Choi v NSW Ombudsman - [2018] NSWCATAD 248

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Choi v NSW Ombudsman [2018] NSWCATAD 248
Hearing dates: 15 October 2018
Date of orders: 19 October 2018
Decision date: 19 October 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: Hennessy LCM, Deputy President
Decision:
1. The name of the respondent in proceedings 2018/00226998 is amended to NSW Ombudsman.
2. A person is appointed as a guardian ad litem for Ms Choi in proceedings 2018/00226998.
3. A person is appointed as a guardian ad litem for Ms Choi in proceedings 2018/00299612.
Note: the person is to be appointed from the Guardian Ad Litem Panel which is the panel constituted as the Guardian Ad Litem Panel by the Secretary of the Department of Justice: Civil and Administrative Tribunal Regulation 2013 (NSW), Reg 10. An order will be made naming the person appointed when that advice is received from the Guardian Ad Litem Panel.
4. Both proceedings are listed for directions on 6 November 2018 at 12.30 pm for case management.

Catchwords: PRACTICE AND PROCEDURE – applications for appointment of guardian ad litem – legal test to be applied – whether applicant totally or partially incapable of representing herself – whether discretion should be exercised to appoint a guardian ad litem
Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW), s 71(4)
Anti-Discrimination Act 1977 (NSW), s 96
Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 45, 52
Civil and Administrative Tribunal Regulation 2013
Civil and Administrative Tribunal Rules 2014 (NSW), cl 37
Government Information (Public Access) Act 2009 (NSW), s 43 and Sch 2, cl 2
Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited: CEU v Ombudsman [2017] NSWCATAD 267
CEU v University of Technology Sydney [2017] NSWCATAD 280
CEU v University of Technology Sydney [2017] NSWCATAD 79
CEU v University of Technology Sydney [2018] NSWCATAD 13
CEU v University of Technology Sydney [2018] NSWCATAD 53
CEU v University of Technology, Sydney [2018] NSWCATAD 185
Choi v University of Technology Sydney [2017] NSWCATAD 198
Choi v University of Technology Sydney [2018] NSWCATAD 7
Dezfouli v Corrective Services [2011] NSWADT 11
Category: Procedural and other rulings
Parties: Jae Hee Choi (Applicant)
NSW Ombudsman (Respondent)
Representation:
Applicant (self-represented)
M Smith (Legal Counsel, NSW Ombudsman) (Respondent)

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

REASONS FOR DECISION

Overview

The issue is whether the Tribunal should appoint a guardian ad litem for Ms Choi in two proceedings against the NSW Ombudsman – one under the Anti-Discrimination Act 1977 (NSW) (2018/00299612) and the other under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) (2018/00226998). The term “ad litem” is a Latin phrase meaning “for the suit”. The guardian acts for the party for the period of the proceedings. Based on her behaviour in conducting previous proceedings in the Tribunal, I have decided that a person should be appointed as a guardian ad litem for Ms Choi in both proceedings.
From about April 2015 to December 2016 Ms Choi was a student enrolled in…

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: [2018] NSWCATAD 248
Decision Date: 19 October 2018

CaseChat Overview and Summary

In the matter of Choi v NSW Ombudsman, the court addressed the issue of appointing a guardian ad litem for Ms Choi, who was a party in two separate proceedings. The application for the appointment of a guardian ad litem arose in the context of legal proceedings in which Ms Choi was involved and where her capacity to represent herself was questioned. The NSW Ombudsman was involved as the respondent in one of the cases, and the court was tasked with determining whether Ms Choi was wholly or partially incapable of managing her own affairs, thereby necessitating the appointment of a guardian ad litem.

The court had to determine the appropriate legal test for assessing Ms Choi's capacity to represent herself and whether the discretion to appoint a guardian ad litem should be exercised in her case. This involved a consideration of statutory provisions and relevant legal principles concerning the circumstances under which such appointments are warranted. The court also needed to address the specific criteria for appointing a guardian ad litem, including the role and responsibilities of such a representative in safeguarding the interests of the party deemed incapable of managing their own affairs.

