Choi v NSW Ombudsman - [2022] NSWCATAD 292

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Choi v NSW Ombudsman [2022] NSWCATAD 292
Hearing dates: 18 January 2022, 31January 2022 and 3 June 2022
Date of orders: 29 August 2022
Decision date: 29 August 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:
(1) The application to appoint a McKenzie Friend for the applicant is refused.
(2) The respondent’s decision dated 3 August 2018 is valid and is an administratively reviewable decision.
(3) The respondent is to provide the applicant with copies of the attachments to document no 49 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision.
(4) The respondent is to provide the applicant with a copy of document no 81 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision.
(5) The remainder of the documents listed in the respondent’s Further Amended Confidential Schedule of Documents dated 16 February 2022, including document no 49, are “excluded documents” under cl 2 of sch 2 of the GIPA Act.
(6) The respondent’s decision dated 3 August 2018 is otherwise affirmed.

Catchwords:
ADMINISTRATIVE LAW – administrative review – Government information – Procedural fairness – Application to appoint a McKenzie Friend – Validity of an instrument of delegation – Jurisdiction – Whether the respondent has power to review the respondent’s decision – Excluded documents under cl 2 sch 2 of the GIPA Act

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Court Security Act 2005 (NSW)
Government Information (Information Commissioner) Act 2009 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Interpretation Act 1987 (NSW)
Legal Profession Uniform Law (NSW) (NSW)
Ombudsman Act 1974 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:
CEU v Ombudsman [2017] NSWCATAD 267
Capilano Honey Ltd v Dowling [2018] NSWSC 876
CEU v University of Technology Sydney [2017] NSWCATAD 323
Department of Education v Zonnevylle [2020] NSWCATAD 96
Goldfish Potts Point Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 13
McEwan v Port Stephens Council [2021] NSWCATAD 110
McEwan v Port Stephens Council [2022] NSWCATAD 148
McEwan v Port Stephens Council [2018] NSWCATAP 211
McEwan v Port Stephens Council [2017] NSWCATAD 269
McGuirk v Vice-Chancellor, University of New South Wales [2009] NSWADTAP 43
McKenzie v McKenzie [1970] 3 WLR 472; [1970] WLR 472; 3 WLR 472; [1970] 3 All ER 1034; [1971] LRP 33; (1971) 1971 P 33
Pincevic v Nicholas Panos t/as N Panos and Associates [2013] NSWDC 188
REGINA v Michael Kanaan [2003] NSWCCA 190
Webb v Port Stephens Council [2019] NSWCATAD 47
Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 38
Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274

Texts Cited:
None cited

Category:

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: [2022] NSWCATAD 292
Decision Date: 29 August 2022

CaseChat Overview and Summary

The case of Choi v NSW Ombudsman involved an application for administrative review of a decision made by the NSW Ombudsman. The applicant sought review of the Ombudsman's decision to exclude certain documents from disclosure under the Government Information (Public Access) Act 2009 (NSW). The application also included a request to appoint a McKenzie Friend to assist the applicant in the proceedings. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issues addressed by the court were whether the respondent had the authority to review the decision, the validity of the instrument of delegation, and the proper application of procedural fairness principles. Additionally, the court considered whether the respondent had the jurisdiction to exclude certain documents from disclosure under the GIPA Act, specifically those listed in the respondent's Further Amended Confidential Schedule of Documents. The applicant also sought clarification on the meaning and application of the term "excluded documents" under clause 2 of schedule 2 of the GIPA Act.

The court found that the respondent's decision dated 3 August 2018 was valid and was an administratively reviewable decision. The court also upheld the respondent's power to review the decision and the validity of the instrument of delegation. The application to appoint a McKenzie Friend was refused, as the court found it was not necessary in the circumstances of the case. The court directed the respondent to provide the applicant with specific documents within a set timeframe. Furthermore, the court concluded that certain documents listed in the respondent’s Further Amended Confidential Schedule of Documents were properly classified as "excluded documents" under the GIPA Act. The court affirmed the respondent's decision in all other respects.

The final orders of the court included the refusal of the McKenzie Friend application, the affirmation of the respondent’s decision as valid, the requirement for the respondent to provide certain documents to the applicant, and the classification of other documents as "excluded documents" under the GIPA Act. The respondent's decision dated 3 August 2018 was otherwise affirmed.

Orders

Orders of the court

(1) The application to appoint a McKenzie Friend for the applicant is refused.

(2) The respondent’s decision dated 3 August 2018 is valid and is an administratively reviewable decision.

(3) The respondent is to provide the applicant with copies of the attachments to document no 49 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision.

(4) The respondent is to provide the applicant with a copy of document no 81 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision.

(5) The remainder of the documents listed in the respondent’s Further Amended Confidential Schedule of Documents dated 16 February 2022, including document no 49, are “excluded documents” under cl 2 of sch 2 of the GIPA Act.

(6) The respondent’s decision dated 3 August 2018 is otherwise affirmed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Choi v NSW Ombudsman [2022] NSWCATAD 292
Hearing dates:	18 January 2022, 31January 2022 and 3 June 2022
Date of orders:	29 August 2022
Decision date:	29 August 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	(1) The application to appoint a McKenzie Friend for the applicant is refused. (2) The respondent’s decision dated 3 August 2018 is valid and is an administratively reviewable decision. (3) The respondent is to provide the applicant with copies of the attachments to document no 49 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision. (4) The respondent is to provide the applicant with a copy of document no 81 in its Further Amended Confidential Schedule of Documents dated 16 February 2022, within 14 days of the date of this decision. (5) The remainder of the documents listed in the respondent’s Further Amended Confidential Schedule of Documents dated 16 February 2022, including document no 49, are “excluded documents” under cl 2 of sch 2 of the GIPA Act. (6) The respondent’s decision dated 3 August 2018 is otherwise affirmed.
Catchwords:	ADMINISTRATIVE LAW – administrative review – Government information – Procedural fairness – Application to appoint a McKenzie Friend – Validity of an instrument of delegation – Jurisdiction – Whether the respondent has power to review the respondent’s decision – Excluded documents under cl 2 sch 2 of the GIPA Act
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Court Security Act 2005 (NSW) Government Information (Information Commissioner) Act 2009 (NSW) Government Information (Public Access) Act 2009 (NSW) Interpretation Act 1987 (NSW) Legal Profession Uniform Law (NSW) (NSW) Ombudsman Act 1974 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	CEU v Ombudsman [2017] NSWCATAD 267 Capilano Honey Ltd v Dowling [2018] NSWSC 876 CEU v University of Technology Sydney [2017] NSWCATAD 323 Department of Education v Zonnevylle [2020] NSWCATAD 96 Goldfish Potts Point Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 13 McEwan v Port Stephens Council [2021] NSWCATAD 110 McEwan v Port Stephens Council [2022] NSWCATAD 148 McEwan v Port Stephens Council [2018] NSWCATAP 211 McEwan v Port Stephens Council [2017] NSWCATAD 269 McGuirk v Vice-Chancellor, University of New South Wales [2009] NSWADTAP 43 McKenzie v McKenzie [1970] 3 WLR 472; [1970] WLR 472; 3 WLR 472; [1970] 3 All ER 1034; [1971] LRP 33; (1971) 1971 P 33 Pincevic v Nicholas Panos t/as N Panos and Associates [2013] NSWDC 188 REGINA v Michael Kanaan [2003] NSWCCA 190 Webb v Port Stephens Council [2019] NSWCATAD 47 Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 38 Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274
Texts Cited:	None cited
Category: