Choi v Commissioner of Police, New South Wales Police (No 2)

[2021] NSWCA 290

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Choi v Commissioner of Police, New South Wales Police (No 2) [2021] NSWCA 290

Hearing dates:

On the papers

Decision date:

20 December 2021

Before:

Macfarlan JA, McCallum JA.

Decision:

Notice of motion dated 12 June 2021 dismissed with costs

Catchwords:

JUDGMENTS AND ORDERS – application to vary or set aside orders – application to amend judgment – application to amend catchwords – whether terms of catchwords justiciable

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 36.15, 36.16, 36.17

Cases Cited:

Choi v Commissioner of Police (NSW) [2021] NSWCA 113

Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387

Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2019] NSWCA 187

Category:

Consequential orders

Parties:

Jae Hee Choi (applicant)
Commissioner of Police, New South Wales Police Force (respondent)

Representation:

Counsel:
Self-represented (applicant)
R McEwen (respondent)

Solicitors:
Crown Solicitor’s Office (respondent)

File Number(s):

2020/00321616

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Civil and Administrative Tribunal

Jurisdiction:

Appeal Panel

Citation:

[2020] NSWCATAP 211

Date of Decision:

15 October 2020

Before:

Hennessy ADCJ, Deputy President
J Lonsdale, Senior Member

File Number(s):

AP 20/19928

Judgment

1. The Court: Jai Hee Choi sought leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal. The application was heard on 21 May 2021 and determined on 31 May 2021: Choi v Commissioner of Police (NSW) [2021] NSWCA 113. In that judgment, we made the following orders:

1. Extend the time for filing the summons seeking leave to appeal to 19 January 2021.

2. Dismiss the applicant's notice of motion dated 20 May 2021 with costs.

3. Dismiss the summons with costs.

2. By notice of motion dated 12 June 2021, Ms Choi moves the Court to set aside orders (2) and (3) and to grant the relief sought in her initial summons and notice of motion. She also seeks various amendments to the judgment as published, including an amendment to the catchwords on the coversheet.

3. The notice of motion invokes rr 36.15, 36.16 and 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). Rule 36.15 confers power to set aside a judgment or order of the court if it is shown to have been given or made irregularly, illegally or against good faith. The focus of that rule is on the steps taken to enter or make the judgment or order, “not on the merits of any decision, or the irregularity of other steps in the proceedings, or in the proceedings below”: Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 at [16].

4. Rule 36.16 confers a broader power which includes power to set aside or vary a judgment or order where a notice of motion is filed within 14 days after the judgment or order is entered, as occurred here. The exercise of that power ordinarily requires demonstration that the Court proceeded under some “misapprehension”; the rule is not designed to permit re-litigation of issues decided by the Court: Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2019] NSWCA 187 at [13] (Simpson AJA; Bell P and Macfarlan JA agreeing at [1] and [2]), citing Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302; [1993] HCA 6.

5. Rule 36.17, commonly known as the “slip rule”, confers power to correct a clerical mistake or an error arising from an accidental slip or omission in a judgment or order.

6. Ms Choi relied on her affidavit affirmed on 12 June 2021, her affidavit affirmed on 12 July 2021 and written submissions dated 12 July 2021 and 13 September 2021. Her affidavit of 12 June 2021 specified 8 grounds for the relief sought which were expanded upon in the later material. None of the matters raised by Ms Choi establishes a basis for setting aside the orders entered on 31 May 2020.

7. Ground 1 contends:

“The chambers and the respondent cheated on me by communicating with each other without noticing me before the hearing”.

The complaint is based on the accepted convention that it is inappropriate for a party to legal proceedings to communicate with the judge hearing the matter other than in the presence of the other parties (which, in the case of written communications, requires that they be copied into the correspondence). Ms Choi believes the rule has been breached in the present case. There is no rational basis for her belief. It is based on the fact that the presiding judge, Macfarlan JA, was aware of the name of counsel for the respondent “despite no notice of appearance” and that counsel for the respondent was aware that two judges were sitting to hear the application despite the fact that only the presiding judge spoke. In each case the knowledge was acquired from a source that was accessible to Ms Choi. The composition of the Court is published in the daily court list which is available on the Court’s website. The appearances are recorded by Court Officers before the commencement of a hearing.

8. Ground 2 is:

"No …McCallum JA at the hearing."

As is apparent from the wording of that ground, Ms Choi believes I was not present at the hearing. I was. It may be appreciated that Ms Choi, who participated in the hearing by telephone, could not see me but it does not follow that I was not there. The composition of the Court is a matter of public record. As already noted, the daily lists are published on the Court’s website. Contrary to an assertion made by Ms Choi, it is not necessary to register for the online registry in order to access a copy of that list; it is available via the internet.

9. Ground 3 is headed:

“An inconsistent decision regarding the respondent’s new claims.”

The central complaint under this ground is that the Court determined not to have regard to an aide memoir provided to the Court by the respondent shortly before the hearing but then permitted counsel for the respondent to make oral submissions regarding matter addressed in that document. This ground seeks to canvass the merits of the Court’s decision refusing leave. No basis has been established for doing so in accordance with the principles outlined above. Grounds 4 and 5 similarly seek to canvass the merits of the decision.

10. Ground 6 is headed: “Bias”. Ms Choi's complaint under that ground is that the Court requested her to respond to the respondent’s submissions which she describes as “brand new assertions”. She further complains that the Court gave her five minutes to reply to the respondent’s 20-minute brand-new assertions. Those are the time limits routinely imposed in an application for leave to appeal. They do not indicate bias against Ms Choi; they apply to all parties in an application for leave.

11. Ground 7 complains that the Court dealt with Ms Choi's Notice of Motion dated 20 May 2021 although it had not been filed. The complaint concerns the fact that Ms Choi was ordered to pay the costs of that motion. She submits it is “impossible for this chamber to dismiss my notice of motion which was not filed with costs”.

12. She further submits that, as neither the Court nor the respondent said anything about the Notice of Motion during the proceedings, the costs “are nothing”. If that is correct, it is a matter for a costs assessor. The fact that the motion had not been filed in the registry is an irregularity but did not deprive the Court of power to determine the relief sought by Ms Choi in that document, which she provided to the Court.

13. Finally, ground 8 is headed:

“Deficiencies on the face of the judgment.”

Under that heading, Ms Choi seeks various inconsequential amendments to the judgment. While corrections suggested by a party can, as a matter of principle, fall within the slip rule, none of the matters raised by Ms Choi warrants correction under that rule. Separately, Ms Choi contends that the catchwords should be amended so as to include the phrase “public importance” because she repeatedly said “public importance” in her written and oral submissions. Catchwords are published on the coversheet of a judgment for the purpose of facilitating research. Their terms are a matter for the Court and do not raise any justiciable issue.

14. For those reasons, Ms Choi’s motion dated 12 June 2021 should be dismissed with costs.

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Decision last updated: 20 December 2021