Choi v NSW Ombudsman

Case •

[2023] NSWCATEN 2

•

02 May 2023

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Choi v NSW Ombudsman [2023] NSWCATEN 2
Hearing dates: On the papers
Date of orders: 02 May 2023
Decision date: 02 May 2023
Jurisdiction:Enforcement
Before: Coleman SC ADCJ
Decision:

(1) To the extent necessary, pursuant to s 45(1)(b)(ii) of the Civil and Administrative Tribunal Act 2013 (NSW), leave is granted to the Respondent to be legally represented.

(2) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing of the application filed on 2 June 2022.

(3) The application of the Applicant filed on 2 June 2022 is dismissed.

(4) Leave to amend the application filed 2 June 2022 to raise an additional ground is refused.

(5) Any party seeking an order for costs of the proceedings file and serve written submissions not exceeding 5 pages in length in support of such application within 28 days of these orders.

(6) A party resisting an application for costs file and serve written submissions not exceeding 5 pages in length in opposition to such application within 56 days of these orders.

(7) Any party opposing an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of any costs application include in any written submissions filed pursuant to these orders submissions in opposition to such order.

Catchwords:

PRACTICE AND PROCEDURE – contempt – whether notice of representation by legal practitioner should be “revoked” – whether name of party should be amended – whether number of proceedings should be amended – whether evidence capable of establishing contempt in the face of Tribunal – whether evidence capable of establishing breach of orders of Tribunal

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 45(1)(b)(ii), 50(2), 53, 73(5)

Government Information (Public Access) Act 2009 (NSW), s 43

Cases Cited:

Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited (1986) 161 CLR 98; [1986] HCA 46

Brown v The Owners - Strata Plan 82527 [2022] NSWCATAP 328

Burns v Corbett [2015] NSWCATAD 188

Choi v NSW Ombudsman [2018] NSWCATAD 248

Choi v NSW Ombudsman [2022] NSWCATAD 292

DVI v ZTT [2021] NSWCATEN 4

European Asian Bank AG v Wentworth (1986) 5 NSWLR 445

Fraser v The Queen [1984] 3 NSWLR 212

GR v Family and Community Services [2021] NSWSC 39

GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198

GR v Secretary, Family, Disability and Community Services; GR v Minister, Family, Disability and Community Services [2020] NSWSC 668

Just v Wu [2023] NSWCATEN 1

Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35

Mirus Australia Pty Limited v Gage [2017] NSWSC 1046

Mohareb v Kelso [2020] NSWCA 105

Mohareb v Palmer [2017] NSWCA 281

National Australia Bank Limited v Juric [2001] VSC 375

Nowacki & Ors v S & Q Assets Pty Limited [2022] NSWCATEN 1

Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277

Registrar, Court of Appeal v Collins (1982) 1 NSWLR 682

Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33

Ros v Commissioner of Police [2020] NSWCATAP 70

Turner v NSW Forensic & Analytical Science Service [2017] NSWCATAD 181

Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3

Category:Principal judgment
Parties: Jae Hee Choi (Applicant)
NSW Ombudsman (Office of the Ombudsman) (Respondent)
Representation:

Solicitors:
Applicant (self represented)

Respondent
D Kell SC (Counsel)
Crown Solicitor
File Number(s): PC 22/29089
Publication restriction: Nil

REASONS FOR DECISION

Introduction

  1. By application filed on 2 June 2022, Jae Hee Choi (Applicant) sought that the NSW Ombudsman (Respondent) be referred to the Supreme Court to be dealt with for contempt of the Tribunal pursuant to the provisions of s 73(5) of the Civil and Administrative Tribunal Act 2013 (CAT Act).

  2. The Applicant alleged that the Respondent was in contempt of the Tribunal on the basis that the Respondent:

  1. Failed to comply with order 1 of the orders made on 9 November 2021 by the Tribunal, as constituted by Senior Member Ransome, requiring the respondent to file and serve open evidence and submissions, including a schedule of documents, on or before 7 December 2021;

  2. At the listing on 18 January 2021, told “a lie” to the Tribunal, as constituted by Senior Member Riordan, by stating that the respondent had filed certain “excluded information” with the Tribunal;

  3. Failed to comply with Tribunal orders, dated 9 November 2021 and 18 January 2022, by not filing confidential documents with the Tribunal;

  4. Withdrew confidential documents that had been filed with the Tribunal; and

  5. Failed to comply with an order 2 of the Tribunal orders of 31 January 2022 requiring the respondent to provide evidence of delegated authority, by failing to provide relevant delegation instruments.”

    1. The Applicant filed an Affidavit of 2 June 2022, together with a bundle of documents which were exhibited to the Affidavit.

    2. The Respondent resisted the Applicant’s application.

    3. On 25 July 2022, the Tribunal made procedural orders, including a direction (order 2) that a party opposing an order dispensing with a hearing pursuant to s 50(2) of the CAT Act, file and serve submissions in support of such opposition.

    4. The Applicant filed submissions on 8 September 2022. On 30 September 2022, the Respondent filed an Affidavit of Ellen Southwood, to which were exhibited a number of documents evidencing the prior history of the proceedings between the parties. The Respondent filed submissions in response on 4 October 2022.

    5. On 20 October 2022, the Applicant sought, pursuant to s 53 of the CAT Act, amendments to her referral application in the following terms:

  1. The notice of representation by legal practitioner dated 18 August 2022 be revoked.

  2. The current party name “NSW Ombudsman (Office of the Ombudsman)” be amended to “Office of the Ombudsman trading as State Government ABN 763 258 862 67”.

  3. The case number “PC22/29089” be amended to the case number “2018/00226998” which is the parent case number; and

  4. Order 3 made 25 or 27 July 2022 be stayed.”

    1. On 24 October 2022, the Tribunal made further procedural directions, essentially extending the time for compliance with previous directions of the Tribunal.

