Choi v NSW Ombudsman - [2023] NSWCATEN 2

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Choi v NSW Ombudsman [2023] NSWCATEN 2
Hearing dates: On the papers
Date of orders: 02 May 2023
Decision date: 02 May 2023
Jurisdiction: Enforcement
Before: Coleman SC ADCJ
Decision:
(1) To the extent necessary, pursuant to s 45(1)(b)(ii) of the Civil and Administrative Tribunal Act 2013 (NSW), leave is granted to the Respondent to be legally represented.
(2) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing of the application filed on 2 June 2022.
(3) The application of the Applicant filed on 2 June 2022 is dismissed.
(4) Leave to amend the application filed 2 June 2022 to raise an additional ground is refused.
(5) Any party seeking an order for costs of the proceedings file and serve written submissions not exceeding 5 pages in length in support of such application within 28 days of these orders.
(6) A party resisting an application for costs file and serve written submissions not exceeding 5 pages in length in opposition to such application within 56 days of these orders.
(7) Any party opposing an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of any costs application include in any written submissions filed pursuant to these orders submissions in opposition to such order.

Catchwords:
PRACTICE AND PROCEDURE – contempt – whether notice of representation by legal practitioner should be “revoked” – whether name of party should be amended – whether number of proceedings should be amended – whether evidence capable of establishing contempt in the face of Tribunal – whether evidence capable of establishing breach of orders of Tribunal

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 45(1)(b)(ii), 50(2), 53, 73(5)
Government Information (Public Access) Act 2009 (NSW), s 43

Cases Cited:
Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited (1986) 161 CLR 98; [1986] HCA 46
Brown v The Owners - Strata Plan 82527 [2022] NSWCATAP 328
Burns v Corbett [2015] NSWCATAD 188
Choi v NSW Ombudsman [2018] NSWCATAD 248
Choi v NSW Ombudsman [2022] NSWCATAD 292
DVI v ZTT [2021] NSWCATEN 4
European Asian Bank AG v Wentworth (1986) 5 NSWLR 445
Fraser v The Queen [1984] 3 NSWLR 212
GR v Family and Community Services [2021] NSWSC 39
GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198
GR v Secretary, Family, Disability and Community Services; GR v Minister, Family, Disability and Community Services [2020] NSWSC 668
Just v Wu [2023] NSWCATEN 1
Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35
Mirus Australia Pty Limited v Gage [2017] NSWSC 1046
Mohareb v Kelso [2020] NSWCA 105
Mohareb v Palmer [2017] NSWCA 281
National Australia Bank Limited v Juric [2001] VSC 375
Nowacki & Ors v S & Q Assets Pty Limited [2022] NSWCATEN 1
Prothonotary of…

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: [2023] NSWCATEN 2
Decision Date: 02 May 2023

CaseChat Overview and Summary

The parties involved in this case are Choi, the Applicant, and the NSW Ombudsman, the Respondent. The dispute revolves around the Applicant's application to revoke a notice of representation by a legal practitioner, amend the name of the party, and amend the number of proceedings. The case was heard in the Civil and Administrative Tribunal of New South Wales.

The central legal issues that the court had to address were whether the notice of representation by a legal practitioner should be revoked, whether the name of the party should be amended, whether the number of proceedings should be amended, and whether the evidence presented was capable of establishing contempt in the face of the Tribunal and a breach of the Tribunal's orders. The Applicant argued that the notice of representation should be revoked due to the legal practitioner's alleged misconduct. The Respondent, on the other hand, contended that the notice of representation should not be revoked, and that the other amendments to the application were not necessary.

The court found that the notice of representation should not be revoked, as there was insufficient evidence to support the Applicant's claims of misconduct. The court also determined that the name of the party and the number of proceedings should not be amended, as the Applicant had not provided a valid reason for such amendments. Furthermore, the court held that the evidence presented was not capable of establishing contempt in the face of the Tribunal or a breach of the Tribunal's orders. Consequently, the application filed by the Applicant on 2 June 2022 was dismissed, and leave to amend the application to raise an additional ground was refused.

