Choi v NSW Ombudsman

[2025] NSWCA 26

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Choi v NSW Ombudsman [2025] NSWCA 26

Hearing dates:

24 February 2025

Date of orders:

28 February 2025

Decision date:

28 February 2025

Before:

Griffiths AJA

Decision:

(1) Order pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) that Ms Choi appear by audio-visual link from South Korea.

(2) The amended summons filed 28 November 2024 is dismissed under r 13.4 of the UCPR.

(3) The applicant in the amended summons pay the first respondent’s costs of and incidental to the first respondent’s notice of motion filed 10 December 2024.

(4) The applicant’s notice of motion filed 10 December 2024 is dismissed, with costs.

Catchwords:

COURTS AND JUDGES — application for recusal — whether apprehended bias — where allegation of apprehended bias based on association — where allegation of apprehended bias arose from outcome of internal court administrative procedures — where complaint made to the Judicial Commission

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — where no reasonable cause of action disclosed — where proceedings are an abuse of process

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 91

Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B

Judicial Officers Act 1986 (NSW), s 20

Ombudsman Act 1974 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28

Cases Cited:

Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

Choi v NSW Ombudsman [2024] NSWSC 352

Choi v NSW Ombudsman [2024] NSWSC 940

Doulaveras v Daher (2009) 253 ALR 627; [2009] NSWCA 58

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Kaldas v Barbour (2022) 107 NSWLR 341; [2017] NSWCA 275

Re JRL; Ex Parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39

Webb v The Queen (1994) 181 CLR 41; [1991] HCA 30

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Jae Hee Choi (Applicant)
NSW Ombudsman (First Respondent)
NSW Civil and Administrative Tribunal (Second Respondent)

Representation:

Counsel:
J Choi (Applicant) (in person)

Solicitors:
Crown Solicitor’s Office (First Respondent)
Crown Solicitor’s Office (Second Respondent) (submitting)

File Number(s):

2024/281242

Publication restriction:

Nil

JUDGMENT

1. The applicant (Ms Choi) has filed an amended summons (supervisory jurisdiction) dated 28 November 2024 in this Court. In the summons originally filed by Ms Choi on 31 July 2024, as the applicant she described herself as “Jae Hee Choi trading as NSW Ombudswoman”. She described the first and second respondent (also referred to in that document as the first and second defendant) as “OFFICE OF THE OMBUDSMAN trading as State Government Entity ABN 76 325 886 267” and “CIVIL AND ADMINISTRATIVE TRIBUNAL OF NEW SOUTH WALES ABN 65 668 163 398” respectively.

2. On 14 October 2024, the Registrar substituted the NSW Ombudsman for the entity named by Ms Choi as the first respondent/first defendant in the summons.

3. When Ms Choi filed the amended summons on 28 November 2024, she described the parties as follows:

[First] applicant: Jae Hee Choi

[First] defendant: OFFICE OF THE OMBUDSMAN trading as State Government Entity ABN 76 325 886 267

[Second] defendant: CIVIL AND ADMINISTRATIVE TRIBUNAL OF NEW SOUTH WALES ABN 65 668 163 398

4. By the amended summons, Ms Choi seeks to challenge by way of judicial review two decisions of the Civil and Administrative Tribunal of NSW (NCAT). The first decision, by Senior Member Tibbey, is dated 17 March 2022. By this decision, the applicant was refused leave to proceed with a complaint alleging unlawful discrimination and victimisation by the Ombudsman. The second decision is that of Senior Member Montgomery and is dated 26 July 2021. This earlier decision determined several interlocutory matters concerning the applicant’s complaint of unlawful discrimination and victimisation by the Ombudsman.

5. NCAT has filed a submitting appearance.

6. Notably, the same two decisions were the subject of an earlier unsuccessful judicial review challenge in the Common Law Division of the Supreme Court. On 5 April 2024 Cavanagh J published reasons for judgment and made certain orders in Choi v NSW Ombudsman [2024] NSWSC 352. Shortly thereafter, on 9 April 2024, under the slip rule his Honour republished his reasons and, in addition to the orders made on 5 April 2024, made an order which dismissed motions filed 30 March 2023, 27 April 2023 and 27 October 2023. Ms Choi was ordered to pay the Ombudsman’s costs.

7. Subsequently, in Choi v NSW Ombudsman [2024] NSWSC 940, N Adams J determined three notices of motion arising from Cavanagh J’s orders and judgment. Her Honour dismissed Ms Choi’s first notice of motion filed on 18 April 2024 in which she sought to change the name of the first respondent and to remove the Crown Solicitor as the first respondent’s representative.

8. A second notice of motion, filed by Ms Choi on 14 May 2024, was also dismissed. It sought to have set aside the Ombudsman’s motion seeking that the costs ordered by Cavanagh J be paid on a gross sum order basis.

9. Finally, N Adams J allowed the Ombudsman’s motion that the costs be paid on a gross sum order basis, in the amount of $30,000.

10. Turning to the present proceeding, the Ombudsman filed a notice of motion on 10 December 2024, seeking to have Ms Choi’s amended summons dismissed under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or, alternatively, struck out under r 14.28.

11. On the same day, Ms Choi filed a notice of motion seeking to strike out the Ombudsman’s notice of motion together with the notices of appearance filed 11 October 2024 and 9 December 2024 on behalf of the Ombudsman.

12. On 13 December 2024, the Registrar made orders in Chambers listing the two motions for hearing on 3 February 2025. Orders were also made for the filing of written submissions.

13. On 3 February 2025, the two motions were listed for hearing before McHugh JA. At the commencement of the hearing, the applicant sought his Honour’s recusal on the basis that, in 1991-1992, his Honour was a summer clerk at Blake Dawson Waldron for two months when the Honourable Mark Speakman SC MP was a partner of that law firm. Mr Speakman is not a party to the proceeding nor likely to be a witness, but the applicant told McHugh JA that she had “suffered” from Mr Speakman. This is an apparent reference to the applicant’s frustration and dissatisfaction with the Attorney-General’s actions in dealing with Ms Choi’s complaints regarding the University of Technology Sydney, NCAT and the Ombudsman. His Honour declined to recuse himself and the hearing proceeded.

14. The hearing was affected, however, by technical difficulties relating to the audio-visual link (AVL). The Court made an order under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) allowing the applicant (who is a litigant in person) to appear from South Korea. The Court persevered for a time but when the technical difficulties recurred, his Honour stood over the hearing of the notices of motion to the referrals Judge on 10 February 2025.

15. Justice Kirk was the referrals Judge on 10 February 2025. By email, Ms Choi asked that the hearing be adjourned and she also sought Justice Kirk’s recusal. His Honour granted Ms Choi’s application for the proceeding to be adjourned. The two motions were stood over to be heard by the referrals Judge on 24 February 2025. The following orders were made on 10 February 2025:

1. Adjourn the hearing of the applicant’s notice of motion filed on 10 December 2024 and the respondent’s notice of motion filed on 10 December 2024 to 24 February 2025, with a total time estimate of 1 hour for the hearing of both motions.

2. Any further evidence either side proposes to rely upon with respect to either notice of motion is to be filed and served by Thursday 13 February 2025.

Ms Choi’s recusal application

16. By an email sent to my Chambers at 4:13pm on 20 February 2025, Ms Choi sought my recusal on several grounds. The email states (without alteration):

I disqualify your Honour Acting Justice Griffiths from my matter on the following grounds.

(1) Your Honour has not been assigned yet (it is 16:20 pm NSW) for two notices of motion dated 10 Dec 2024. Also, my notice of motion dated 18 Feb 2025 was rejected and is not listed at all. However, Your Honour is aware of my matters so well and determined to hear my notice of motion dated 18 February 2025 which is not even listed. Moreover, your Honour's Chamber emailed me "If any party wishes to make an application to adjourn the hearing of any motion, such application should be made orally on Monday at the commencement of the hearing at 2:00pm (AEST)." That should be inferred that your Honour is going to hear the matter on 24 February 2025 at any sake. (See the attached doc "Griffiths not assigned.pdf"

(2) Thus, it is impossible for your Honour's Chambe to access my information under the standard circumstances. There is no email addresses of Mr Ben Davis and Mr Andrew Keevers who are the respondents' solicitors in the notice of appearance. It should be inferred that there was a private communication without me between the Chamber and the Crown Soclicitor's Office.

(3) One ground of my summons is Cavanagh J was influenced by Mr MacFarlan JA who left court on 22 Febrary 2023. I filed a complaint aginst MacFarlan JA (See the my complaint). A barrister Ms Tibbey at the Tribunal made a decision. A barrister Ms Gaven agreed to forged Consent Order...All the barristers at the 8th WentWorth Chamber and 11th WentWorth Chamber caused the procedural irregularities. His Honour Kirk JA is close to Cavanagh JA. I filed a complaint against his Honour Kirk JA at the Judicial Commission. Your Honour worked together with Kirk JA and are close each other. Your Honour also worked with MacFarlan JA and has a close personal friendship with Mr MacFarlan JA.

(4) My notice of motion dated 18 February 2025 to revoke the orders by McHugh JA on 3 Feb 2025 and Kirk JA on 10 Feb 2025 should be listed to be heard first. In the standard course, the hearings would have been adjourned. A directions for my Summons (SUPERVISORY JURISDICTION) should be listed pursuant to the order by McHugh dated 3 and 4 Feb 2025. In these circumstances, your Honours decision regarding applictions to adjourn only at the hearing dated 24 Feb 2025 is biased.

(5) The Case Name is Choi v OFFICE OF THE OMBUDSMAN trading as State Government Entity ABN 76 325 886 267, or at least the Case Name is in dispute.

However, your Honour put down Choi v NSW Ombudsman.

Any standard persons would expect your Honour's bias.

Therefore, I file my application to rescue your Honour acting Justice Griffiths from my matter. Thank you.

17. Ms Choi represented herself and appeared by audio-visual link from South Korea, where she now resides.

18. After hearing Ms Choi’s submissions in support of her recusal application and considering her evidence in support of that application, I indicated that I would not accede to her request and that I would provide reasons in due course. These are those reasons.

19. It is desirable to set out at the outset the well-established principles which apply to an application for recusal of a judicial officer on the basis of apprehended bias.

20. The test is whether a fair-minded and reasonably informed lay-observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of a question to be determined (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]).

21. The “double might” test involves two (possibly three) steps. The first step is the identification of what it is said might lead the judge to decide a question other than on the merits of that question. The second step is to articulate the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits (Ebner at [8]).

22. The third possible step is to determine the reasonableness of the asserted apprehension of bias (see Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59] per Gageler J and Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]).

23. The first basis for Ms Choi’s recusal application appears to relate to the fact that my Associate notified Ms Choi and the other parties that a further notice of motion filed by Ms Choi on 18 February 2025 would also be heard by me as referrals Judge on 24 February 2025 together with the two motions filed on 10 December 2024. When my Associate sent that email, my Chambers were aware of the fact that Ms Choi had filed the further notice of motion but were unaware that the Registry had declined to list it for hearing, apparently on the basis that Ms Choi had failed to provide a place in NSW as an address for service.

24. In those circumstances, on 21 February 2025, my Associate informed the parties, including Ms Choi, that the only motions listed for hearing on 24 February 2025 were the two motions dated 10 December 2024.

25. In paragraph 1 of her email, Ms Choi also complains that I had not been assigned to hear the two notices of motion. The nomination of which particular Judge of Court will sit as the referrals Judge weekly on the Monday is an administrative practice within the Court which is overseen by the head of jurisdiction. Such knowledge can be attributed to a reasonable lay observer. As the High Court stated in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13] (footnote omitted):

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.

26. The fact that a Registry document incorrectly stated that no judge had been assigned to hear the matters on 24 February 2025 does not give rise to apprehended bias. The same may be said concerning the notification given by my Chambers to the parties on 20 February 2025 that any application for an adjournment should be made at the outset of the hearing on 24 February 2025.

27. All the matters raised by Ms Choi in the first paragraph of her email fall far short of satisfying the relevant principles relating to apprehended bias.

28. The second basis relied upon by Ms Choi relates to the fact that, according to Ms Choi, I “worked together with Kirk JA and are close each other” and I have also worked with Macfarlan JA “and has a close personal friendship with Mr Macfarlan JA”.

29. Justice Kirk, the now retired Justice Macfarlan and myself were all barristers on the Eleventh Floor Wentworth Chambers. Mr Macfarlan KC was appointed a Justice of the Court of Appeal in September 2008 and retired in February 2023. I left the Eleventh Floor in April 2012 when I was appointed a Justice of the Federal Court. Upon my retirement from that Court in April 2022, I was appointed an Acting Justice of the Court of Appeal. The then Macfarlan JA and I overlapped on this Court for a period of approximately 10 months. Neither that historical fact, nor the fact that Justice Kirk and myself are currently members of this Court and Mr Macfarlan KC is formerly a member of the Court provides a sufficient basis to satisfy the relevant test. Nor does the fact that we were barristers on the same floor for several years. Ms Choi has failed to identify any logical connection between these professional relationships and the apprehension that I may not deal with the motions impartially. (See also Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 at [24]-[29]).

30. The third basis for the requested recusal relates to the matters raised by Ms Choi in paragraph 4 of her email.

31. It is difficult to understand this complaint. Ms Choi and the other parties were advised by my Associate on 20 February 2025 that if she wished to adjourn the hearing of the motions listed to be heard on 24 February 2025, she should make that application at the commencement of that hearing. I do not consider that a fair-minded lay observer with a knowledge of the basic procedures of the Court might consider that these matters indicate that I might not bring an impartial mind to determining the motions or any application for recusal.

32. As to Ms Choi’s complaint that orders had been made on 3 and 4 February 2025 that her summons should be listed for directions, the orders made on those days simply stood over the summons and both notices of motion to the referrals Judge on 10 February 2025, on the basis that both motions were to be heard on that day.