    2. On 3 November 2022, the Applicant filed submissions in support of her original referral application and her application of 20 October 2022, together with more than 400 pages of annexures. The annexures included documents from 2017 with respect to proceedings which the Applicant brought against the University of Technology Sydney, orders made in those proceedings, a Summons (Judicial Review) filed in the Common Law Division of the Supreme Court of New South Wales on 3 April 2020 in proceedings between the Applicant and the Respondent, an order erroneously said to have been made by the Wright J, the President of the Tribunal on 17 July 2020 removing the proceedings to the Court of Appeal, pleadings and other documents filed in the Supreme Court, submissions filed in the Common Law Division of the Supreme Court and the Court of Appeal, a copy of a decision of a Judge of the Equity Division of the Supreme Court in GR v Family and Community Services [2021] NSWSC 39, a copy of the decision of Basten JA and Callinan JA of 26 August 2020 in the same proceedings (GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198), a further decision of a Judge of the Equity Division of the Supreme Court in those proceedings (GR v Secretary, Family, Disability and Community Services; GR v Minister, Family, Disability and Community Services [2020] NSWSC 668), a decision of the Tribunal in proceedings between the Applicant and the Respondent of 19 October 2018 (Choi v NSW Ombudsman [2018] NSWCATAD 248), a copy of the decision of the Tribunal in proceedings between the Applicant and Respondent of 29 August 2022 (Choi v NSW Ombudsman [2022] NSWCATAD 292), copy of the Judgment/Order of the Court of Appeal of 31 May 2021 in proceedings between the Applicant and the Commissioner of Police, New South Wales Police Force, orders of the Court of Appeal of 17 December 2020 dismissing the application by the Applicant for leave to appeal in the proceedings between herself and the University of Technology Sydney, copy of a publication by the Australian Government and Critical Infrastructure Centre headed “Requirements for Reporting Entities under the Security of Critical Infrastructure Act 2018 (Cth), document headed “Applicant’s Final Submissions” dated 29 June 2022 with respect to proceedings between the Applicant and the Respondent, copy of orders of the Tribunal of 23 June 2022, copy of NCAT complaint form signed by the Applicant on 28 June 2022, copy of NCAT Policy 2 (October 2019) publishing Reasons for Decisions, transcript of proceedings before a Registrar of the Common Law Division of the Supreme Court of 30 June 2022 in proceedings between the Applicant and the Respondent, letter from the Applicant to the Auditor General of New South Wales of 30 August 2022 entitled “Suggest of an Audit - Department of Communities and Justice trading as State Government entity ABN 3643 387 515 85”, copy letter from the Applicant to the Premier of New South Wales, the Chief Justice of the High Court of Australia, the Attorney-General of New South Wales, and a number of Judges of Appeal of the Supreme Court of New South Wales of 17 October 2022 headed “A channel to report Attorney General of NSW’s crime”. The asserted relevance of the documents has not been identified by the Applicant. The Tribunal is satisfied that, to the extent that could be relevant, nothing emerging from the documents could advance the Applicant’s case.

    3. On 5 December 2022, the Respondent filed supplementary submissions with respect to the Applicant’s further application of 20 October 2022.

    4. The principles governing the present application are not in doubt and do not require extensive reiteration.

Principles governing the referral application

  1. Although not so articulated, grounds 2 and 4 of the Applicant’s application appear in substance to allege contempt “in the face” of the Tribunal pursuant to s 73(5) of the CAT Act.

  2. In Mirus Australia Pty Limited v Gage [2017] NSWSC 1046, Ward CJ in Equity (as Ward P then was) observed with respect to a criminal contempt, at [117]:

“Criminal contempt involves interference with the administration of justice. The precise elements of criminal contempt vary with the nature of the contempt alleged. The law is typically expounded by reference to general categories of behaviour, though such categories are not closed. Those categories include contempt in the face of the court (‘such as speaking insulting words to a judge in the discharge of his or her office, making affray or other disturbance that disrupts the business of the court, refusing to be sworn to give evidence or refusing to answer questions, interfering with witnesses, seeking to coerce or improperly influence a judge, publishing material that may interfere with a fair trial, and assisting a party to breach a court’s orders’ …) and contumacious disobedience to the court’s orders that exhibits defiance of the court.”

  1. The Applicant alleges that the Respondent “lied” to the Tribunal and removed documents from the Tribunal file. In Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245 (Lane) at 257; [1981] HCA 35, the High Court accepted that “action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice, using that term in a broad sense” could constitute contempt of court. Grounds 2 and 4 of the Applicant’s application allege conduct by the Respondent which, if established, could tend to interfere with or obstruct the due administration of justice.

  2. In Fraser v The Queen [1984] 3 NSWLR 212 (Fraser), the Court held that the conduct complained of could not constitute contempt as it was not “conduct, seen, heard or otherwise sensed by the Tribunal Member”. In Mohareb v Kelso [2020] NSWCA 105 (Mohareb) at [7], Simpson AJA “discerned” that the alleged contempt in the face of the Court was a “criminal assault upon the Applicant motivated by proceedings brought in the District Court by the Applicant against the First Respondent”, which allegedly occurred “at the Applicant’s home, well away from Court” (at [11]). In Mohareb, at [10], Her Honour referred to Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 (Collins) as a “case in which a protestor, standing in the precincts of several courts where criminal trials were conducted, in some cases where trials were in progress, handed out pamphlets to jurors and potential jurors, urging awareness of what Collins asserted to be police malpractice. The Court took an expansive view of what constituted contempt in the face of the court” and observed that a “later bench of the Court in Fraser v The Queen [1984] 3 NSWLR 212 drew back from such an expansive approach”.

  3. In Turner v NSW Forensic & Analytical Science Service [2017] NSWCATAD 181 at [18], Deputy President Hennessy LCM referred to the interpretation of contempt in the face or hearing of the Tribunal adopted in Fraser, as “conduct seen or heard by the decision maker”, and noted that, by reference to Collins, there was a “wider view” that contempt in the face or hearing of the Tribunal “extends to conduct without geographic boundaries … which is sufficiently proximate in time and space to the trial of proceedings then in progress or imminent so as to provide a present confrontation to the trial”. Although the consideration of the issue concluded by referring to the statement by Priestley JA in European Asian Bank AG v Wentworth (1986) 5 NSWLR 445, at 463, that “either view is open”, and that the Court had adopted the “broader view” in that case, the Tribunal does not appear to have preferred either approach, or have needed to on the facts of the case before it.

  4. Without needing to express a concluded view, and particularly having regard to the fact that the Respondent is a model litigant, the Tribunal accepts that, if there is evidence capable of establishing the facts alleged pursuant to grounds 2 and 4, such conduct could be capable of constituting contempt in the face of the Tribunal.

  5. The principles governing the referral application in reliance upon alleged breaches of orders of the Tribunal (grounds 1, 3 and 5) are not in doubt.

  6. In DVI v ZTT [2021] NSWCATEN 4 (DVI), the Tribunal, constituted by the President, Armstrong J, reviewed the relevant legal principles with respect to referral applications. Her Honour identified at [5] the two procedures for dealing with contempt of the Tribunal provided by s 73 of the CAT Act. It is not in doubt that the first procedure, which is “limited to cases where contempt is committed in the face of, or in the hearing of, the Tribunal” has no present application. The second procedure, which arises pursuant to s 73(5) of the CAT Act, involving alleged breaches of orders of the Tribunal, is the provision upon which the present applicants rely.

  7. In DVI at [7], the Tribunal referred to the decision of the Court of Appeal in Mohareb v Palmer [2017] NSWCA 281 at [19], in which it was held that the matter for determination in a referral application is whether the conduct complained of is “capable” of amounting to contempt of the Tribunal. The Tribunal accepted at [8] that, if that finding is made, the alleged contemnor must be afforded the opportunity to show why the matter should not be referred to the Supreme Court, which does not require any waiver of the right to silence, which right should be made clear to the respondent to the referral application. Those matters were made clear in the orders which the Tribunal made at the Directions Hearing on 25 July 2022. The Respondent waived the right to silence.

  8. In reliance upon the authorities to which it referred, the Tribunal accepted at [9] that the power to refer a contempt application to the Supreme Court is discretionary, and underlined by the consideration that the power to punish for contempt is appropriately invoked “sparingly and only in serious cases”. In Burns v Corbett [2015] NSWCATAD 188 at [92], the Tribunal recorded that, in considering whether to refer a contempt application based upon breach of Tribunal orders to the Supreme Court, the Tribunal should consider whether there were alternate means of enforcing the Tribunal’s orders and, in the exercise of discretion, take into account the availability of those alternatives, and whether any of them has already been invoked.

  9. As the Tribunal recorded in Burns v Corbett at [93], and the decisions of the High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited (1986) 161 CLR 98; [1986] HCA 46 and Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 confirm, there are two purposes in referring an alleged contempt based on failing to comply with orders of the Tribunal to the Supreme Court. Those purposes are to secure enforcement of the orders for the benefit of the party entitled to that benefit, and to protect the effective administration of justice by demonstrating that orders of the Tribunal will be enforced.

  10. In DVI at [11], the Tribunal referred to the common law requirements for a successful prosecution for contempt for breach of a court order as:

  1. establishing that the alleged contemnor had notice of the order;

  2. the obligation imposed by the order being sufficiently clear to support enforcement of the order against the alleged contemnor; and

  3. the conduct of the alleged contemnor amounted to a wilful, as opposed to a “casual, accidental or unintentional” failure to comply with the order.

  1. The issue for consideration in these proceedings is the third of the requirements. It is not in issue that the Applicants have established the first and second of the requirements at common law.

  2. As is not in doubt, the Applicant bears the onus of proving the facts which would demonstrate that the conduct of the Respondent of which they complain is “capable” of amounting to contempt of the Tribunal: DVI at [24]-[29]. The rules of evidence apply to the Applicant’s application: CAT Act, ss 33, 38(3).

  3. In DVI, the Tribunal did not need to determine whether the criminal or the civil standard of proof applied to a referral application, having not been satisfied that either standard had been met by the applicant (at [30]). This issue has not been agitated before the Tribunal in the present application. The determination of the present application does not turn on the standard of proof which applies to a referral application.

  4. In National Australia Bank Limited v Juric [2001] VSC 375 at [37]-[38], Gillard J held that, in order to prove a “civil contempt of court involving breach of an order of the court”, the plaintiff must prove beyond reasonable doubt that:

  1. an order was made by a court;

  2. the terms of the order are clear, unambiguous and capable of compliance;

  3. that the order was served on the alleged contemnor;

  4. the alleged contemnor has knowledge of the order;

  5. the alleged contemnor has breached the terms of the order.

  1. The first, third and fourth matters referred to by Gillard J, and by the Tribunal in DVI, are not in issue in these proceedings. The second and fifth matters are.

  2. The Applicant has represented herself in these proceedings. The directions of the Tribunal of 25 July 2022 noted that, as a matter of procedural fairness, the Applicant was referred to the decisions of the Tribunal in DVI v ZTT [2021] NSWCATEN 4 and Nowacki & Ors v S & Q Assets Pty Limited [2022] NSWCATEN 1 in which the principles governing referral applications were considered.

  3. Although the Applicant has represented herself in a number of courts and tribunals, including the Court of Appeal, she is a lay person and, with respect to her, has not clearly articulated the basis of her claim or revealed an appreciation of the principles which govern her application. The Tribunal has considered whether, howsoever expressed, the Applicant has adduced admissible evidence which is capable of establishing any of the grounds on which she relies: Ros v Commissioner of Police [2020] NSWCATAP 70. So doing involves no denial of procedural fairness to the Respondent.

Dispensing with a hearing

  1. The Applicant did not file any submissions in opposition to an order dispensing with a hearing of the proceedings. The submissions of the Respondent of 4 October 2022 asserted (at pars 101-105) that it was appropriate, for the reasons there advanced, for the Tribunal to make an order pursuant to s 50(2) of the CAT Act dispensing with a hearing. The parties were afforded procedural fairness with respect to the making of an order dispensing with a hearing by the directions of 25 July 2022.

  2. It was submitted by the Respondent (at par 105) that:

“The nature of a referral application, properly understood, tends against the holding of contested inter partes hearing. The referral power under s 73(5) of the NCAT Act is in the nature of “ministerial power” as evident by analogy from the Court of Appeal Judgment in Killen v Lane [1983] 1 NSWLR 171 at 177 and subsequent decisions; see also Bott v NSW Land and Housing Corporation (No 2) [2018] NSWCATCD 2 at 23. The Tribunal is thus not dealing with inter partes proceedings in the strict sense, and the Applicant is not formally a “party” as traditionally understood. While the procedure provided by the Tribunal, including the application for referral made by the Applicant, is a convenient means by which information can be drawn to the attention of the Tribunal, it would be consistent with the ministerial nature of the referral power sought to be exercised for the Tribunal to dispense with a hearing in the matter.”

  1. The Tribunal is satisfied that it is appropriate to dispense with a hearing as it is “satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal” as required by s 50(2) of the CAT Act.

  2. It is to be remembered that dispensing with a hearing does not imply that the Tribunal will not give proper, genuine and realistic consideration to the merits of the case (Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33), in the same way as it would if there had been an oral hearing. With respect to the Applicant, having regard to her written material, it is difficult to see how the Applicant could further advance her case by making oral submissions. On the contrary, a playing field which is already not “level” would potentially be even more so if the Tribunal conducted an oral hearing of the Applicant’s application.

Background

  1. To understand the Applicant’s claims, and the Respondent’s resistance of them, recording the background to the lengthy history of litigation between the Applicant and the Respondent is necessary. The submissions of the Respondent of 4 October 2022 (at pars 8-48) accurately record that background.

  2. On 13 June 2018, the Applicant made an application to the Respondent for access to information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

  3. On 18 June 2018, the Respondent advised the Applicant of the decision that the Applicant’s GIPA application was invalid as it sought access to “excluded information” pursuant to s 43 of the GIPA Act.

