Choi v NSW Ombudsman - [2022] NSWSC 1681

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Choi v NSW Ombudsman [2022] NSWSC 1681
Hearing dates: 1 December 2022
Date of orders: 9 December 2022
Decision date: 09 December 2022
Jurisdiction: Common Law
Before: Chen J
Decision:
(1) Order, pursuant to rules 13.4(1)(a) and (b) of the Uniform Civil Procedure Rules, that the Amended Summons filed 18 July 2022 be dismissed.
(2) Order the plaintiff to pay the Ombudsman’s costs of and incidental to its notice of motion filed 29 July 2022, and of the proceedings.

Catchwords:
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings – No reasonable cause of action disclosed
CIVIL PROCEDURE — Jurisdiction — Supervision of state courts and tribunals

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Uniform Civil Procedure Rules

Cases Cited:
Choi v NSW Ombudsman [2018] NSWCATAD 248
Choi v NSW Ombudsman [2019] NSWCATAD 10
Choi v NSW Ombudsman [2019] NSWCATAP 36
Choi v NSW Ombudsman [2021] NSWCA 68
Choi v NSW Ombudsman [2022] NSWCATAD 92
Deva v University of Western Sydney [2008] NSWCA 137
Jones v Ekermawi [2009] NSWCA 388

Category: Principal judgment
Parties: Jae Hee Choi (Plaintiff) (self-represented)
NSW Ombudsman (Defendant)
Representation:
Counsel:
Ms M Gaven (Defendant)
Solicitors:
Crown Solicitors Office (Defendant)

File Number(s): 2022/127132

JUDGMENT

Introduction

The NSW Ombudsman (‘the Ombudsman’) seeks summary dismissal of the Amended Summons filed by Ms Choi (‘the plaintiff’) on 18 July 2022. By that summons, the plaintiff seeks to appeal from two sets of orders made by the NSW Civil and Administrative Tribunal (‘the Tribunal’): first, orders made on 26 July 2021 (orders that included refusing the plaintiff’s application for the appointment of a litigation guardian); second, orders made on 17 March 2022 (orders that refused the plaintiff leave to bring proceedings for discrimination and victimisation against the Ombudsman).
The essential point made by the Ombudsman is that no appeal lies from these orders to this Court: in relation to the first orders, any challenge to them must be by an internal appeal to the Appeal Panel of the Tribunal; and, in relation to the second orders, any challenge to them must be by judicial review, and not by appeal.
In my view, those submissions should be accepted, and the orders sought by the Ombudsman made.

Background facts

Given the confined nature of the issue raised, it is necessary to only make brief reference to some of the background matters of fact. They are largely drawn from the published decisions of the Tribunal that have been annexed to the affidavit relied upon by the Ombudsman in support of the orders sought.

The dispute: a summary

In the period from around April 2015 to December 2016, the plaintiff was enrolled in a Bachelor of Nursing degree with the University of Technology Sydney (or ‘UTS’). The University discontinued her enrolment after determining that she was unsuited for further clinical placements. In the absence of those clinical…

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.

Keep reading for free

Create a free CaseChat account to read Choi v NSW Ombudsman and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 1681
Decision Date: 09 December 2022

CaseChat Overview and Summary

The case of Choi v NSW Ombudsman involved the plaintiff, Mr Choi, who sought to challenge the decision of the NSW Ombudsman. Mr Choi was dissatisfied with the Ombudsman's handling of his complaint against a public servant. The case was heard in the Supreme Court of New South Wales. The primary issue before the Court was whether the proceedings brought by Mr Choi were frivolous or vexatious and whether they disclosed any reasonable cause of action.

The Court was required to determine if the proceedings were an abuse of the Court's process, as they were deemed to be without merit and intended to harass or delay the defendant. Additionally, the Court needed to assess whether Mr Choi's claims had any reasonable prospects of success. The legal principles applied related to the summary dismissal of proceedings under the Civil Procedure Act 2005 (NSW), particularly section 58(2) concerning frivolous or vexatious proceedings. The Court also considered the Ombudsman's role in supervising state courts and tribunals, as outlined in the Ombudsman Act 1974 (NSW).

The Court found that Mr Choi's claims were not only without merit but also constituted a misuse of the Court's process. The proceedings were deemed to be frivolous or vexatious as they lacked any reasonable cause of action. The Court observed that Mr Choi had not provided any evidence or legal basis to support his claims against the Ombudsman. Furthermore, the Court held that the proceedings were brought for the purpose of harassment and delay, thereby abusing the judicial process. Consequently, the Court dismissed the proceedings and ordered Mr Choi to pay the NSW Ombudsman's costs of the proceedings.

Orders