Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CEU v University of Technology Sydney; University of Technology Sydney v CEU [2019] NSWCATAD 11 Hearing dates: 18 December 2018 Date of orders: 18 December 2018 Decision date: 08 January 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: L Pearson, Principal Member Decision: (1) Application 2017/00211860 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013. (2) Application 2018/00051163 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013. (3) Application 2018/00129206 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013. (4) Application 2018/00220836 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013. (5) Application 2018/00256700 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013. (6) Application 2018/00274005: By consent, pursuant to s 110 of the Government Information (Public Access) Act 2009 CEU is not permitted to make an access application to the University of Technology Sydney without first obtaining the approval of the Tribunal. Catchwords: PRACTICE AND PROCEDURE – guardian ad litem appointed for applicant – withdrawal of applications – dismissal of proceedings – restraint order Legislation Cited: Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Cases Cited: CEU v University of Technology Sydney [2018] NSWCATAD 185 Texts Cited: Nil Category: Principal judgment Parties: 2017/00211860, 2018/00051163, 2018/00129206, 2018/00220836, 2018/00256700: CEU (Applicant) University of Technology Sydney (Respondent) 2018/00274005: University of Technology Sydney (Applicant) CEU (Respondent) Representation: Counsel: A Flecknoe-Brown (Applicant in 2018/274005; Respondent in all other matters) Solicitors: Barry Nilsson (Applicant in 2018/274005, Respondent in all other matters) B Hoyles, Guardian ad Litem (Respondent in 2018/274005 and Applicant in all other matters) File Number(s): 2017/00211860, 2018/00051163, 2018/00129206, 2018/00220836, 2018/00256700, 2018/00274005 Publication restriction: Publication of the name of the applicant in 2017/211860, 2018/51163, 2018/129206, 2018/220836, 2018/256700 and the respondent in 2018/274005 is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. REASONS FOR DECISION 1. These are the reasons for decision for the orders made on 18 December 2018 in six proceedings between CEU and the University of Technology Sydney (UTS). 2. The proceedings all relate to CEU's enrolment between April 2015 to December 2016 as a student in a Bachelor of Nursing degree at UTS, and the discontinuance of that enrolment by UTS after deciding CEU was unsuited for further clinical placements. CEU could not graduate without completing those placements and she returned to live in Korea. 3. Proceedings 2018/51163 and 2018/220836 are applications by CEU for administrative review of decisions under the Government Information (Public Access) Act 2009 (GIPA Act). Proceedings 2017/211860 are the referral to the Tribunal by the President of the Anti-Discrimination Board at the request of CEU of a complaint alleging discrimination on the ground of disability in education under the Anti-Discrimination Act 1977 (AD Act), that complaint having been declined under s 92 of the AD Act as lacking in substance. Proceedings 2018/129206 are an application by CEU under the Privacy and Personal Information Protection Act 1998 relating to disclosure of CEU's health information. Proceedings 2018/256700 are an application by CEU for orders under Part 5 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) including referral under s 73 for contempt. 4. Proceedings 2018/274005 are an application by UTS for an order under s 110 of the GIPA Act that CEU not be permitted to make an access application without first obtaining the approval of the Tribunal. Appointment of a Guardian ad Litem 1. On 14 August 2018 Deputy President Hennessy appointed a person to act as guardian ad litem (GAL) for CEU in proceedings 2017/211860, 2018/51163, 2018/129206 and 2018/220836, pursuant to s 45(4) of the NCAT Act: CEU v University of Technology, Sydney [2018] NSWCATAD 185. In her reasons for decision Deputy President Hennessy outlined at paragraphs [7]-[13] the legislative basis for appointment of a GAL and the principles to be applied; considered at [14]-[26] the medical and other evidence as to the nature and extent of CEU's disability and incapacity to represent herself, including her behaviour when conducting proceedings; and at [27]-[30] considered CEU's views. Deputy President Hennessy found at [34] that CEU has a disability that means she is incapable of representing herself in the four proceedings; and at [35]-[39] gave her reasons as to why it was appropriate in the exercise of discretion to appoint a GAL. Those reasons included that CEU is unable to confine her written evidence and submissions to issues in dispute, instead making unfounded or irrelevant allegations including claims of forgery and fraud; that CEU "does not have the capacity to decide whether or not is in her best interests to settle proceedings", referring to an earlier mediation; that there is a pattern of behaviour involving the creation of excessively burdensome written material; and that one consequence of that has been the making of two costs orders against CEU based on her conduct of prior proceedings in a way that unnecessarily disadvantaged the respondent. 