  4. On 18 June 2018, the Applicant applied for an external review by the Information Commissioner of the Respondent’s decision of 18 June 2018. On 19 July 2018, the Information Commissioner issued a review report, which concluded that the Applicant’s GIPA application was not a valid application, but only to the extent that it requested excluded information. The report recommended that the Respondent make a new decision.

  5. On 19 July 2018, the Applicant applied to the Tribunal for administrative review of the Respondent’s decision of 18 June 2018 (review application).

  6. On 3 August 2018, Legal Counsel for the Respondent advised the Applicant that, following the report of the Information Commissioner, the Respondent had again reviewed the information held in relation to her GIPA Act application. Attached to the advice were 53 documents which the Respondent no longer considered “excluded information”, which were released to the Applicant. The Respondent reiterated that all other information remained “excluded information”, and that the Applicant’s GIPA application was invalid to the extent that it sought that information.

  7. On 9 November 2021, the Applicant’s review application was listed for telephone directions. The Applicant appeared at the Directions Hearing, assisted by a Korean interpreter. At the Directions Hearing, the Tribunal identified that the only issue remaining between the parties was whether the documents that were not provided to the Applicant by the Respondent pursuant to the decision of 3 August 2018 constituted “excluded information” under the GIPA Act. Procedural directions were then made, including a direction that the Respondent file and serve “open evidence” and submissions, and file with the Tribunal any confidential evidence and submissions upon which the Respondent relied. The proceedings were listed for hearing on 31 January 2022.

  8. On 7 December 2021, the Respondent served the Applicant with its written submissions pursuant to the Tribunal’s directions of 9 November 2021. Annexed to the submissions were a “Schedule of Documents (Excluded Information)” and a “Schedule of Documents released to Ms Choi”. The Respondent separately provided a confidential version of the Schedule of excluded information to the Tribunal.

  9. On 4 January 2022, the Applicant sought an extension of time for the filing of her submissions, and an adjournment of the hearing date. The matter was listed for directions on 18 January 2022. The Applicant appeared and was again assisted by a Korean interpreter. The Respondent was legally represented. For reasons which do not assume present significance, the Tribunal made further directions and otherwise confirmed that the matter would proceed to hearing on 31 January 2022.

  10. On 31 January 2022, the Tribunal heard the matter. The Applicant appeared, again assisted by a Korean interpreter. The Respondent was legally represented. An extract from the transcript of the hearing (Respondent’s submissions at par 33) suggests that the Respondent had mistakenly failed to file the excluded documents on a confidential basis pursuant to order 2 of the orders of 9 November 2021 in accordance with the time stipulated by the order. The Tribunal asked how it could “determine whether or not they are properly excluded documents … if I don’t have them in front of me?”. Counsel for the Respondent informed the Tribunal that the documents could be produced “in relatively short order”.

  11. The matter was adjourned, in part because the excluded documents had not been provided on a confidential basis but also, as the Tribunal recorded, because of additional issues raised by the Applicant which meant that the hearing would not have concluded on that day in any event. The Tribunal rejected the Applicant’s request that the Tribunal make a “contempt ruling” as a result of the Respondent’s failure to produce the excluded documents on a confidential basis pursuant to the orders of 9 November 2021. The proceedings were adjourned part-heard to 28 March 2022.

  12. On 7 February 2022, the Tribunal issued amended directions, which included the Respondent being required to file “a bundle of its excluded documents marked “confidential” by 14 February 2022” (order 2). The orders also included a direction that the Respondent provide the Tribunal and the Applicant with documents evidencing the delegation to the officer who made the decision of 3 August 2018, and provided that, if the Applicant took issue with the validity of such delegation, or contended that the decision of 3 August 2018 was not a valid internal review decision, the Applicant could make submissions in that regard on or before 14 March 2022.

  13. On 10 February 2022, the Respondent filed a copy of the excluded information documents with the Tribunal in accordance with the directions of 7 February 2022. On 16 February 2022 the Respondent provided the Tribunal and the Applicant with evidence of its delegation to Legal Counsel who made the decision of 3 August 2018 (Respondent’s submissions at par 40).

  14. On 27 May 2022, the Applicant filed a submission, together with two documents which she asserted demonstrated that the Respondent’s Legal Counsel was not authorised to make the review decision of 3 August 2018. Those documents were “appointment, authorisation and delegation for special officers of the public administration division, made pursuant to s 10(6) of the Ombudsman Act 1974 on 17 April 2015” and “appointments, authorisations and delegations public administration division made on 31 July 2018”.

  15. The hearing resumed on 3 June 2022. The Applicant appeared, assisted by a Korean interpreter. The Respondent was legally represented. The Tribunal considered the Applicant’s contention that the Respondent’s Legal Counsel had not been authorised to make the decision of 3 August 2018. Based on the information before the Tribunal and having heard the submissions of each party, the Tribunal ruled that the Respondent’s Legal Counsel “was duly authorised to determine the internal review of the GIPA application and that the internal review decision was therefore valid”.

  16. At 2:00pm, the Tribunal conducted a confidential hearing with respect to the excluded documents and reserved its decision on that aspect of the proceedings. The public hearing resumed at 3:00pm. The Applicant then made further submissions and the parties were afforded an opportunity to file any further written submissions. The decision of the Tribunal was otherwise reserved.

  17. On 29 August 2022, the Tribunal published its decision on the Applicant’s review application (Choi v NSW Ombudsman [2022] NSWCATAD 292). The Tribunal made final orders in the following terms:

  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 [number] 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 [number] 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, including document [number] 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.”

    1. There is no evidence that the Applicant has successfully appealed against the Tribunal’s orders.

The Applicant’s application of 20 October 2022

  1. On 11 October 2022, the Applicant indicated to the Tribunal and the Respondent that, in her view, the Respondent should “file and serve a notice of resignation (Legal Counsel Ms Smith) before the Crown Solicitor’s Office of New South Wales trading as State government entity ABN 501 320 05544 acts for the respondent” and that “the party name should be amended to the Office of the Ombudsman trading as State Government Entity ABN 76 325 886 267” (Respondent’s emphasis).

  2. Under the heading “Ground 1”, the Applicant submitted:

  1. Case number PC22/29089 is an ancillary application of 2018/226998 under the Government Information (Public Access) Act 2009.

  2. Ms Smith was a legal representative of the respondent, a solicitor of the record in 2018/226998.

  3. On 25 July 2022, Ms Smith appeared at the directions hearing in PC22/29089.

  4. Thus, the respondent must file and serve a notice of resignation (Ms Smith) before filing and serving a notice of representation (the Crown Solicitor’s Office of New South Wales trading as State government entity ABN 501 32005544).”

