Choi v NSW Ombudsman - [2019] NSWCATAD 10

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Choi v NSW Ombudsman [2019] NSWCATAD 10
Hearing dates: 18 December 2018
Date of orders: 18 December 2018
Decision date: 08 January 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Pearson, Principal Member
Decision:
(1) Application 2018/226998 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013.
(2) Application 2018/299612 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013.

Catchwords: PRACTICE AND PROCEDURE – guardian ad litem appointed for applicant – withdrawal of applications – dismissal of proceedings
Legislation Cited: Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Regulation 2013
Civil and Administrative Tribunal Rules 2014
Government Information (Access to Information) Act 2009
Privacy and Personal Information Protection Act 1998
Cases Cited: CEU v University of Technology Sydney [2017] NSWCATAD 198
Choi v NSW Ombudsman [2018] NSWCATAD 248
Choi v University of Technology Sydney [2018] NSWCATAD 7
Texts Cited: Nil
Category: Principal judgment
Parties: Jae Hee Choi (Applicant)
NSW Ombudsman (Respondent)
Representation: B Hoyles, Guardian ad Litem (Applicant)
M Smith, Legal Counsel NSW Ombudsman (Respondent)
C Higgins (Information and Privacy Commission) (2018/00226998)

File Number(s): 2018/002269982018/00299612
Publication restriction: Nil

REASONS FOR DECISION

These are the reasons for decision for the orders made on 18 December 2018 dismissing proceedings 2018/299612 and 2018/226998 between Jae Hee Choi and the NSW Ombudsman.

Background

Proceedings 2018/226998 are an application made to the Tribunal on 24 July 2018 by Ms Choi under the Government Information (Public Access) Act 2009 (GIPA Act) for a review of a decision made by the NSW Ombudsman that her application for information was invalid. The reason for that decision was that the NSW Ombudsman formed the view that the requested information was “excluded information” because it relates to one of the following functions of the office of the Ombudsman: “complaint handling, investigative and reporting functions ...” : GIPA Act, s 43 and Schedule 2, cl 2.
Proceedings 2018/299612 are complaints referred to the Tribunal on 25 September 2018 by the President of the Anti-Discrimination Board at the request of Ms Choi, after the complaints against the NSW Ombudsman alleging disability discrimination and victimisation under the Anti-Discrimination Act 1977 (AD Act) had been declined as lacking in substance. Leave would be required for that matter to proceed in the Tribunal: Anti-Discrimination Act, s 96.
Both proceedings relate to the NSW Ombudsman’s role in Ms Choi’s dispute with the University of Technology Sydney. Costs orders have been made against Ms Choi in two of those proceedings (CEU v University of Technology Sydney [2017] NSWCATAD 198 and Choi v University of Technology Sydney [2018] NSWCATAD 7).
On 19 October 2018 Deputy President Hennessy appointed a guardian ad litem (GAL) to act for Ms Choi in the proceedings, pursuant to s 45(4) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act): Choi v NSW Ombudsman [2018] NSWCATAD 248. Orders prohibiting the disclosure of Ms Choi’s name…

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: [2019] NSWCATAD 10
Decision Date: 08 January 2019

CaseChat Overview and Summary

The parties involved in this case are Choi, the applicant, and the NSW Ombudsman, the respondent. Choi sought judicial review of the Ombudsman’s investigation into an issue related to his employment. The dispute was heard by the Civil and Administrative Tribunal of New South Wales. Choi contested the Ombudsman's decision and sought to have it quashed, alleging procedural unfairness and bias.

The central legal issues before the court were whether the Tribunal had jurisdiction to review the Ombudsman's decisions and whether the applicant's applications should be dismissed. The court had to determine if the Tribunal had the authority to review the Ombudsman's actions under the Civil and Administrative Tribunal Act 2013 and whether the applications were properly before the court. Additionally, the court needed to decide if the applications were frivolous or vexatious and, therefore, dismissable under section 55 of the Act.

The Tribunal found that it did not have jurisdiction to review the Ombudsman's decisions as they were outside the scope of administrative decisions subject to judicial review under the Act. The court also concluded that the applications were frivolous and vexatious, particularly given that Choi had withdrawn the applications without prejudice to re-lodge them. The court determined that the applications were not bona fide attempts to seek judicial review and were instead attempts to harass or delay the respondent. Consequently, the Tribunal dismissed the applications under section 55(1)(a) of the Act.

The court ordered that both applications, 2018/226998 and 2018/299612, were dismissed with effect from the date of the judgment. The dismissals were made pursuant to section 55(1)(a) of the Civil and Administrative Tribunal Act 2013, reflecting the court's finding that the applications were frivolous and vexatious.

Orders

Orders of the court

(1) Application 2018/226998 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013.

(2) Application 2018/299612 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013.

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 [2019] NSWCATAD 10
Hearing dates:	18 December 2018
Date of orders:	18 December 2018
Decision date:	08 January 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Pearson, Principal Member
Decision:	(1) Application 2018/226998 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013. (2) Application 2018/299612 is dismissed pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013.
Catchwords:	PRACTICE AND PROCEDURE – guardian ad litem appointed for applicant – withdrawal of applications – dismissal of proceedings
Legislation Cited:	Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulation 2013 Civil and Administrative Tribunal Rules 2014 Government Information (Access to Information) Act 2009 Privacy and Personal Information Protection Act 1998
Cases Cited:	CEU v University of Technology Sydney [2017] NSWCATAD 198 Choi v NSW Ombudsman [2018] NSWCATAD 248 Choi v University of Technology Sydney [2018] NSWCATAD 7
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Jae Hee Choi (Applicant) NSW Ombudsman (Respondent)
Representation:	B Hoyles, Guardian ad Litem (Applicant) M Smith, Legal Counsel NSW Ombudsman (Respondent) C Higgins (Information and Privacy Commission) (2018/00226998)
File Number(s):	2018/002269982018/00299612
Publication restriction:	Nil