33. In accordance with general practice, the making of directions in respect of the amended summons should await the outcome of the motions in circumstances where the Ombudsman is seeking to have the amended summons summarily dismissed. A reasonably informed lay observer should be attributed with general knowledge concerning basic Court procedures, including the general practice to give priority to the hearing and determination of an application for summary dismissal and to defer giving further directions in the substantive proceedings until the outcome of a summary dismissal application is known.

34. As to Ms Choi’s submission that her notice of motion filed 18 February 2025 ought to have been listed to be heard first, as noted above, the Registry declined to list that motion for hearing because Ms Choi had not provided a place in NSW as an address for service.

35. Ms Choi also asserts that there is apprehended bias because her proceedings are still being referred to as “Choi v NSW Ombudsman” and not by her preferred name for the first defendant/respondent. Ms Choi has not identified the requisite logical connection between this matter and an apprehension that the motions would not be heard and determined impartially. Describing the proceedings in the same formal manner as described by the Registry could scarcely amount to apprehended bias. The Court was well aware of Ms Choi’s preferred naming of the first respondent, as raised in her 10 December 2024 motion. That is the very matter which was to be heard on 24 February 2025.

36. Furthermore, by an email sent to my Chambers on the day of the hearing at 2:40am Ms Choi asked me to disqualify myself “as soon as possible” because she said one of the grounds for her application is that she had filed a complaint against my conduct with the Judicial Commission of NSW. Subsequently, by an email sent on the same day at 11:20am Ms Choi wrote as follows (without alteration):

Dear Your Honour Acting Justice Griffiths,

I do not have your Honour personally.

However, I filed a complaint against your Honour at the Judicial Commission of NSW.

The reasons are reasonable.

Please disqualify yourself.

I am going to file my complaints against his Honour McHugh who made orders in 2024/281242-2 which was not even listed, her Honour Ward who agreed Ms Kaban's orders of 17 July 2022 made even before the hearing etc.

I will apply to be listed the Suprme Court of NSW in the Guinness Book of World Records as the court and lawsuit with the most ignorant judges and solicitors. My 12-year-old son and law college students said the orders without name of the Act are invalid and eroneous. However, M Tibbey, Chen J, Cavanagh J, Adam J, McHugh JA, Ms Gaven, Ms Megan Smith, Mr Andrew Keevers, Ms Rebecca Barbera, Mr Nicholas and so on said the invalid orders are valid by listing a hearing for more than 3 years. During the proceedings, several organ traders were sent out. What a joke! Only NCAT's registrar and sc.finance gave the case numbers and decision to waive or postpone fee.  

Thank you.

Regards

JChoi

37. Annexed to the email was a copy of a complaint to the Judicial Commission of NSW. The complaint is dated 20 February 2025 and is signed by Ms Choi. Her complaint is as follows (without alteration):

[1. On/around 20 Feb 2025 at/around 8am, Griffths J breached the privacy law by accessing my information unlawfully. It is impossible for Griffiths to access my information in 2024/281242 before assignment. Griffiths JA was not even assigned at 2:00AM 21 Feb 2025.

2. Griffiths J had a private communication with the respondent's legal representative. Mr Nicholas and Ms Smith are recorded in the notice of appearance. However, the Chamber emailed to Mr Davis and Keevers as well.

3. Griffiths J stated he would hear my notice of motion sealed on 18 Feb 2025. However, my motion was rejected on 18 Feb 2025 and has not been even listed.

4. I was not permitted to request the hearings dated 24 Feb 2025 to be adjourned before the hearings, which was pretty biased. The hearings were caused by the orders of 4 and 10 Feb 2025. My notice of motion dated 18 Feb 2025 was to revoke these orders. Thus, the hearings listed 24 Feb 2025 should be adjourned.

38. As at the time of the hearing, no formal notification of the complaint had been received from the Judicial Commission.

39. Ms Choi’s email dated 20 February 2025 (see at [16] above), her two emails dated 24 February 2025 and a copy of her complaint to the Judicial Commission were tendered by her (Exhibit 1).

40. It is well established that judges should act with appropriate restraint in determining whether or not to accede to a recusal request. In Re JRL; Ex Parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39 Mason J said:

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

41. It is not appropriate for me to comment at this stage on the substance of Ms Choi’s complaint. It will be a matter for the Judicial Commission to determine how it will respond to any formal complaint, including whether or not the complaint should be summarily dismissed pursuant to s 20(1) of the Judicial Officers Act 1986 (NSW), as expressly referred to at paragraph 10 of the pro forma instructions given to complainants by the Judicial Commission.

42. As a reasonably informed lay observer would appreciate, I am duty bound to hear and determine the motions consistently with my judicial oath irrespective of whether a complaint has been lodged with the Judicial Commission. In my view it is highly undesirable that a litigant should achieve the recusal of a judge by simply lodging a complaint with the Judicial Commission with the evident purpose of facilitating such a recusal. It may also be noted as part of the procedural history of these matters that Ms Choi also sought the recusal of both Justices McHugh and Kirk.