    1. The Applicant further submitted:

  5. 2022/226998 is an administrative proceeding. The party is an agency. Thus, the agency’s legal name should be a party name.

  6. This matter could be before the High Court of Australia which requires a legal name including ABN number as a party.

  7. In New South Wales, administrative proceedings are civil matters. In civil proceedings, the applicants are entitled to choose the respondent. NSW Ombudsman is a natural person not an agency. I chose the Office of the Ombudsman trading as State Government Entity ABN 76 325 886 267.”

    1. The Applicant sought orders pursuant to s 53 of the CAT Act to the following effect:

  1. the notice of representation by a legal practitioner dated 18 August 2022 be revoked;

  2. the current party name “NSW Ombudsman (Office of the Ombudsman)” be amended to “Office of the Ombudsman trading as State Government ABN 763 258 86267”;

  3. the case number “PC22/29089” be amended to the case number “2018/00226998” which is the parent case number; and

  4. order 3 made 25 or 27 July 2022 be stayed.”

    1. The Respondent filed written submissions in opposition to the Applicant’s application on 5 December 2022.

    2. The Respondent submitted (at par 6) that the “allocation of proceedings numbers is properly a matter for the Tribunal’s internal administration”. The Respondent further submitted (at par 8) that the CAT Act “provides for different procedural rules to apply in the Tribunal’s enforcement jurisdiction, including the application of the rules of evidence. This suggests a legislative intention that an application for the exercise of a Tribunal’s enforcement jurisdiction be treated as separate proceedings: see Brown v The Owners - Strata Plan Number 82527 [2022] NSWCATAP 328”.

    3. The Tribunal agrees with the latter submission of the Respondent. Although arising out of earlier proceedings, and involving consideration of alleged breaches of orders made, or things allegedly done in those proceedings, the present proceedings are separate and distinct from those earlier proceedings and involve the exercise of a different jurisdiction to those proceedings. These are proceedings of the enforcement division of the Tribunal and are numbered as such. Declining to make the orders sought by the Applicant with respect to the numbering of the proceedings cannot adversely impact the rights of either party.

    4. The Respondent submitted (at pars 9-10) that the Notice of Representation by Legal Practitioner filed by the Crown Solicitor on behalf of the Respondent on 18 August 2022 specifically referred to the file number allocated to the present proceedings, which were proceedings in the Tribunal’s enforcement decision. It was submitted (at par 11) that the “fact that the Respondent was differently represented in substantive proceedings in which the alleged contempt was said to occur does not, in the Respondent’s submission, prevent them from engaging separate representation for the separate referral application”. The Tribunal agrees with that contention.

    5. The Applicant has not identified any legal or logical basis on which the Notice of Representation by Legal Practitioner should be “revoked”. Doing so would have no utility in any event – the Respondent could simply nominate another legal practitioner in place of the current legal representative. The Respondent’s further submissions (at pars 13-15) support rejection of this ground. The Applicant has not identified any basis in law or fairness on which the Tribunal could properly, effectively dictate to the Crown Solicitor which legal practitioner should be nominated to represent any agency or entity which the Crown Solicitor represents.

    6. It was further submitted (at par 12) that, “[t]o the extent that formal leave is required for the Respondent to be legally represented in these proceedings pursuant to [CAT Act, s 45(1)(b)(ii)], that leave is sought having regard to both the serious consequences of a referral application for the Respondent, and to the complexity of the law of contempt”. In support of that submission, the Respondent referred to the decision of the Tribunal in DVI and the decision of the Court of Appeal in Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277. The decision of the Tribunal in Justv Wu [2023] NSWCATEN 1 provides further support for the Respondent’s submission.

    7. Particularly having regard to the potential consequences for the Respondent of a referral to the Supreme Court to be dealt with for contempt, the Tribunal will, to the extent that it might be necessary, grant leave to the Respondent to be legally represented pursuant to s 45(1)(b)(ii), to which the Respondent’s submissions were clearly intended to refer.

    8. With respect to the naming of the Respondent, it was submitted that there was no occasion for the Respondent to be renamed (at pars 16-19). It was further submitted (at par 20) that “[t]he fact that the Office of the Ombudsman is an entity listed with an ABN for purposes unrelated to the decision under administrative review, or to the alleged contempt of the Tribunal, would not appear to be presently relevant. Similarly, the Applicant’s submissions in respect to the functions of the Audit Office would not appear to be relevant to the naming of the respondent in the current application”.

    9. The Tribunal agrees that, at least for present purposes, the Respondent is appropriately and adequately identified and named. Put simply, if the Applicant has adduced admissible evidence capable of establishing that the Respondent is in breach of orders of the Tribunal, the referral application will be granted. In view of the Respondent’s submissions in this application, it is difficult to see how, if referred to the Supreme Court for contempt, the Respondent would be permitted to suggest that another entity should be liable if a contempt were proved. Although it is unnecessary to express a concluded view, it may even be that renaming the Respondent in these proceedings could adversely affect the Applicant’s chances of successfully prosecuting a contempt application in the Supreme Court if her referral application is successful. Nothing to which the Applicant has referred persuades the Tribunal that it is necessary or appropriate to order the change in name of the Respondent for which she contends.

    10. Events have moved on since the Applicant sought the stay of procedural order 3 made on 25 July 2022, in so far as the Applicant has filed further written submissions and attached more than 400 pages of supporting documents to them on 3 November 2022. Nothing there raised by the Applicant suggests that she has not been afforded procedural fairness with respect to the operation of the orders of 25 July 2022.

Ground 1

  1. The Applicant alleged that the Respondent was in contempt of the Tribunal on the basis that the Respondent:

“Failed to comply with order 1 of the orders made on 9 November 2021 by the Tribunal, as constituted by Senior Member Ransome, requiring the respondent to file and serve open evidence and submissions, including a schedule of documents, on or before 7 December 2021.”

  1. Order 1 of the Tribunal of 9 November 2021 provided:

“NSW Ombudsman is to give to the Tribunal and the applicant all open evidence and submissions, including a schedule of documents released to the applicant in response to her access application and documents withheld, on or before 7 December 2021.”

  1. In support of this ground, the Applicant submitted, as was the case with respect to each of her four other grounds, that:

  1. The Respondent committed contempt in the face of, in the hearing of the Tribunal;

  2. The Respondent even admitted its disobeying. No doubt of lie by the Respondent or a “clear” evidence of contempt of the Tribunal. Thus, the Respondent’s conduct is “capable” of amounting to contempt of the Tribunal;

  3. The purpose of the disobeying and telling a lie was to conceal the information under the GIPA Act. Thus, the matter is extremely “serious” and the power to refer thus being “used sparingly”;

  4. My GIPA access application was filed in 2018, 4 years ago. The information was to use for my other proceedings in 2018/299612 under the Anti-Discrimination Act and the other matter at the Court of Appeal (2022/170633 and 2022/00127132 Choi v Victims Services, Department of Communities and Justice and the Attorney General of New South Wales). However I could not use the material sought for my proceedings because the matter has been delayed much more due to the Respondent’s conduct linking contempt. Also, I had to put [in] extra efforts. Additionally, my health, financial situation and enjoyment have been damaged.”

