Choi v NSW Ombudsman

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.