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]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWCA 68
Decision Date: 23 April 2021

CaseChat Overview and Summary

The appeal concerned the appointment of a guardian ad litem for Ms Choi in proceedings before the NSW Civil and Administrative Tribunal (NCAT). The appellant, Ms Choi, sought to challenge the validity of an order made by Deputy President Hennessy appointing a guardian ad litem. The primary question before the Court of Appeal of New South Wales was whether the power to appoint a guardian ad litem under section 45 of the *Civil and Administrative Tribunal Act 2013* (NSW) could be delegated by the Tribunal to the Secretary of the Department of Justice.

The central legal issue was the interpretation of section 45 of the *Civil and Administrative Tribunal Act 2013* (NSW), which empowers the Tribunal to appoint a guardian ad litem for a party to proceedings if it appears that the party is a person under a legal incapacity. Specifically, the court had to determine whether the Tribunal could lawfully delegate this appointment power to the Secretary of the Department of Justice, or if the appointment had to be made directly by the Tribunal itself.

The Court of Appeal held that the power to appoint a guardian ad litem under section 45 of the *Civil and Administrative Tribunal Act 2013* (NSW) is a personal power vested in the Tribunal and cannot be delegated. The court reasoned that the language of the section indicated a direct conferral of power on the Tribunal, and there was no statutory provision authorising such delegation. Consequently, the orders made by Deputy President Hennessy, which effectively delegated the appointment to the Secretary, were found to be invalid.

The Court of Appeal ordered that the orders of Deputy President Hennessy appointing a guardian ad litem for Ms Choi be set aside. The court noted that an order appointing "a person" as guardian ad litem, without specifying an individual, effectively appointed no one.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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]…