    1. The Applicant’s submissions filed on 3 November 2022 did not further engage with this ground.

    2. For the reasons there advanced, the Respondent submitted (at pars 57-62) that the Applicant had not made out this ground.

    3. The Respondent submitted (at par 58) that the evidence adduced by the Applicant was not “capable of establishing, even as a first step, that the Respondent failed to comply with order 1 of the Tribunal’s orders of 9 November 2021”, and that the Respondent “did in fact comply with order 1”.

    4. By reference to the background which the Tribunal has set out earlier in these reasons, the Respondent submitted (at par 59) that the submissions and annexed open schedules envisaged by the orders of 9 November 2021 had been served on the Applicant on 7 December 2021, and again sent to the Applicant on 13 and 14 December 2021.

    5. The Respondent submitted (at par 60) that the Applicant’s reference to documents being provided to her on 7 January 2022 “seemingly must relate to the Respondent having provided her with a further electronic copy of the 53 documents that had already been provided to her on 3 August 2018”. Although that may be the case, no part of the Tribunal’s decision in these proceedings involves or requires finding that it was.

    6. The Respondent submitted (at par 61) that, contrary to the Applicant’s contention, the orders of the Tribunal of 9 November 2021 did not require the Respondent to provide her with a further copy of the released information by 7 December 2021. That submission is correct having regard to the terms of the order.

    7. The Respondent further submitted (at par 62) that the provision of a schedule “in a form different from that identified or preferred by the Applicant does not constitute conduct capable of amounting to contempt of the Tribunal”.

Consideration

  1. It appears likely that this ground is motivated by observations of the Tribunal to the Respondent’s legal representative at the hearing on 31 January 2022. As the transcript of the proceedings of that date records (pp 35-36), the Tribunal referred to order 2 of the orders of 9 November 2021, which required the Respondent to “give the Tribunal all confidential evidence and submissions (marked “Confidential”) on or before 7 December 2021”. When asked about the apparent absence of such documents, the Respondent’s legal representative replied that there were “no confidential submissions to make” and that the Respondent “did not understand that order to require us to file the documents that were considered excluded”. The Tribunal responded to that explanation by saying “Well, with all due respect, how can the Tribunal determine whether or not they are properly excluded documents under sch.2 if I don’t have them in front of me?”.

  2. As the transcript confirms, notwithstanding that difficulty, the matter could not conclude on 31 January 2022 because the Applicant had “raised issues that couldn’t be completed today anyway”. More significantly for present purposes, the Tribunal on 31 January 2022 declined to make a “contempt ruling” as then sought by the Applicant, or to otherwise censure the Respondent with respect to any failure to comply with the orders of 9 November 2021. What is meant by “contempt ruling”, and whether the Tribunal had jurisdiction or power to make such a ruling is not relevant for present purposes. What is relevant is that the Tribunal implicitly accepted that any failure by the Respondent to comply with the orders of 9 November 2021 was not deliberate or intentional, and did not incline the Tribunal to endeavour to sanction the Respondent in any way. That impression is confirmed by the fact that the Tribunal did not make further directions with respect to the matters dealt with by the orders of 9 November 2021.

  3. The Tribunal agrees with the submissions of the Respondent that the evidence upon which the Applicant relies is not capable of establishing that the Respondent breached the orders of the Tribunal, or that the Tribunal found that the orders had been breached. To the extent that the orders were in fact breached, the evidence in these proceedings establishes, at its highest, that through a misunderstanding, or oversight by the Respondent, or the Respondent’s legal advisers as to what documents the Respondent was obliged to file and serve, the Respondent may not have complied with the Tribunal’s orders. If there was a breach of the orders, the evidence is not capable of establishing that it was deliberate or intentional, rather than casual, accidental or unintentional.

  4. In circumstances where the Tribunal dealing with the proceedings in which the orders allegedly breached by the Respondent did not make findings or orders in that regard, referring this ground to the Supreme Court would be problematic. Even if the alleged conduct of the Respondent was capable of establishing a breach of the Tribunal’s orders, the Tribunal would not exercise its discretion to refer the Respondent to the Supreme Court to be dealt with for contempt. The circumstances in which the alleged breach occurred, the absence of any suggestion that the Applicant was prejudiced by it, and fact that only “serious” alleged contempts should be referred to the Supreme Court are cogent reasons for not doing so in this case.

  5. For the foregoing reasons, the evidence relied upon in support of this ground is not capable of securing a finding of contempt, even on the civil standard of proof. Even if it were, and it were otherwise appropriate to refer the Respondent to the Supreme Court, as the evidence establishes that the Respondent has rectified any breach of the orders, and done so promptly, referring the Respondent to the Supreme Court for contempt would be unlikely to have any utility, as the Respondent would have purged any contempt alleged by the Applicant.

Ground 1(b)

  1. Ground 1(b) of the Applicant’s application alleged that the Respondent had committed contempt of the Tribunal on the basis that the Respondent:

“… at the listing on 18 January 2021, told “a lie” to the Tribunal, as constituted by Senior Member Riordan, by stating that the Respondent had filed certain “excluded information” with the Tribunal.”

  1. As recorded above, other than in submissions made in support of all her referral grounds, the Applicant did not specifically engage with this ground.

  2. It is readily apparent that the references by both parties to 18 January 2021 are intended to refer to the Directions Hearing on 18 January 2022.

  3. The submissions of the Respondent (at pars 78-82) asserted that the Applicant’s allegations were “without merit, and should not have been made” and (at par 79) that there was no evidence before the Tribunal to establish that the Respondent’s legal representative “lied to the Tribunal at the Directions Hearing on 18 January 2021”.

  4. The Respondent disputed the Applicant’s version of what was said by the Tribunal or the Respondent’s legal representative on that date and cited, accurately the Tribunal accepts, passages from the transcript of that day.

  5. The Respondent submitted (at par 82) that there was “no basis upon which to find that Ms Smith’s reported affirmative response to Senior Member Riordan was deliberately false, or even that it was inaccurate”, for the reasons which the Respondent advanced. It was further submitted that “as at the Directions Hearing on 18 January 2022 the Respondent had filed all the materials upon which it intended to rely, in discharge of the clear terms of the order as understood by the Respondent. This included the open and confidential versions of the schedule of documents”, as described earlier in the submissions of the Respondent (at pars 21-23).