In ruling on the application, the court found that there were sufficient grounds to consider Ms Choi as partially incapable of representing herself in the proceedings. Based on this finding, the court exercised its discretion to appoint a guardian ad litem to assist Ms Choi. The court outlined the parameters of the appointment, specifying that the guardian ad litem should be selected from the panel designated by the Secretary of the Department of Justice. Additionally, the court scheduled the proceedings for a directions hearing to manage the cases effectively.

The final orders of the court included amending the respondent's name in one of the proceedings, appointing a guardian ad litem for Ms Choi in both cases from the designated panel, and setting a directions hearing date for further case management. The specific identity of the appointed guardian ad litem was to be determined once the panel provided the necessary advice.

Orders

Orders of the court

1. The name of the respondent in proceedings 2018/00226998 is amended to NSW Ombudsman.

2. A person is appointed as a guardian ad litem for Ms Choi in proceedings 2018/00226998.

3. A person is appointed as a guardian ad litem for Ms Choi in proceedings 2018/00299612.

Note: the person is to be appointed from the Guardian Ad Litem Panel which is the panel constituted as the Guardian Ad Litem Panel by the Secretary of the Department of Justice: Civil and Administrative Tribunal Regulation 2013 (NSW), Reg 10. An order will be made naming the person appointed when that advice is received from the Guardian Ad Litem Panel.

4. Both proceedings are listed for directions on 6 November 2018 at 12.30 pm for case management.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Choi v NSW Ombudsman [2018] NSWCATAD 248
Hearing dates:	15 October 2018
Date of orders:	19 October 2018
Decision date:	19 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. The name of the respondent in proceedings 2018/00226998 is amended to NSW Ombudsman. 2. A person is appointed as a guardian ad litem for Ms Choi in proceedings 2018/00226998. 3. A person is appointed as a guardian ad litem for Ms Choi in proceedings 2018/00299612. Note: the person is to be appointed from the Guardian Ad Litem Panel which is the panel constituted as the Guardian Ad Litem Panel by the Secretary of the Department of Justice: Civil and Administrative Tribunal Regulation 2013 (NSW), Reg 10. An order will be made naming the person appointed when that advice is received from the Guardian Ad Litem Panel. 4. Both proceedings are listed for directions on 6 November 2018 at 12.30 pm for case management.
Catchwords:	PRACTICE AND PROCEDURE – applications for appointment of guardian ad litem – legal test to be applied – whether applicant totally or partially incapable of representing herself – whether discretion should be exercised to appoint a guardian ad litem
Legislation Cited:	Administrative Decisions Tribunal Act 1997 (NSW), s 71(4) Anti-Discrimination Act 1977 (NSW), s 96 Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 45, 52 Civil and Administrative Tribunal Regulation 2013 Civil and Administrative Tribunal Rules 2014 (NSW), cl 37 Government Information (Public Access) Act 2009 (NSW), s 43 and Sch 2, cl 2 Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	CEU v Ombudsman [2017] NSWCATAD 267 CEU v University of Technology Sydney [2017] NSWCATAD 280 CEU v University of Technology Sydney [2017] NSWCATAD 79 CEU v University of Technology Sydney [2018] NSWCATAD 13 CEU v University of Technology Sydney [2018] NSWCATAD 53 CEU v University of Technology, Sydney [2018] NSWCATAD 185 Choi v University of Technology Sydney [2017] NSWCATAD 198 Choi v University of Technology Sydney [2018] NSWCATAD 7 Dezfouli v Corrective Services [2011] NSWADT 11
Category:	Procedural and other rulings
Parties:	Jae Hee Choi (Applicant) NSW Ombudsman (Respondent)
Representation:	Applicant (self-represented) M Smith (Legal Counsel, NSW Ombudsman) (Respondent)
File Number(s):	2018/ 002269982018/00299612
Publication restriction:	Nil