43. Finally, in oral address, Ms Choi sought my recusal on the basis of my association with the Honourable Mark Speakman SC MP on the basis that I was a partner at Blake Dawson Waldron when Mr Speakman SC MLA was also a partner. I resigned my partnership in 1994, when I was called to the NSW Bar.

44. It appears that Ms Choi’s grievance relates to her interest in having the Attorney-General become involved as amicus curiae in litigation some years ago when Mr Speakman was Attorney-General. He is currently Leader of the Opposition in NSW. He is not a party to the proceeding or a person with any interest in the proceeding.

45. In these circumstances, I do not consider that a fair-minded lay observer with a broad knowledge of the material objective facts and background might apprehend that I might not bring an impartial mind to these proceedings simply because Mr Speakman and I were partners at Blake Dawson Waldron approximately 30 years ago. Ms Choi not only failed to identify what it is said might lead me to decide the motions other than on their legal and factual merits because of my past association with Mr Speakman, she also failed to articulate the logical connection between that distant association and the feared deviation by me from deciding these matters on their merits.

46. For all these reasons, I declined to recuse myself.

The two motions

47. I will address Ms Choi’s motion first. Before doing so I will set out part of Cavanagh J’s reasons for judgment in Choi v NSW Ombudsman [2024] NSWSC 352 at [8]-[32] which summarise (at some necessary length) the relevant background (footnotes omitted):

[8] The plaintiff has been pursuing her grievance since the termination of her enrolment in a Bachelor of Nursing degree at the University of Technology (“UTS”) on 20 December 2016. She continues to maintain that the termination of her enrolment was discriminatory in the sense that she was suffering from what she describes as a “mental disorder”. She says that while she was a nursing student at UTS she was assessed as a mentally ill person under the Mental Health Act 2007 (NSW). She says that in April 2015 she registered as a disability student at UTS.

[9] She has a number of grievances for which she seeks redress and now compensation. Indeed, during the hearing she sought to amend her claim for compensation from the original figure of $100,000 to $1 million. The first defendant did not oppose the amendment and I granted leave to the plaintiff to amend the summons to change the amount claimed.

[10] The plaintiff enrolled in the Bachelor of Nursing degree at the UTS in 2014. She says that during her course she was referred to UTS student services due to her repeated “emailing” disability (in April 2015). She says that she had been registered as a disabled student with alcohol abuse and depression on 20 April 2015.

[11] On 21 September 2015, the Nursing and Midwifery Council of New South Wales restricted her nursing registration. She then sent an anonymous complaint to the first defendant about UTS.

[12] She says that on 24 September 2015, the first defendant sent her anonymous complaint to Professor Daly at UTS, thereby wrongly disclosing her name and email address. After receiving a response from UTS in respect of the complaint, the first defendant determined that there had been an adequate response to the plaintiff's complaint and that it ought not inquire any further.

[13] On 8 October 2015, Mr Michael Conaty, the investigations officer for the first defendant, wrote to the plaintiff in the following terms:

“I have made enquiries with the university, and I am satisfied they were responding in an appropriate way. Accordingly, I will now close our file in this matter.”

[14] The plaintiff was not satisfied with this response. She sought internal review. That was conducted on 7 December 2015.

[15] The plaintiff then made further submissions in October 2016. However, the first defendant again determined not to undertake any further investigation into her complaint. She sought further review and received a response, dated 13 February 2017 setting out the basis of the first defendant's investigation and the absence of any wrongful conduct on the part of UTS. The first defendant again informed the plaintiff that it would not be taking any further action on her complaint.

[16] The plaintiff did not accept this. She again wrote to the first defendant pointing out her long history of depression and anxiety and that she had been diagnosed with obsessive compulsive disorder and borderline personality disorder. She urged the first defendant to take further action, threatening to lodge a complaint with the Anti-Discrimination Board of NSW (‘ADNSW’).

[17] As the first defendant did not take any further action, she lodged a complaint with ADNSW. She alleged that the first defendant had refused to investigate her complaints against UTS because of her disabilities and that she had been victimised.

[18] On 2 May 2018, ADNSW referred her complaint to the Tribunal.

[19] On 9 October 2018, Deputy President Hennessey appointed a guardian ad litem in each of the two proceedings she was pursuing at the Tribunal. The plaintiff sought internal review and then judicial review in this Court.

[20] The proceedings filed by the plaintiff in this Court were referred directly to the Court of Appeal by Wright J on 17 July 2020.

[21] On 23 April 2021, the Court of Appeal dismissed the plaintiff’s summons seeking judicial review but granted leave to appeal and allowed her appeal in part in respect of the appointment of a guardian ad litem. The matter was remitted to the Tribunal for further consideration.