Consideration

  1. Although there is a material distinction between making statements which are factually untrue or inaccurate, and making such statements with the intention that they be taken to be true, or “lying”, it is unnecessary for present purposes to consider that distinction. At their highest, the statements made to the Tribunal on behalf of the Respondent on 18 January 2022 may have been inaccurate, or factually untrue. Without more, and there is no more, that does not mean that the Respondent’s legal representative “lied”. There are obvious explanations for any inaccurate statement made to the Tribunal by the Respondent’s legal representative which do not involve any impropriety. The Respondent’s conduct with respect to the provision of documents, including “excluded information” to the Tribunal, is inconsistent with a finding that the Respondent, through the Respondent’s legal representative, “lied” to the Tribunal, intentionally misrepresented matters to the Tribunal, or misled it.

  2. The Applicant has not adduced evidence capable of establishing this ground.

Ground 1(c)

  1. Ground 1(c) alleged that the Respondent has committed contempt of the Tribunal on the basis that the Respondent:

“… failed to comply with Tribunal orders, dated 9 November 2021 and 18 January 2022, by not filing confidential documents with the Tribunal.”

  1. As with earlier grounds, other than in the submissions recorded in support of ground 1, the Applicant did not make specific submissions in support of this ground.

  2. The Respondent submitted (at pars 63-77) that the Applicant could not make out this ground. The Respondent submitted (at par 67) that “the Applicant’s referral application and affidavit suggest that her substantive complaint is that the Respondent failed to comply with order 2 because the Respondent did not provide the Tribunal with a copy of the excluded information documents themselves prior to (or at) the hearing on 31 January 2022”. The Tribunal also infers that to be the substance of this ground.

  3. The Respondent submitted (at par 68) that it was “clear from the face of the orders made and the transcript of the Directions Hearing on 9 November 2021, set out at [19] to [20] above, that the Respondent was not directed to file the excluded information under order 2” and that the Tribunal “expressly declined to make an order of that nature” (Transcript 9 November 2021, p 15, lines 16-17), and “instead required only that the Respondent file any confidential evidence and submissions upon which it relied”.

  4. The Respondent relied (at par 69) on statements made by the legal representative for the Respondent to the Tribunal on 31 January 2022 and the Tribunal’s statement on 9 November 2021 that it was “not making a direction that they have to file them”. It was accordingly submitted by the Respondent (at par 71) that “while it may be unfortunate that a set of the excluded documents was not provided by the Respondent to the Tribunal at or in advance of the hearing on 31 January 2022 there was no order of the Tribunal that required this to be done and which the Respondent could be said to have wilfully disobeyed”.

Consideration

  1. The Applicant has not identified an order requiring the Respondent to do more than it did, “unfortunate” though the failure to provide documents containing excluded information on or before the hearing on 31 January 2022 may have been.

  2. The Tribunal agrees with the submission of the Respondent (at par 72) that the obligations imposed on the Respondent by order 2 of the orders of 9 November 2021 were not “sufficiently clear to support enforcement” of any expectation by the Tribunal that the Respondent would produce particular documents, even if the requisite standard of proof for the Applicant’s contempt application is the civil standard. More significantly, if the order was sufficiently clear to be capable of enforcement by way of a contempt application, the evidence before the Tribunal is not capable of establishing, even on the civil standard, that any breach of the order by the Respondent was other than “casual, accidental or unintentional”.

  3. The Tribunal also agrees with the Respondent’s submission (at par 73) that the terms of the directions made on 31 January 2022 contrasted significantly with the terms of order 2 of the orders of 9 November 2021. There is merit in the Respondent’s further submission (at par 74) with respect to the Applicant’s ground in reliance upon the orders of 18 January 2022, that it was “similarly apparent” that those orders “included no clear requirement for the Respondent to file the excluded documents with the Tribunal”.

  4. Although the Respondent also relied (at pars 75-76) on the inability of the Tribunal to conclude the proceedings on 31 January 2022 in any event by reason of the issues which the Applicant raised that could not be completed on that day, the Tribunal’s findings in these proceedings are not reliant upon that circumstance.

  5. The Applicant has not adduced admissible evidence capable of establishing this ground.

Ground 1(d)

  1. Ground 1(d) alleged that the Respondent has committed contempt of the Tribunal on the basis that the Respondent:

“… withdrew confidential documents that had been filed with the Tribunal.”

  1. As with earlier grounds, the Applicant did not engage with this ground beyond the extent to which she did in her submissions of 5 September 2022.

  2. The Respondent submitted (pars 84-87) that the evidence was not capable of establishing this ground, even on the civil standard of proof. As submitted by the Respondent (at par 86), other than the Applicant’s allegation, there is no evidence capable of suggesting, much less capable of establishing, that the Respondent “somehow withdrew, from the Tribunal’s files, confidential material that had previously been provided”. The improbability of a legal practitioner, much less the legal representative of a model litigant removing documents from the file of the Tribunal, and the absence of any suggested or likely motive for doing so, are relevant to evaluating the capability of this ground being made out.

  3. It is unnecessary to speculate with respect to how the Tribunal came to make the statements it did on 31 January 2022. The exchanges of that day recorded (Transcript 18 January 2022, p 8, line 33 - p 9, line 9):

“APPLICANT:

(INTERPRETER) May I ask one question, Member? I understand that the Judge Ransome ordered the Respondent to - or the Ombudsman to hand in order 2 related documents by 7 December last year, have they been handed in, may I know?

SENIOR MEMBER RIORDAN:

There is a large bundle of documents in the file, which I have not had time to read through because this is a directions hearing, not a hearing. There are documents that are marked “confidential”, the Tribunal will not access those until the confidential hearing commences. But in any event, that order was for the Ombudsman to give those to the Tribunal, not to the Applicant.

APPLICANT:

(INTERPRETER) Could you please ask, Member, the Respondent, whether they submit all the documents ordered by Senior Member Ransome on November - what was the date?

SENIOR MEMBER RIORDAN:

9 November.

APPLICANT:

(INTERPRETER) Ordered on the ninth, yes, 9 November.

SENIOR MEMBER RIORDAN:

Yes, Ms Smith has answered yes.”

  1. On 31 January 2022 the following exchange occurred (Transcript, p 35, line 9 – p 36, line 9):

“SENIOR MEMBER RIORDAN:

… Mr Wong, I can’t locate a copy of the actual document; have they been lodged on a confidential basis?

WONG:

No, no, they have not.

SENIOR MEMBER RIORDAN:

Is there any reason for that?

