questions about what UTS’s action to take is and UTS’s satisfactory response.                  

APPLICATION FOR CONTEMPT OF TRIBUNAL

40.   I am planning to lodge an application for contempt to the Tribunal regarding the Respondent’s conduct.

CONCLUSION

41.   On 18 January 2022 at the preliminary hearing, Senior Member Riordan had power to order the Respondent to make a reviewable decision or subsequent decision or a new decision by way of internal review upon my exclusive request. However, Senior Member Riordan said she had no power to make such an order. I request the Tribunal to order the Respondent to make a new decision.

42. Ms Smith had no power to search the information and make a decision under the GIPA Act. Ms Smith’s email dated 3 August 2018 is not an internal review decision that the IPC recommended.

43.   I request the Tribunal to make an order to release all the excluded and non-excluded information which the Respondent regards.

44.   I stay with my submissions including offences and report in the past.

45. My case has implications. The Respondent has abused “excluded information” in response to access applications under the GIPA Act. Thus, only very few people have applied for access applications for far. I wish my matter to encourage the public to access information.

46.   The Respondent is not honest and try to conceal the information sought to conceal its misconduct, which I think. I wish my case to alarm the corrupted public officers in New South Wales.

47.   I wish the Tribunal to make a landmark decision. I hardly view any decisions to order NSW Ombudsman to release the information.

Instrument(s) of delegation filed and served

  1. On 16 March 2022, the respondent filed and served the instrument of delegation dated 13 June 2013, which indicates that the Ombudsman appointed “Legal Counsel” as a special officer of the respondent and that the delegated functions included those under ss 8, 9, 51-79 and 83-86 of the GIPA Act.

Respondent’s submissions in response to the applicant’s “Reply”

  1. On 16 March 2022, the respondent filed submissions in response to the applicant’s reply, which addressed two issues: (1) The validity of Ms Smith’s delegation under the GIPA Act; and (2) Whether the decision dated 3 August 2018 was an internal review decision.

  2. The respondent argued that the instrument of delegation dated 13 June 2013 remained in force until 9 January 2020, when a new instrument superseded it. It stated that on 3 August 2018, in her email to the applicant, Ms Megan Smith, Legal Counsel for the Ombudsman, stated that she had made a new decision by way of internal review in relation to the GIPA application, following a review by the IPC. She decided to provide the applicant with access to a number of documents and also decided that the access application was otherwise invalid because it sought ‘excluded information.’

  3. The respondent also argued that the 2013 delegation instrument was validly made in accordance with the Ombudsman Act 1974 (NSW) (the Ombudsman Act) and Ms Smith’s decision dated 3 August 2018 was validly made under the authority conferred upon her by that delegation instrument.

  4. The respondent submitted that s 8(2) of the ADR Act does not bar the delegation of administratively reviewable decisions to legal counsel and that the applicant “misconceives the purpose of that provision, which is to deem the relevant administrator where more than one person is involved in the making of a decision.” There is also nothing in the language of ss 112 and 116 to 120 of the GIPA Act from which any such prohibition may be implied. The applicant has not set out any basis for her assertion that legal counsel is in some way “immunised from such offences by reason of being a legal practitioner” and there is no basis for that assumption.

  5. There is also no legal requirement that the delegation instrument must be published in order to be valid. The applicant does not identify any provision imposing a publication requirement and there is no such requirement in the GIPA Act, the Government Information (Information Commissioner) Act 2009, the Ombudsman Act or any other relevant legislation.

  6. The respondent stated that to the extent that the 2013 delegation instrument should be considered ‘open access information’ and published, a failure to do so could not affect its validity of that instrument because there is no provision in the GIPA Act or the Ombudsman Act to suggest otherwise.

  7. While the applicant relies on an alleged non-compliance with the Fact Sheet issued by the IPC and updated in March 2020, she has not identified the legal effect of that publication or its relevance to the validity of the delegation instrument. The respondent stated that the Fact Sheet was issued to assist agencies in the exercise of their functions: GIPA Act, s 17(d) and it has no relevance to question of the validity of the delegation instrument. It stated:

21. The validity of the decision made by way of Ms Smith’s email of 3 August 2018 was not affected by the absence of express statement regarding her delegated authority… This was because Ms Smith did in fact have such authority under the 2013 delegation instrument. Contrary to the applicant’s submission (paragraph [17]), this was and is expressly permitted by section 49 of the Interpretation Act 1987.

22.   Ms Smith’s delegated authority was not confined to any specific matter, and there are no conditions or limitations on its exercise.

Applicant’s objection to the respondent’s submissions

  1. On 17 March 2022, the applicant the following email to the Tribunal:

Dear Registrar,

The Tribunal MUST reject the respondent’s submissions which are out of the timeframe. Please see the attached 2-22-03-16 files.

The respondent already gave several submissions that the Member did not order.

The respondent has filed and served more than the Tribunal ordered.

I enclose the order.

The files should be rejected for fairness…

Applicant files “The omitted Notice of Authorisation in relation to order 3

  1. On 27 May 2022, the applicant filed a further document headed “The omitted Notice of Authorisation in relation to Order 3” in which she asserted that “…Ms Smith had no authorisation to make the decisions dated 3 August 2018.”

  2. The applicant argued that the respondent failed to file a Notice of Authorisation dated 17 April 2015, which she had “obtained”, which proves that Ms Smith “…had no authorisation to make the decisions dated 3 August 2018 under the Government Information (Public Access) Act 2009.”

Application to appoint a McKenzie Friend

  1. On 30 May 2022, the applicant emailed a further copy of her submissions dated 27 May 2022 to the Tribunal by email and she sent a further email in the following terms:

Hi,

1.   The hearing started at 10 am on 3 June 2022?

2.   Should I ask for leave to have McKenzie friend for this matter? My four friends wish to be my McKenzie Friend in this simple and obvious matter to grab the media’s attention….

  1. On 31 May 2022, the applicant sent another email to the Tribunal, in which she stated (inter alia):

I wish the Member to grant me leave to have McKenzie’s friend for fairness and justice.

I am a single mother with non-English background and without legal knowledge in Korea…

  1. On 2 June 2022, the Registry advised the parties that the Tribunal would consider the request to appoint a McKenzie friend at the commencement of the hearing on 3 June 2022.

Application for Miscellaneous Matters dated 2 June 2022

  1. On 2 June 2022 at 11:09 pm, the Tribunal received an email from the applicant, which attached two Interlocutory Applications “for tomorrow's hearing, scheduled at 10:00 am”, which consisted of 168 pages. These documents comprised:

  1. An Application for Miscellaneous Matters dated 2 June 2022; and

  2. Her affidavit (comprising 6 pages) and an Exhibit (comprising 146 pages).

  1. Clearly indicates that Ms Smith was making a new decision after she reviewed the respondent’s original decision following the IPC’s report.

  2. Clearly identifies (and attaches) the documents that the respondent concedes are not “excluded information” under cl 2 of sch 2 of the GIPA Act.

  3. Clearly states that apart from the attached information, the respondent maintains its decision that the information sought in the access application was “excluded information” and that, to the extent that the access application sought that information, it was not a valid application under s 43 of the GIPA Act.

  1. For these reasons, I am satisfied that the decision contains sufficient information to enable the applicant to understand the reasons why the respondent decided that with respect to the documents withheld on 3 August 2018, the access application not invalid.

  2. The applicant also challenged the validity of Ms Smith’s decision on the basis that it did not contain information regarding her rights of review.

  3. However, I note that Ms Smith made her decision dated 3 August 2018 after the applicant commenced these proceedings and that her decision was made in accordance with the Tribunal’s procedural orders.

  4. I also note that the applicant told the Tribunal that she is an experienced litigant in relation to GIPA Act matters and in any event, she has not identified any particular prejudice arising from the absence of any advice of review rights arising from the decision dated 3 August 2018.

  5. In these circumstances, I am satisfied that the applicant was not prejudiced by the absence of advice of review rights in that decision and that the absence of that advice is not fatal to the decision’s validity.

  6. The applicant also argued that there is no “excluded information” and that the information that the respondent withheld should be produced to her under s 12(2) of the GIPA Act and in her most-recent “submissions”, she raised matters that are set out in notes (a) to (e) (inclusive) of s 12(2).

  7. However, the applicant did not address the provisions of s 43 and cl 2 of sch 2 of the GIPA Act, which are the grounds relied upon by the respondent for deciding that in relation to the withheld documents, the access application is not valid.

  8. Clause 2 of Schedule 2 of the GIPA Act provides, relevantly:

Schedule 2 Excluded information of particular agencies

Note—

Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.

…

2 Complaints handling and investigative information

…

The office of Ombudsman—complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993).

  1. Accordingly, if the Tribunal determines that the documents withheld by the respondent on 3 August 2018 are “excluded documents”, s 43 of the GIPA Act provides that to the extent that those documents are sought the access application is not valid. Therefore, s 12 (2) of the GIPA Act will not assist the applicant.

  2. Based on the confidential evidence lodged by the respondent, the Tribunal is satisfied that with the following exceptions, the documents listed in the Further Amended Confidential Schedule of Documents dated 16 February 2022 are “excluded documents” under cl 2 of sch 2 of the GIPA Act.