2. Deputy President Hennessy summarised the role of the GAL: 40. The GAL must always act in a way that is in the best interests of CEU but he or she does not have to act on CEU's instructions. That means that the GAL does not have to do what CEU asks them to do. If the parties agree to settle the case, the Tribunal must take into account the interests of CEU before approving any settlement: NCAT Regulation, cl 37(1). 41. When a GAL is appointed the other parties and their lawyers must communicate directly with the GAL. They must give all documents to the GAL, or their lawyer if they have one, as if the GAL is the party. The GAL is able to instruct a lawyer on a pro bono basis if that person decides to do so. 1. Deputy President Hennessy noted that an order had been made prohibiting the publication of CEU's name in the proceedings under the Privacy and Personal Information Protection Act, and she did not identify her by name in the reasons for the decision to appoint a GAL. The same course has been adopted in these reasons. 2. Mr Bill Hoyles was appointed from the Guardian Ad Litem Panel by the Secretary of the Department of Justice in accordance with reg 10 of the Civil and Administrative Tribunal Regulation 2013 as CEU's GAL. On 9 October 2018 CEU consented to the appointment of a GAL in proceedings 2018/256700, and Mr Hoyles was subsequently appointed. 3. In proceedings 2018/274005, the application by UTS for an order under s 110 of the GIPA Act, Mr Hoyles was appointed as GAL for CEU on 17 September 2018. Other proceedings between the parties 1. As summarised by Deputy President Hennessy, there have been previous proceedings initiated by CEU against UTS: 21. The issue of whether a GAL should be appointed first arose in CEU's complaint of disability discrimination and a third GIPA review (proceedings No. 2018/51163). 22. As well as the four proceedings currently in the Tribunal, CEU had brought other proceedings against both UTS and other respondents. She initially applied for a review of conduct under the Privacy and Personal Information Protection Act in September 2015. At that stage she was represented by counsel. The Tribunal decided that UTS had not breached CEU's privacy and took no further action: CEU v University of Technology Sydney [2017] NSWCATAD 79. She made a second privacy application in which she was partly represented by counsel and was again unsuccessful: CEU v University of Technology Sydney [2018] NSWCATAD 13. 23. In each of those privacy reviews, the Tribunal ordered CEU to pay part of UTS's costs: CEU v University of Technology Sydney [2017] NSWCATAD 280; CEU v University of Technology Sydney [2018] NSWCATAD 53. One of the reasons for those orders was the excessive and unnecessary written material provided by CEU. 24. CEU has also brought two previous reviews of decisions under the Government Information (Public Access) Act: CEU v University of Technology Sydney [2017] NSWCATAD 198 and CEU v University of Technology Sydney [2018] NSWCATAD 7. 25. In addition, CEU has brought a privacy review against the NSW Ombudsman's Office (CEU v Ombudsman [2017] NSWCATAD 267) and a GIPA review against the Northern Sydney Local Health District (No. 2017/157104). 26. In May 2017, UTS applied to the Tribunal for the exercise of its enforcement jurisdiction by referring two proceedings (the disability discrimination complaint and the second GIPA review) to the Supreme Court for the consideration of whether CEU should be charged with contempt: NCAT Act, s 73(5). UTS agreed to withdraw that application after the Tribunal made orders that CEU not contact any person at all in relation to those proceedings other than the solicitor for UTS. Mediation 1. A mediation was conducted by the Tribunal in these proceedings between CEU and UTS on 26 November 2018. Settlement was reached in the five matters initiated by CEU and in the proceedings by UTS for an order under s 110 of the GIPA Act. A Heads of Terms document was signed by Mr Hoyles as GAL for CEU, and on behalf of UTS. The terms were to be incorporated into a deed of release (the Deed). The Deed has been drafted, and was signed by Mr Hoyles and on behalf of UTS on 10 December 2018. 2. The Tribunal may make orders (including an order dismissing an application) to give effect to any agreed settlement reached by the parties if the terms of the agreed settlement are in writing signed by or on behalf of the parties, and the Tribunal is satisfied it would have the power to make the decision in the terms of or consistent with the agreed settlement: s 59 NCAT Act. In doing so, the Tribunal must take into account the interests of any vulnerable person, a term defined to mean a person who is totally or partially incapable of representing himself or herself in proceedings because the person is, inter alia, psychologically or otherwise disabled: rule 37 Civil and Administrative Tribunal Rules 2014. Resolution of the proceedings 1. By letter to the Tribunal dated 10 December 2018 Mr Hoyles noted that the six matters had been the subject of the mediation and that he had been provided with a broadly acceptable Deed of Settlement and Release for signature that reflected the Agreement reached at mediation. Mr Hoyles withdrew each of the five applications brought by CEU and requested that they be dismissed and consented to the orders agreed for the UTS application. The proceedings were listed for 18 December 2018 to consider whether it was in the best interests of CEU that each proceeding be dismissed. At the request of UTS, proceedings 2018/274005 which formed part of the agreed settlement reached at mediation, were also listed on 18 December 2018. 2. At the hearing on 18 December 2018 Mr Hoyles explained why he is of the view that dismissal of CEU's applications and the making of the order under s110 of the GIPA Act are in the best interests of CEU. Mr Flecknoe-Brown stated the UTS position on resolution of all six matters by dismissal of CEU's applications and the making of an order under s 110. CEU explained her reasons for opposing the dismissal of the applications and the making of the s 110 order. The GAL's position 1. Mr Hoyle stated that he has received 6,000 pages of documents relating to CEU's proceedings against UTS, and 141 emails from CEU including multiple different demands as to the orders she seeks. In an email of 30 October 2018 CEU stated that she does want the Tribunal proceedings to stop. He is aware that there was a resolution reached in a mediation in February 2018 that was not formalised, before a GAL was appointed. He has had legal advice through the Legal Assistance Referral Scheme. He considers that of the five applications against UTS only the discrimination complaint has any possibility of a successful outcome for CEU, and the other applications do not. The agreement reached at mediation in November 2018 has achieved some financial settlement in favour of CEU including in relation to previous costs orders, and an outcome that both concludes the matters and gives CEU a choice either to remain in Korea, or to return to Australia and find employment. There is the potential of further costs orders should the present applications continue. 2. His main concern is as to CEU's mental state. He has observed a deterioration in her correspondence which has included recent abusive and defamatory emails and the ventilation of conspiracy theories. He does not consider it is in CEU's best interests to continue with the matters. It is also not in CEU's best interests to continue to lodge multiple access applications under the GIPA Act, noting that the s110 order does not stop CEU from taking action against UTS. CEU's position 1. CEU opposes dismissal of her applications and the making of an order under s 110. She has communicated her reasons for that position in correspondence to the Tribunal, including detailed submissions on 4 December, 9 December and 14 December 2018. 2. Since the mediation CEU has made three Applications for Miscellaneous Matters to the Tribunal, one dated 6 December 2018 and two dated 14 December 2018. In those applications CEU seeks orders (1) to "reverse" the decision to appoint a GAL; (2) to revoke the GAL's decision; and (3) to postpone the hearing on 18 December 2018. 3. CEU argues that the Tribunal should wait until the ICAC has concluded its investigation into UTS. CEU states that Mr Hoyles is withdrawing her proceedings, and has signed the Deed, against her interests. In her communications of 4, 9 and 14 December 2018 CEU makes detailed comment as to her disagreement with several provisions of the Deed. She says it is not in her interests that her applications be dismissed as Mr Hoyles has signed the Deed even though she has given him the correct information. She opposes the making of the s 110 order as she has rights which nobody can disturb and she does not want to have to get permission from the Tribunal to make an access application. Dismissal of proceedings 2017/211860, 2018/51163, 2018/129206, 2018/220836, 2018/256700 1. The Tribunal may dismiss proceedings under s 55(1) of the NCAT Act "(a) if the applicant…withdraws the application…to which the proceedings relate". The Tribunal has written notice of withdrawal of proceedings 2017/211860, 2018/51163, 2018/129206, 2018/220836, and 2018/256700 dated 10 December 2018 and signed by Mr Hoyles in his capacity as GAL appointed pursuant to orders made by the Tribunal under s 45(4)(a) of the NCAT Act. 2. While CEU opposes the course of action undertaken by the GAL, and wants his appointment revoked, she has not lodged an internal appeal from the decision to appoint a GAL in proceedings 2017/211860, 2018/51163, 2018/129206, 2018/220836, and 2018/274005, and consented to the appointment of a GAL in proceedings 2018/256700. CEU states that she has gained more capacity to represent herself, however in support she has provided only a copy of the medical certificate dated 24 May 2018 considered by Deputy President Hennessy. The Tribunal has no power to "revoke" the appointment of a GAL. 3. As to the request to postpone the hearing, the Tribunal is not persuaded that acknowledgement by the ICAC in an email dated 18 December 2018 (forwarded to the Tribunal by CEU) that it has received complaints of corrupt conduct, and may investigate after an initial assessment, would be a sufficient basis to adjourn resolution of these proceedings. 