Choi v NSW Ombudsman [2021] NSWCA 68

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Choi v NSW Ombudsman [2021] NSWCA 68 Hearing dates: 3 February 2021; Written submissions (24 February 2021; 8 March 2021) Date of orders: 23 April 2021 Decision date: 23 April 2021 Before: Meagher JA; White JA; Brereton JA Decision: In proceeding 2020/246501 (the summons for leave to appeal): 1. Grant leave to appeal to the applicant on the following question, namely, whether the appointment of Mr Hoyles as guardian ad litem for the applicant in proceedings in the Tribunal numbered 2018/00226998 and 2018/00299612 was valid. 2. Dispense with the requirement for filing a notice of appeal limited to that ground. 3. Allow the appeal. 4. Set aside the orders of the Appeal Panel dismissing Ms Choi's appeals from orders of Deputy President Hennessy of 19 October 2018 and of Principal Member Pearson of 18 December 2018. 5. In lieu thereof: (a) set aside the orders of Principal Member Pearson of 18 December 2018; (b) set aside orders 2 and 3 of Deputy President Hennessy of 19 October 2018; (c) remit the proceedings to the Tribunal for consideration of the appointment of a guardian ad litem for Ms Choi in each proceeding. 6. Dismiss Ms Choi's notice of motion filed 12 April 2021 with no order as to costs. 7. Order that the respondent pay Ms Choi's costs of the summons for leave to appeal and the appeal, not including the costs of her notice of motion filed on 12 April 2021. In proceeding 2020/104621 (the judicial review proceedings): 1. Order that the amended summons be dismissed with no order as to costs. Catchwords: PRACTICE AND PROCEDURE — appointment of guardian ad litem under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) — whether appointment could be delegated by Tribunal to the Secretary of the Department of Justice Legislation Cited: Constitution, ss 6, 75 Adoption Act 2000 (NSW), ss 123, 124 Anti-Discrimination Act 1977 (NSW) Children and Young Persons (Care and Protection) Act 1998, ss 100, 101 Civil and Administrative Tribunal Act 2013 (NSW), ss 55, 83 Government Information (Public Access) Act 2009 (NSW), s 41 Uniform Civil Procedure Rules, r 7.18(1), 20.14 Civil and Administrative Tribunal Regulation 2013 (NSW), reg 10 Civil and Administrative Tribunal Rule 2014 (NSW), r 32 Cases Cited: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 Choi v NSW Ombudsman [2018] NSWCATAD 248 Choi v NSW Ombudsman [2019] NSWCATAD 10 Choi v NSW Ombudsman [2020] NSWCATAP 36 Choi v University of Technology Sydney (No 3) [2020] NSWCA 343 Dyason v Butterworth [2015] NSWCA 52; (2017) 94 NSWLR 463 Emanuele v Australian Securities Commission (1997) 188 CLR 114; [1997] HCA 120 Firth v Director of Public Prosecutions [2018] NSWCA 78 Garde v Dowd [2011] NSWCA 115 Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 Makowski v Legal Profession Admission Board [2020] NSWCA 305 Mao v AMP Superannuation Ltd [2015] NSWCA 252 Marshall v Fleming [2014] NSWCA 64 [2014] NSWCA 64 Morgan v District Court of New South Wales [2017] NSWCA 105 Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 Rajski v Scitec Corporation Pty Ltd (Butterworths unreported judgment, 16 June 1986, NSWCA) Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 497; [2013] HCA 43 Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 Category: Principal judgment Parties: Jae Hee Choi (applicant) NSW Ombudsman (respondent 2020/104621, 2020/246501) NSW Civil and Administrative Tribunal (submitting appearance, second respondent 2020/104621) Representation: Self-represented (applicant) M Smith (respondent 2020/104621, 2020/246501) Crown Solicitors Office (second respondent 2020/104621) File Number(s): 2020/104621 2020/246501 Decision under appeal Court or tribunal: Civil and Administrative Tribunal New South Wales Jurisdiction: Appeal Panel Citation: Choi v NSW Ombudsman [2020] NSWCATAP 36 Date of Decision: 09 March 2020 Before: Cole DCJ, Deputy President S Westgarth, Deputy President File Number(s): AP 19/07745