[22] On 26 July 2021, the matter came before Senior Member Montgomery, who was in receipt of a statement and submissions from the plaintiff dated 23 June 2021. There was no appearance by the plaintiff.

[23] Senior Member Montgomery made a number of orders (the 2021 orders) including that:

(1) the publication of evidence given before the tribunal is prohibited.

(2) Mr David Wong may appear on behalf of the respondent in the proceedings.

(3) the request for guardian ad litem to act for the plaintiff is refused.

(4) the proceedings listed for case conference on 25 August 2021.

[24] Following the determination of the Court of Appeal and the 2021 Orders, the matter was referred to Principal Member Britton who made orders for the exchange of evidence and submissions.

[25] The matter was then referred to Senior Member Tibbey of the Administrative and Equal Opportunity division and dealt with on the papers.

[26] The Tribunal published its decision on 17 March 2022 (the refusal orders). Although the Senior Member was satisfied that the plaintiff had disabilities at the time of her complaints to the first defendant, she observed that simply having a disability is not sufficient to prove a complaint of disability discrimination and/or victimisation.

[27] The Senior Member found that there was no evidence that the way in which the first defendant’s inquiries were conducted was discriminatory. Nor was there any basis to draw an inference that the first defendant acted in a discriminatory matter. There was no evidence to support the submission that she was discriminated against because she provided voluminous submissions.

[28] The Senior Member accepted that the first defendant made reasonable and appropriate inquiries in accordance with the requirements of the Ombudsman Act 1974 (NSW). The Senior Member was satisfied that it did so in accordance with its normal policies and in a non-discriminatory manner. The Senior Member noted that ADNSW concluded that the complaint was lacking in substance, and that was a matter to which the Tribunal was entitled to have regard to in any application for leave pursuant to s 96 of the Anti-Discrimination Act 1977 (NSW).

[29] The Senior Member was not satisfied that the applicant had any reasonable prospects of success and declined to grant leave to proceed.

[30] A similar finding was made in respect of the victimisation allegation.

[31] The plaintiff then appealed to this court. Those proceedings were dismissed on the application of the first defendant on the basis that no appeal lay to this court from the decision of the Senior Member (Choi v NSW Ombudsman [2022] NSWSC 1681). As Chen J said, that decision did not prevent the plaintiff from pursuing proceedings in this court for judicial review.

[32] The plaintiff appears to have taken up the reference to judicial review and commenced the current proceedings seeking judicial review in respect of the same two decisions.

(a) Ms Choi’s motion filed 10 December 2024

48. Ms Choi’s motion seeks to have the Ombudsman’s motion summarily dismissed primarily on the basis that the Registrar invalidly changed the name of the first respondent. Ms Choi also claims that there is no retainer between the first respondent as named by her in the amended summons and the Crown Solicitor’s Office. Furthermore, she complains that any materials in the proceeding which have been provided by the Crown Solicitor’s Office are invalid because that Office is not authorised to act for the first respondent.

49. In her motion filed 10 December 2024 Ms Choi seeks the following seven orders (without alteration):

1 Ms Karen Smith’s notice of motion for NSW Ombudsman filed on 10 December 2024 be struck out and dismissed.

2 Notice of Appearance filed on 11 October 2024 be struck out and dismissed.

3 Notice of Appearance filed on 9 December 2024 be struck out and dismissed.

4 The JUDGMENT/ORDER (The first Respondent file a notice of motion to strike out Choi’s proceeding) by the Registrar Mr P Onisforou made dated 2 December 2024 be revoked

5 The JUDGMENT/ORDER ( The first Respondent, the agency, THE OFFICE OF THE OMBUDSMAN is amended to NSW Ombudsman) by the Registrar Mr POnisforou made dated 10 December 2024 be revoked

6 The first respondent pay the costs.

7 Such further or other order as the Court thinks fit.

50. I understood Ms Choi to rely upon the same six affidavits which are described at [63] below.

51. In her written submissions dated 31 January 2025 in support of her motion, Ms Choi contends as follows:

7. Mr NSW Ombudsman is a statutory officer and the Government Sector Employment Act 2013 (“GSE Act”) does not apply to the employees according to the Part 3 Separate agencies of the GSE Act. The first Respondent, OFFICE OF THE OMBUDSMAN trading as State Government Entity ABN 7632588626726, is a statutory office under the Ombudsman Act (NSW). On 14 February 2022, Mr NSW Ombudsman provided me with a delegation schedule in 2018/226998 under the GIPA Act showing the Crown Solicitor has no jurisdiction to represent the Respondent. EXHIBIT JCHOI-15 pp70-73, pp78-92, pp97-104.