4. The Tribunal has received several communications from CEU that support Mr Hoyles' concerns as to her escalating and increasingly intemperate communications alleging corrupt conduct against an increasingly wide range of individuals. The Tribunal concurs with his concern as to the impact on CEU's mental health of continuation of the proceedings. CEU's GAL has, with the benefit of legal advice, formed a view that the matters do not have sufficient merit to warrant their continuation. 5. Mr Hoyles' approach to the mediation was to attempt to reach a practical resolution of all the matters. The terms of the mediated settlement are confidential. Without disclosing any detail of those terms, the Tribunal concurs with Mr Hoyles' assessment that the outcome achieves a resolution of many of the outstanding substantive matters ventilated by CEU in her applications, in particular the application under the Privacy and Personal Information Protection Act, and her ongoing exposure to costs orders. The Tribunal is satisfied that in reaching a settlement that ends these proceedings the GAL has acted in the best interests of CEU. The Tribunal has taken into account CEU's written submissions, and her oral submissions on 18 December 2018, as to why she opposes the dismissal of these proceedings. Notwithstanding those views, the Tribunal agrees with the GAL that it is in CEU's best interests to end these proceedings on the basis of the agreement reached at the mediation. It is appropriate that each of proceedings 2017/211860, 2018/51163, 2018/129206, 2018/220836, 2018/256700 be dismissed, noting the terms of the agreement reached at the mediation. Proceedings 2018/274005 1. UTS seeks an order under s 110 of the GIPA Act, under which CEU would require the approval of the Tribunal to make any further access applications to UTS (restraint order). The basis on which such an order can be made is if the Tribunal is satisfied that the person has made at least three access applications in the previous two years that lack merit, as defined in s 110(2). A person subject to a restraint order cannot apply to the Tribunal for approval to the making of an access application without first giving notice of the application for approval on the agency concerned or the Information Commissioner. While a restraint order is in force, any access application made without the approval of the Tribunal is not a valid access application: s 110(7). 2. In support of its application UTS provided a submission identifying the three applications which it submits lack merit within the meaning of a 110(2). UTS provided an affidavit by Ms Deborah Naray, Manager Corporate Information in the UTS Governance Support Unit, summarising the history of the seven access applications made by CEU in the last two years, several of which were amended by CEU multiple times, as part of what Ms Naray described as the "extensive, complex and difficult background" between UTS and CEU. On 28 October 2018 Mr Hoyles as GAL provided a report to the Tribunal in which he provided his comments on the application, including CEU's views. 3. As noted above the UTS restraint order application was part of the mediation of the matters between CEU and UTS. CEU's GAL consents to the making of the order under s 110. His view, based on his concern for her mental health as discussed above, is that it is not in CEU's best interests to continue making multiple access applications to UTS. 4. Having regard to the terms of the two access applications the subject of proceedings 2018/51163 and 2018/220836, and the history of previous applications outlined in Ms Naray's affidavit, the Tribunal is satisfied that it would have power to make an order under s 110 of the GIPA Act. The Tribunal concurs with Mr Hoyles' conclusion that it is in the best interests of CEU that there be a check on future access applications in the form of prior approval by the Tribunal. The restraint order does not prevent CEU from making further access applications. The Tribunal is satisfied that CEU's interests have been taken into account, and that the GAL has acted in her best interests. On that basis it is appropriate that the consent order be made. Orders 1. For the above reasons, the following orders were made: 1. Application 2017/00211860 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013. 2. Application 2018/00051163 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013. 3. Application 2018/00129206 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013. 4. Application 2018/00220836 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013. 5. Application 2018/00256700 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013. 6. Application 2018/00274005:By consent, pursuant to s 110 of the Government Information (Public Access) Act 2009 CEU is not permitted to make an access application to the University of Technology Sydney without first obtaining the approval of the Tribunal. ********** 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 20 February 2019 - Coversheet decision order (6) "Application 2018/00274005" added. Coversheet parties file number corrected. 20 February 2019 - [29] Order (6) "Application 2018/00274005" added. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2019