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

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.
On 14 October 2024, the Registrar substituted the…

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.

Continue reading Choi v NSW Ombudsman

Details

AGLC: Choi v NSW Ombudsman [2025] NSWCA 26
Case: [2025] NSWCA 26
Decision Date: 28 February 2025

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Ms Choi sought orders against the NSW Ombudsman. The dispute concerned an application for the recusal of a judge, based on allegations of apprehended bias arising from an association and the outcome of internal court administrative procedures, following a complaint made to the Judicial Commission.

The primary legal issues before the Court were whether there was a reasonable cause of action disclosed in the proceedings and whether the proceedings constituted an abuse of process, warranting summary dismissal. The Court was also required to consider the application for recusal based on apprehended bias.

Griffiths AJA dismissed the applicant's amended summons under rule 13.4 of the Uniform Civil Procedure Rules 2005, finding that no reasonable cause of action was disclosed and that the proceedings were an abuse of process. The Court also dismissed the applicant's notice of motion. The Court ordered that Ms Choi appear by audio-visual link from South Korea pursuant to section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) and ordered the applicant to pay the first respondent's costs.

Orders

Orders of the court

(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.

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.

Citations

AGLC Citation

Choi v NSW Ombudsman [2025] NSWCA 26

Most Recent Citation

High Court Bulletin [2025] HCAB 5

Cases citing this decision · 5 of 5 shown

Rahman v Rahman
[2024] NSWCA 198 Para 1

…rseded by the orders of the District Court: [33]. Rahman v Rahman (No 2) [2024] NSWCA 109; Dyason v Butterworth [2015] NSWCA 52; Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68; Singh v Hicks and Nissan [2021] NSWCA 80; Dogramaci v Director of Public Prosecutions (NSW) [2022] NSWCA 83 cited.…
Rahman v Rahman (No 2)
[2024] NSWCA 109 Para 16

…015] NSWCA 52 at [34]-[35] (McColl JA); Dogramaci v Director of Public Prosecutions (NSW) [2022] NSWCA 83 at [5] (Macfarlan JA); Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68 at [21] (Meagher, White, Brereton JJA); Singh v Hicks and Nissan [2021] NSWCA 80 at [17]-[18], (Gleeson JA)).…
Choi v Secretary, Department of Communities and Justice
[2022] NSWCA 170 Para 18

…n Board to refer a complaint by her to NCAT) (see the background as explained in earlier proceedings in this Court – Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68 ( Choi v NSW Ombudsman )).…
CM v Secretary, Department of Communities and Justice
[2022] NSWCA 120 Para 21

…es Legislation Amendment (Children) Act 2021 (NSW), with effect from 8 December 2021, which in turn appear to be a response to Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68. (The transitional provision, which validated the appointments of some guardians ad litem appointed prior to 8 December 2021, and ther…
High Court Bulletin
[2025] HCAB 5

…Supreme Court of New South Wales (Court of Appeal) [2025] NSWCA 26…

View all 5 citing cases →

Cases cited in this decision · 12 of 12 shown

Choi v NSW Ombudsman
[2024] NSWSC 940 Para 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 Soli…
Choi v NSW Ombudsman
[2024] NSWSC 352 Para 6

…e 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, mad…
Choi v NSW Ombudsman
[2022] NSWSC 1681

…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 t…
Charisteas v Charisteas
[2021] HCA 29 Para 22

…ion 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]).…
Kaldas v Barbour
[2017] NSWCA 275 Para 53

…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).…
Isbester v Knox City Council
[2015] HCA 20 Para 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]).…
Bakarich v Commonwealth Bank of Australia
[2010] NSWCA 43 Para 29

…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]).…
Doulaveras v Daher
[2009] NSWCA 58 Para 56

…hat 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…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 20

…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]).…
Johnson v Johnson
[2000] HCA 48 Para 25

…ead 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):…
Webb v the Queen
[1994] HCA 30

…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…
Re JRL; Ex parte CJL
[1986] HCA 39 Para 40

…hould 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:…

Legislation cited in this decision · 9

Uniform Civil Procedure Rules 2005 (NSW)
13.4, 14.28 3 mentions (from Para 10)
Civil Procedure Act 2005 (NSW)
91 2 mentions (from Para 67)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
5B 2 mentions (from Para 14)
Judicial Officers Act 1986 (NSW)
20 2 mentions (from Para 41)
A New Tax System (Australian Business Number) Act 1999 (Cth)
1 mention (from Para 55)
Anti-Discrimination Act 1977 (NSW)
1 mention
Government Sector Employment Act 2013 (NSW)
1 mention
Mental Health Act 2007 (NSW)
1 mention
Ombudsman Act 1974 (NSW)
1 mention (from Para 53)

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