8. No records shows the Respondent requested the Crown Solicitor to be its legal representative. No contract between the Respondent and the Crown Solicitor. Department of Communities and Justice, the Respondent and the Crown Solicitor shared and disclosed my personal information without my consent. I am preparing the legal action, claiming that they breached my privacy. By doing so, the DCJ would not store and abuse all the NSW people’s information.

9. Sir Macquarie would cry if his Honour would come back to life and see what the Crown Solicitor is doing against the socially-disadvantaged single parents and so on. The Crown Solicitor is not meant to fight against me in the proceedings Choi v the first Respondent under the Anti-Discrimination Act (NSW). Further, the Crown Solicitor has no jurisdiction to hire a barrister for the Respondent. EXHIBIT JCHOI-15 pp78-92

10. On 30 June 2022 in 2022/127132 whose fee application was granted by Mr Onisforou, at the directions, a barrister Ms Gaven agreed to the party name “OFFICE OF THE OMBUDSMAN trading as State Government Entity ABN 7632588626726”. However, the Registry did not amend the party name from NSW Ombudsman to the OFFICE OF THE OMBUDSMAN trading as State Government Entity ABN 7632588626726. It should be inferred that the registry is aware the Crown Solicitor and a barrister are not authorized to represent the OFFICE OF THE OMBUDSMAN trading as State Government Entity ABN 7632588626726.

11. The High Court of Australia says the party name in the Judgment should be the same with the order. Thus, the party name should be amended to the OFFICE OF THE OMBUDSMAN trading as State Government Entity ABN 7632588626726. EXHIBIT JCHOI15 pp105-178

12. The Crown Solicitor’s notice of motion is like a repeated ritual. It is the fourth time in 2018/299612. (see my submissions and affidavit dated 30 January 2025)

13. Mr Riznyczok would not have list an interlocutory hearing in response to the Crown Solicito’s [sic] ridiculous notice of motion. Thus, any materials by the Crown Solicitor should be rejected.

52. Ms Choi also provided further written submissions dated 18 and 19 February 2025 in support of her motion. She repeated her claims concerning the correct name of the Ombudsman as a party in the proceedings and the authority of the Crown Solicitor’s Office to act for the Ombudsman.

53. These contentions and claims are rejected. It is plain from the terms of the Ombudsman Act 1974 (NSW) that the NSW Ombudsman is a statutory office holder and, as a legal entity, is able to sue and be sued in that name (subject to relevant provisions in the Ombudsman Act). The first respondent is appropriately named as the NSW Ombudsman or, alternatively, could be referred to as the Office of Ombudsman (which was the title used in Kaldas v Barbour (2022) 107 NSWLR 341; [2017] NSWCA 275 at [231]-[233] per Basten JA).

54. Equally, the NSW Ombudsman (or the Office of Ombudsman) is empowered to retain legal representation in legal proceedings, including the Crown Solicitor’s Office. It is evident from the terms of Ms Lewis’ affidavit dated 10 December 2024 that she is a solicitor employed in the Crown Solicitor’s office and that office has been retained by the NSW Ombudsman to represent the Ombudsman in these proceedings.

55. Ms Choi’s insistence that the proper name of the first respondent is “Office of the Ombudsman trading as State Government Entity ABN 76 325 886 267” is misconceived. Under ss 24 and 25 of A New Tax System (Australian Business Number) Act 1999 (Cth) (ABN Act), the Commissioner of Taxation is required to maintain an Australian Business Register containing the details of various “entities” and their particular Australian Business Number (ABN). The object of this regime, which was introduced in 1999 alongside the GST system, is to “make it easier for businesses to conduct their dealings with the Australian government”, including by allowing them “to identify themselves reliably for the purposes of taxation laws” (ABN Act, s 3). In furtherance of that object, government agencies are treated as if they are separate “entities” in their own right (ABN Act, s 5); otherwise, for taxation purposes, those government agencies would not be treated as separate entities but rather would form part of the broader body politic, such as New South Wales or the Commonwealth. This regime is not directed to the identification of a legal entity for the purposes of judicial review or any other proceedings in this Court.

56. As to Ms Choi’s challenge to the role of the Crown Solicitor as legal representative for the Ombudsman, her complaint appears to be related to her claim that since the Ombudsman has not been given the name she prefers the notice of appearance filed with respect to the other name is invalid. It is well established that the onus of proving that a lawyer lacks authority to represent a client lies on the person who asserts the lack of authority: see Doulaveras v Daher (2009) 253 ALR 627; [2009] NSWCA 58 at [160] per Campbell JA and the cases cited therein. That onus has not been discharged here. I have already explained why the Registry was correct not to use Ms Choi’s preferred name. Ms Choi has failed to make good her complaints regarding the name of the Ombudsman and the associated legal representation.

57. There is another problem with Ms Choi’s motion. It impermissibly seeks to reagitate matters which were raised by her previously in her motion filed 18 April 2024, which was dismissed by N Adams J (see at [7] above).