  3. However, although the respondent objected to producing the attachments to document no. 49, it stated that these documents were provided to it by the applicant.

  4. In my view, the attachments to document no. 49 were received from the applicant in the context of the investigation of a complaint, which technically means that they are “excluded documents” under cl 2 of sch 2. However, as these documents are already within the applicant’s possession, custody or control, I do not consider that there is any utility in withholding them.

  5. However, I am satisfied that document no. 49 itself is an excluded document and that it should not be released to the applicant.

  6. The respondent withdrew its objection to document no. 81 and that document should therefore be released to the applicant.

  7. Accordingly, with the exception of the documents discussed in paras 157 and 173 of this decision, I am satisfied that the access application sought excluded documents under cl 2 of sch 2 of the GIPA Act and that to the extent that it did so it is not a valid access application: s 43 of the GIPA Act.

Refusal to appoint a McKenzie Friend

  1. On 6 June 2022, the Tribunal refused the application to appoint a McKenzie friend. I stated that written reasons would be provided when the administrative review application was determined. While this was superseded to some extent by the applicant’s ‘demand’ dated 19 June 2022, my reasons for decision are as follows.

  2. I note that the concept of a McKenzie Friend arose from the decision in McKenzie v McKenzie [1970] 3 All E.R. 1034 (McKenzie).

  3. In 2019, Senior Member Montgomery considered an application to appoint a McKenzie Friend in the matter of Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 38 (Zidar). He noted that s 38(1) of the NCAT Act provides that the Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

  4. In Zidar, Montgomery SM noted that O’Connor DCJ considered the issue of appointing a McKenzie Friend in the matter of McGuirk v Vice-Chancellor, University of New South Wales [2009] NSWADTAP 43 (McGuirk). His Honour cited the decision of Lindenmayer J in McKenzie as being authority for the proposition that a McKenzie friend is a person who is “of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings.” His Honour also stated that a person who is appointed as a McKenzie Friend may not act as an advocate in the proceedings and that the appointment of a McKenzie friend was to assist (in this case) the Tribunal.

  5. In this matter, the evidence before me indicates that the applicant resides in South Korea, while Ms Webb stated that she is located in regional New South Wales. The proceedings were being conducted by way of AVL and it was therefore not physically possible for Ms Webb to sit at the bar table (virtual or otherwise) and offer support to the applicant during the hearing.

  6. In her application dated 2 June 2022, the applicant stated that Ms Webb reached out to her and offered her assistance in this matter. She stated that Ms Webb administers “the following professional website, that specialises in assisting with educating the public with their GIPA applications and GIPA legislation” (web address provided) and that “she has extensive experience in NCAT and can provide me with assistance and support to help me run this case.” She further stated, inter alia, that Ms Webb understands that a McKenzie Friend's role is limited to:

a.   Aiding and providing support from the Bar table, Video link, Telephone or by email; and

b.   Can only engage the Tribunal if leave is approved and at the request of the Tribunal Member if they request that she clarifies matters that I am unable to articulate or to assist the Tribunal to make the correct and preferable decision.

  1. The Tribunal determined that it would not assist in the orderly conduct of the proceedings or assist the Tribunal to determine the matter if Ms Webb was appointed as a McKenzie Friend.

  2. In any event, based on the applicant’s oral reasons on 3 June 2022, it was not necessary for Ms Webb to be appointed as a McKenzie Friend in order to provide her with “moral support” as Ms Webb was present in the AVL hearing as a member of the public and she could provide “moral support” in that capacity.

Findings and Orders

  1. I make the following findings and orders:

  1. The application to appoint a McKenzie Friend for the applicant is refused.

  2. The respondent’s decision dated 3 August 2018 is valid and is an administratively reviewable decision.

  3. The respondent is to provide the applicant with copies of the attachments to document no 49 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision.

  4. The respondent is to provide the applicant with a copy of document no 81 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision.

  5. The remainder of the documents listed in the respondent’s Further Amended Confidential Schedule of Documents dated 16 February 2022, including document no 49, are “excluded documents” under cl 2 of sch 2 of the GIPA Act.

  6. The respondent’s decision dated 3 August 2018 is otherwise affirmed.

**********

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

Decision last updated: 29 August 2022

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Cases Citing This Decision

1

Choi v NSW Ombudsman [2023] NSWCATEN 2
Cases Cited

13

Statutory Material Cited

10

CEU v Ombudsman [2017] NSWCATAD 267
Capilano Honey Ltd v Dowling [2018] NSWSC 876
CEU v University of Technology Sydney [2017] NSWCATAD 323