Choi v NSW Ombudsman - [2024] NSWSC 940

Supreme Court

New South Wales

Medium Neutral Citation: Choi v NSW Ombudsman [2024] NSWSC 940
Hearing dates: 31 July 2024
Date of orders: 31 July 2024
Decision date: 31 July 2024
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The costs order made by Cavanagh J on 5 April 2024 is to be paid in the specified amount of $30,000 by the plaintiff to the first defendant forthwith.
(2) The plaintiff is to pay the first defendant’s costs of the notice of motion filed on 3 May 2024 on the ordinary basis.
(3) The plaintiff’s notice of motion filed on 18 April 2024 is dismissed.
(4) The plaintiff is to pay the first defendant’s costs of that motion on the ordinary basis.
(5) The plaintiff’s notice of motion filed on 14 May 2024 is dismissed.
(6) The plaintiff is to pay the first defendant’s costs of that motion on the ordinary basis.

Catchwords:
JUDGMENTS AND ORDERS – amending, varying, setting aside – application to set aside orders under UCPR r 36.15 – no omissions or oversight – dismissed
PRACTICE AND PROCEDURE – costs – application for gross sum costs order against self-represented party residing overseas – significant discount – avoidance of satellite litigation – granted
PRACTICE AND PROCEDURE – summary dismissal or strike out of motion seeking gross sum costs order – without merit – dismissed

Legislation Cited:
Civil Procedure Act2005 (NSW), ss 56, 98
Ombudsman Act 1974 (NSW), s 35A
Uniform Civil Procedure Rules 2005 (NSW), r 36.15

Cases Cited:
Ahern v Aon Risk Services Australia Ltd (No2) [2022] NSWCA 39
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 and 123; 1999 [FCA] 350
Choi v NSW Ombudsman [2021] NSWCA 68
Choi v NSW Ombudsman [2022] NSWCATAD 92
Choi v NSW Ombudsman [2022] NSWSC 1681
Choi v NSW Ombudsman [2024] NSWSC 352
Damjanovic v Maley (2002) 55 NSWLR 149; NSWCA 230
Dickson v Commissioner of Australian Federal Police (No2) [2023] NSWCA 111
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Reisner v Bratt & Anor [2004] NSWCA 22
State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283

Category: Procedural rulings
Parties: Jae Hee Choi (Plaintiff)(self-represented)
Office of the NSW Ombudsman (First Defendant)
Civil and Administrative Tribunal of New South Wales (Second Defendant)
Representation:
Counsel:
M Gaven (First Defendant)
Solicitors:
Crown Solicitor’s Office (First Defendant)
Crown Solicitor’s Office (Second Defendant; submitting appearance)

File Number(s): 2022/00372997
Publication restriction: Nil.

JUDGMENT (REVISED FROM EX TEMPORE)

On 5 April 2024, Cavanagh J delivered judgment in Choi v NSW Ombudsman [2024] NSWSC 352. He dismissed the plaintiff’s summons for judicial review of two decisions of the NSW Civil and Administrative Tribunal (“NCAT”).
The relevant NCAT decisions pertain to refusals to: appoint a guardian ad litem; grant the plaintiff leave to proceed with a disability discrimination complaint; and other procedural orders. [1]
1. Decision of Senior Member Montgomery dated 26 July 2021 and the decision of Senior Member Tibbey dated…

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: [2024] NSWSC 940
Decision Date: 31 July 2024

CaseChat Overview and Summary

The case of Choi v NSW Ombudsman involved a self-represented party, Choi, who had applied to the NSW Civil and Administrative Tribunal for an amendment to its orders. Choi sought to set aside these orders under rule 36.15 of the Uniform Civil Procedure Rules. The dispute centred on whether the Tribunal had made any omissions or oversights in its previous decisions, and whether Choi's application was warranted. The matter was brought before the Supreme Court of New South Wales for resolution.

The court had to determine whether the Tribunal had indeed overlooked any material or made errors in its initial decisions, thereby justifying the setting aside of orders. Additionally, the court examined Choi's application for gross sum costs against the self-represented party residing overseas, considering the need to avoid further litigation and the principle of proportionality in awarding costs. The court found that there were no omissions or oversights by the Tribunal, leading to the dismissal of Choi's application to set aside the orders.

The court's reasoning focused on the absence of any errors or oversights in the Tribunal's decisions, affirming that the orders were correctly made. Regarding the application for costs, the court acknowledged the need to avoid further litigation and the potential for disproportionate costs. It granted a significant discount to the gross sum costs order, considering the self-represented status of Choi and the overseas residency. This decision was aimed at ensuring fairness and efficiency in the legal process.

The court ultimately dismissed Choi's application to set aside the orders and granted a reduced gross sum costs order against Choi, reflecting the need to balance the principles of justice and practicality in legal proceedings.

Orders