58. Finally, in oral address, Ms Choi made extensive submissions concerning a consent judgment/order dated 31 July 2024 filed at 5:42pm, which she claimed to be forged. The document, which is recorded as relating to proceedings involving the “Office of the Ombudsman ABN 76 325 886 267” as first applicant and Ms Choi as first respondent, states that it was filed by Ms Choi. Ms Choi drew attention to different times stamped on documents filed by her. She also relied upon an email dated 17 February 2025 which she sent to the Registry and inquired about the consent judgment. The Registry replied and explained that Ms Choi had filed a new summons as a consent judgment/order on an existing matter instead of creating a new matter.

52. Ms Choi has failed to provide any credible and admissible evidence to make good her serious allegation that the consent judgment was forged. A far more plausible explanation for what occurred has been provided by Mr Keevers, who appeared for the Ombudsman. It is to the effect that it appears that Ms Choi inadvertently filed the consent judgment/order relating to proceedings that had been commenced in 2022. Subsequently, when she queried the matter with the Registry and suggested that the Ombudsman had fraudulently sought to enter the consent judgment/order she was informed of her error and was told that she should commence new proceedings. As previously mentioned Ms Choi then filed her original summons (supervisory jurisdiction) on the same day, being 31 July 2024.

53. In any event, as the Court sought to point out to Ms Choi during the course of the hearing, it is difficult to discern any prejudice arising from the consent judgment/order. Ms Choi was also permitted to file an amended summons (supervisory jurisdiction) on 28 November 2024. It is not the case that she was prevented from filing that document because of the uncertain events surrounding the consent judgment/order filed 31 July 2024.

54. For these reasons, Ms Choi’s motion filed 10 December 2024 will be dismissed, with costs.

(b) Ombudsman’s motion filed 10 December 2024

62. The Ombudsman relies on an affidavit dated 10 December 2024 affirmed by Ms Lisa Lewis. The exhibit to her affidavit was tendered as Exhibit A. Ms Choi confirmed that she had been served with an electronic copy of the Exhibit. Ms Lewis describes the lengthy procedural history of the matters, including the proceedings before Cavanagh J which resulted in orders dated 5 and 9 April 2024, as well as further proceedings before N Adams J, which culminated in orders dated 31 July 2024 in which Ms Choi’s notices of motion filed on 18 April and 13 May 2024 were dismissed. Her Honour upheld a notice of motion filed on 3 May 2024 by the Ombudsman.

63. Ms Choi relies on six affidavits by her filed on 10 December 2024, 30 January 2025, 31 January 2025, 8 February 2025, 19 February 2025 and 24 February 2025. She also tendered voluminous exhibits, which in many instances repeated documents included in earlier exhibits. Some of the material in the affidavits was scandalous and contained assertions of corruption on the part of several named judges and other individuals, including the Attorney-General. Rather than take up extensive time addressing the many portions of the evidence which were scandalous, the Ombudsman adopted the sensible course of submitting that the material should be admitted subject to relevance. Large parts of Ms Choi’s affidavits are in the nature of submissions rather than evidence.

64. For completeness, I should confirm that I have considered Ms Choi’s affidavits and their exhibits not only in respect of the Ombudsman’s motion but also in respect of her own motion.

65. Both Ms Choi and the Ombudsman filed written submissions.

66. Rule 13.4 of the UCPR empowers the Court to dismiss proceedings generally or in relation to any claim for relief where, amongst other things, no reasonable cause of action is disclosed or the proceedings are an abuse of process.

67. Under s 91 of the Civil Procedure Act 2005 (NSW), although generally a plaintiff is not prevented from bringing fresh proceedings where earlier proceedings have been dismissed, there is an exception in s 91(2). That exception is if, following a determination on the merits in any proceedings, the proceedings and any claim for relief in the proceedings are dismissed, the plaintiff is not entitled to claim any relief in respect of the same cause of action in any subsequent proceedings commenced in that or any other court.

68. I accept the Ombudsman’s submission that s 91(2) applies to the present proceeding because Ms Choi is claiming relief in respect of the same cause of action which was dismissed by Cavanagh J following his Honour’s determination on the merits in the earlier judicial review proceeding in Choi v NSW Ombudsman [2024] NSWSC 352. As noted above, that proceeding related to the same two decisions which are challenged in the amended summons.

69. For these reasons, the Ombudsman’s motion should be upheld, with costs. Ms Choi’s amended summons will be dismissed.

Conclusion

70. For these reasons, the amended summons filed 28 November 2024 will be dismissed. Ms Choi must pay the Ombudsman’s costs of and incidental to the motion filed 10 December 2024.

71. The applicant’s motion filed 10 December 2024 will be dismissed, with costs.

**********

Decision last updated: 28 February 2025