Choi v NSW Ombudsman - [2024] NSWSC 352

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Choi v NSW Ombudsman [2024] NSWSC 352
Hearing dates: 07 March 2024
Date of orders: 05 and 09 April 2024
Decision date: 05 April 2024
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Grant an extension of time to file the summons seeking judicial review.
(2) The summons is dismissed.
(3) The plaintiff is to pay the first defendant’s costs.
(4) The motions filed 30 March 2023, 27 April 2023, and 27 October 2023 are dismissed.

Catchwords:
ADMINISTRATIVE LAW – Whether reviewable error of law – where plaintiff alleges various errors of law on the face of the record and jurisdictional error in decisions of NCAT
ADMINISTRATIVE LAW – Particular administrative bodies – Ombudsman – where plaintiff makes allegations of discrimination and victimisation against the Ombudsman

Legislation Cited:
Anti-Discrimination Act 1977 (NSW), ss 49A, 93A, 96, 108
Civil and Administrative Tribunal Act 2013 (NSW), s 38
Mental Health Act 2007 (NSW)
Ombudsman Act 1974 (NSW), s 35A

Cases Cited:
Choi v NSW Ombudsman [2021] NSWCA 68
Choi v NSW Ombudsman (No 5) [2022] NSWCATAD 92
Choi v NSW Ombudsman [2022] NSWSC 1681
Ekermawi v Administrative Decisions Tribunal (NSW) [2009] NSWSC 143
Kaldas v Barbour (2017) 107 NSWLR 341

Category: Principal judgment
Parties: Jae Hee Choi (Plaintiff)
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)

File Number(s): 2022/00372997
Publication restriction: Nil
Decision under review

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Administrative and Equal Opportunity Division

Citation:

[2022] NSWCATAD 92

Date of Decision:

26 July 2021

Before:

Senior Member Montgomery
Senior Member Tibbey

File Number(s):

2018/00299612

JUDGMENT

Pursuant to a summons filed on 20 December 2022, the plaintiff seeks judicial review of two decisions of the New South Wales Civil and Administrative Tribunal (“the Tribunal”) being:

the decision of Senior Member Montgomery dated 26 July 2021 refusing to appoint a guardian ad litem and other procedural orders ("the 2021 orders”); and

the decision of Senior Member Tibbey dated 17 March 2022 refusing leave to the plaintiff to proceed with a disability discrimination complaint and a victimisation complaint made to the Anti-Discrimination Board (“the refusal orders”).

There are two defendants being:

the first defendant – the NSW Ombudsman; and

the second defendant – the Tribunal.

The Tribunal has filed a submitting appearance.
The plaintiff lives in South Korea and has done so for several years. She speaks English well. She was afforded the opportunity to speak at length in support of her case. During the hearing on 7 March 2024, she appeared by audio-visual link.
The plaintiff did not attend before the Tribunal on 26 July 2021 when the first decision of which she complains was made. The refusal decision was made on the papers, the Tribunal having dispensed with the need for an oral hearing.
The plaintiff also did not appear in person on the hearing of the earlier…

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 352
Decision Date: 05 April 2024

CaseChat Overview and Summary

The plaintiff, Choi, filed an application seeking judicial review of decisions made by the NSW Ombudsman, which were the subject of an appeal to the NSW Civil and Administrative Tribunal (NCAT). Choi contended that the Ombudsman's decisions contained numerous errors of law, including jurisdictional errors, and that the Ombudsman had acted with bias and discrimination. The application was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the Ombudsman's decisions contained reviewable errors of law, and whether the Ombudsman had acted in a manner that was unfair or discriminatory. The court had to consider whether the errors alleged by Choi were indeed jurisdictional in nature, and whether they warranted judicial intervention. Additionally, the court examined whether the Ombudsman's conduct during the investigation and in making the decisions amounted to a breach of the principles of natural justice or was otherwise unfair.

The court determined that the errors alleged by Choi were not jurisdictional in nature and did not warrant judicial intervention. The court held that the Ombudsman's decisions were not so flawed as to render them reviewable on the grounds of error of law. Furthermore, the court found that the Ombudsman's conduct did not amount to bias or discrimination. The court concluded that the Ombudsman had acted within the scope of their statutory powers and had not breached the principles of natural justice. Consequently, Choi's application for judicial review was dismissed.

No further orders were made by the court.

Orders