WONG:

Yes, there’s been a direction by Senior Member Ransome in November, on 9 November, the question of whether or not we were required to lodge the documents was raised a couple of occasions by the Applicant. Senior Member Ransome made it clear that we were to lodge only a copy of an unredacted schedule describing the documents.

SENIOR MEMBER RIORDON:

Right. It just makes it a little difficult for me to determine whether or not they’re excluded documents if there’s no documents. Just let me look back at Senior Member Ransome’s notes.

WONG:

I can say we certainly have no objection to lodging the documents with the Tribunal, we understood we were not required to.

APPLICANT:

(INTERPRETER) That was different from what I was told last time.

SENIOR MEMBER RIORDAN:

I will call on you in a moment, Ms Choi, just give me a moment.

APPLICANT:

Thank you.

SENIOR MEMBER RIORDAN:

I’m just looking for Senior Member Ransome’s notes on the file. There is a lot of paper in this file, so bear with me. Mr Wong, Senior Member Ransome’s direction no. 2, dated 9 November, says “The New South Wales Ombudsman is to give to the Tribunal all confidential evidence and submissions marked “confidential” on or before 7 December 2021”.

WONG:

Yes, we had no confidential submissions to make and we did not understand that order to require us to file the documents that were considered excluded.

SENIOR MEMBER:

Well, with all due respect, how can the Tribunal determine whether or not they are properly excluded documents under sch.2 if I don’t have them in front of me?

WONG:

Certainly we understand, and as I indicated we certainly have no objection to doing so and I can do so in relatively short order.”

  1. If it be the fact, which there is no admissible evidence capable of establishing, that documents had “gone missing” from the Tribunal’s file, that does not suggest, much less establish, that involved any misconduct by the Respondent or the Respondent’s legal representatives – busy courts and tribunals misplace documents on occasion. Nothing emerging from the transcript is capable of advancing this ground. Significantly, the Tribunal did not suggest, or imply that any documents had been removed from its file. The Applicant has failed to demonstrate that this ground is capable of success, even on the civil standard of proof.

Ground 1(e)

  1. Ground 1(e) alleged that the Respondent has committed contempt of the Tribunal on the basis that the Respondent:

“… failed to comply with an order 2 of the Tribunal orders of 31 January 2022 requiring the Respondent to provide evidence of delegated authority, by failing to provide relevant delegation instruments.”

  1. The Tribunal has earlier referred to the submissions of the Applicant with respect to the delegation of authority by the Respondent.

  2. The Respondent identified (at par 90), accurately in the Tribunal’s view, the documents relied upon by the Applicant in support of her contention that Ms Smith had no power to make the review decision of 3 August 2018. The Respondent submitted (at par 91) that the issue raised with respect to Ms Smith’s delegated authority to make the decision of 3 August 2018 was “dealt with comprehensively” at the hearing on 3 June 2022, at which time the Tribunal determined, and informed the Applicant that “[t]he delegation dated 13 June 2013 appointed Legal Counsel for the New South Wales Ombudsman as a special officer and appointed them to write and conduct an internal review under the GIPA Act. That delegation has not been revoked by the later delegations that she has filed with her submissions” (Transcript 3 June 2022, p 55, lines 35-38).

  3. The Respondent also relied upon the Tribunal’s reasons in its decision of 29 August 2022 (Choi v NSW Ombudsman [2022] NSWCATAD 292 at [66], [146]-[147]). The Tribunal recorded at [66]:

“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.”

  1. The Tribunal further recorded at [146]-[147]:

  1. Based on the evidence before me, I am satisfied that Ms Smith was duly authorised by the respondent to make her decision dated 3 August 2018 and that the relevant instrument of delegation was made on 13 June 2013. I am also satisfied that this instrument of delegation remained in force until 9 January 2020, when a new instrument superseded it.

  2. The applicant challenged the validity of the instrument of delegation and Ms Smith’s decision dated 3 August 2018 on many grounds, which are discussed below. However, I accept the respondent’s argument that the relevant instrument of delegation was validly made in accordance with the Ombudsman Act 1974 (NSW) (the Ombudsman Act).”

Consideration

  1. The Tribunal agrees with the submission of the Respondent (at par 92) that the Applicant has not adduced evidence capable of establishing that the Respondent knowingly failed to file one or more particular documents which by an order of the Tribunal the Respondent was compelled to file. The evidence adduced by the Applicant is not capable of establishing this ground. Even if, which has not been established, the Tribunal’s ruling on the issue may have been vulnerable, the simple, and determinative reality is that the Respondent filed documents which fell within the ambit of the order on which the Applicant relies. That is an insurmountable obstacle to the potential for this ground to succeed.

Additional ground raised by the Applicant by email to the Tribunal on 13 September 2022

  1. The further ground sought to be raised by the Applicant by her email of 13 September 2022 is based upon an allegation by the Applicant that she received incorrect material from the Respondent pursuant to the final Tribunal orders of 29 August 2022.

  2. The Respondent submitted (at par 96) that, on 9 September 2022, the Respondent provided copies of the attachments to document number 49 in its Further Amended Confidential Schedule, a copy of which was attached to the material filed by the Respondent in the present proceedings.

Consideration

  1. Nothing to which the Applicant has referred is capable of establishing either that the Respondent failed to comply with orders of 29 August 2022, or that, if she was not provided with such documents, that such failure was other than casual, accidental or unintentional. Moreover, if the Applicant was not provided with any document which she was entitled to receive pursuant to the orders of 29 August 2022, she could readily have gone back to the Tribunal to enforce the orders.

  1. As the Respondent submitted, the additional ground not having merit, leave to raise it should be refused.

Conclusion

  1. In the circumstances, and for the reasons recorded above, the Applicant has not discharged the onus she bears of establishing conduct on the part of the Respondent which is capable of amounting to a contempt of the Tribunal. Her application will accordingly be dismissed.

Orders

  1. To the extent necessary, pursuant to s 45(1)(b)(ii) of the Civil and Administrative Tribunal Act 2013 (NSW) leave is granted to the Respondent to be legally represented.

  2. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal dispenses with a hearing of the application filed on 2 June 2022.

  3. The application of the Applicant filed on 2 June 2022 is dismissed.

  4. Leave to amend the application filed 2 June 2022 to raise an additional ground is refused.

  5. Any party seeking an order for costs of the proceedings file and serve written submissions not exceeding 5 pages in length in support of such application within 28 days of these orders.

  6. A party resisting an application for costs file and serve written submissions not exceeding 5 pages in length in opposition to such application within 56 days of these orders.

  7. Any party opposing an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of any costs application include in any written submissions filed pursuant to these orders submissions in opposition to such order.

**********

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

Amendments

17 May 2023 - Coversheet amended in representation

Decision last updated: 17 May 2023

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0