The court granted leave to the Respondent to be legally represented and dispensed with a hearing of the application. Any party seeking an order for costs of the proceedings was required to file and serve written submissions not exceeding 5 pages in length in support of such application within 28 days of these orders. A party resisting an application for costs was required to file and serve written submissions not exceeding 5 pages in length in opposition to such application within 56 days of these orders. Additionally, any party opposing an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of any costs application had to include submissions in opposition to such order in any written submissions filed pursuant to these orders.

Orders

Orders of the court

(1) To the extent necessary, pursuant to s 45(1)(b)(ii) of the Civil and Administrative Tribunal Act 2013 (NSW), leave is granted to the Respondent to be legally represented.

(2) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing of the application filed on 2 June 2022.

(3) The application of the Applicant filed on 2 June 2022 is dismissed.

(4) Leave to amend the application filed 2 June 2022 to raise an additional ground is refused.

(5) Any party seeking an order for costs of the proceedings file and serve written submissions not exceeding 5 pages in length in support of such application within 28 days of these orders.

(6) A party resisting an application for costs file and serve written submissions not exceeding 5 pages in length in opposition to such application within 56 days of these orders.

(7) Any party opposing an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of any costs application include in any written submissions filed pursuant to these orders submissions in opposition to such order.

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 [2023] NSWCATEN 2
Hearing dates:	On the papers
Date of orders:	02 May 2023
Decision date:	02 May 2023
Jurisdiction:	Enforcement
Before:	Coleman SC ADCJ
Decision:	(1) To the extent necessary, pursuant to s 45(1)(b)(ii) of the Civil and Administrative Tribunal Act 2013 (NSW), leave is granted to the Respondent to be legally represented. (2) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing of the application filed on 2 June 2022. (3) The application of the Applicant filed on 2 June 2022 is dismissed. (4) Leave to amend the application filed 2 June 2022 to raise an additional ground is refused. (5) Any party seeking an order for costs of the proceedings file and serve written submissions not exceeding 5 pages in length in support of such application within 28 days of these orders. (6) A party resisting an application for costs file and serve written submissions not exceeding 5 pages in length in opposition to such application within 56 days of these orders. (7) Any party opposing an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of any costs application include in any written submissions filed pursuant to these orders submissions in opposition to such order.
Catchwords:	PRACTICE AND PROCEDURE – contempt – whether notice of representation by legal practitioner should be “revoked” – whether name of party should be amended – whether number of proceedings should be amended – whether evidence capable of establishing contempt in the face of Tribunal – whether evidence capable of establishing breach of orders of Tribunal
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 45(1)(b)(ii), 50(2), 53, 73(5) Government Information (Public Access) Act 2009 (NSW), s 43
Cases Cited:	Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited (1986) 161 CLR 98; [1986] HCA 46 Brown v The Owners - Strata Plan 82527 [2022] NSWCATAP 328 Burns v Corbett [2015] NSWCATAD 188 Choi v NSW Ombudsman [2018] NSWCATAD 248 Choi v NSW Ombudsman [2022] NSWCATAD 292 DVI v ZTT [2021] NSWCATEN 4 European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 Fraser v The Queen [1984] 3 NSWLR 212 GR v Family and Community Services [2021] NSWSC 39 GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198 GR v Secretary, Family, Disability and Community Services; GR v Minister, Family, Disability and Community Services [2020] NSWSC 668 Just v Wu [2023] NSWCATEN 1 Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35 Mirus Australia Pty Limited v Gage [2017] NSWSC 1046 Mohareb v Kelso [2020] NSWCA 105 Mohareb v Palmer [2017] NSWCA 281 National Australia Bank Limited v Juric [2001] VSC 375 Nowacki & Ors v S & Q Assets Pty Limited [2022] NSWCATEN 1 Prothonotary of…