Choi v Secretary, Department of Communities and Justice

Case •

[2022] NSWCA 170

•

01 September 2022

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Choi v Secretary, Department of Communities and Justice [2022] NSWCA 170
Hearing dates: 28 July 2022
Date of orders: 1 September 2022
Decision date: 01 September 2022
Before: Ward P; Meagher JA; Leeming JA
Decision:

1.   Dismiss with costs Ms Choi’s summons dated 6 April 2022 and filed 20 April 2022, seeking leave to appeal from the decisions of Bellew J of 9 March 2022 and 22 March 2022, respectively.

2. Dismiss with costs (pursuant to r 13.4 of the UCPR as frivolous and vexatious and an abuse of process) Ms Choi’s summons dated 9 June 2022 and filed 13 June 2022, seeking judicial review of the said decisions of Bellew J.

3.   Dismiss with costs Ms Choi’s notice of motion dated 21 June 2022.

4.   Direct the Registrar not to file the notices of motion dated 27 and 28 July 2022 forwarded by email by Ms Choi.

5.   Direct the Registrar that, should Ms Choi file a further motion seeking, in substance, leave to appeal from the decisions of Bellew J dated 9 March 2022 and 22 March 2022 respectively, the Registrar shall promptly vacate the return date, notify the parties, and refer the papers to a judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Ms Choi should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.

Catchwords:

APPEALS — Procedural fairness — Denial of procedural fairness — Where primary judge alleged to have worn a brown suit and no tie — Whether failure of primary judge to wear a robe and wig a denial of procedural fairness or a breach of the Court Attire Policy — No denial of procedural fairness

APPEALS — Right of appeal — Relationship with judicial review — Where applicant sought leave to appeal from two decisions of the primary judge and judicial review of the same two decisions — Whether primary judge was exercising an administrative function in light of his Honour’s omission to wear robes and a wig

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — Whether judicial review proceedings an abuse of process

APPEALS — Leave to appeal — Principles governing — Public importance

APPEALS — From exercise of discretion — Whether House v The King (1936) 55 CLR 499; [1936] HCA 40 type error disclosed by the primary judge

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 4(1)(d), 41, 80(2)(a), 83(1)

Civil Procedure Act 2005 (NSW), ss 56 and 98(4)(c)

Civil Procedure Regulation 2017 (NSW), ss 41, 80(2)(a) and 83(1), cl 11(1)

Court Security Act 2005 (NSW), ss 4, 9, 9A and 9B

Government Information (Public Access) Act 2009 (NSW), ss 12(2)(e), 65(1), 68(1), 80(c), 80(j), 100, 101(1) and 125

Government Sector Employment Act 2013 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 4.10(5)(b), 13.4(1), 36.15, 16.16, 36.15, 36.16, 42.1, 49.19, 50.12, 51.10(1)(b) and 59.10

Vexatious Proceedings Act 2008 (NSW), s7

Cases Cited:

Attorney General (New South Wales) v Quin (1990) 170 CLR 1; [1990] HCA 21

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430

Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69

Champion Homes Pty Ltd v Guirgis [2013] NSWCATAP 54

Chandrasekaran v Navaratnem [2021] NSWSC 1446

Choi v NSW Department of Justice [2019] NSWCATAD 248

Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68

Choi v Secretary, Department of Communities and Justice (No 2) [2022] NSWSC 301

Choi v Secretary, Department of Communities and Justice [2020] NSWCATAD 154

Choi v Secretary, Department of Communities and Justice [2021] NSWCATAP 8

Choi v Secretary, Department of Communities and Justice [2022] NSWSC 190

Choi v Secretary, Department of Justice and Communities [2022] NSWCA 172

Choi v University of Technology Sydney (No 2) [2020] NSWCA 342

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64

Clarke v State of New South Wales [2015] NSWCA 27

Coffs Harbour City Council v Noubia Pty Ltd [2022] NSWCA 32

Coles v Burke (1987) 10 NSWLR 429

Collier v Lancer (No 2) [2013] NSWCA 186

Collins v Urban [2014] NSWCATAP 17

Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232

Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57

Elphick v Westfield Shopping Centre Management Company Pty Ltd (2011) 216 IR 41; [2011] NSWCA 356

Fitness First Australia Pty Ltd v Dubow (2011) 251 FLR 241; [2011] NSWSC 351

Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30

GAR v R [2021] NSWCCA 265

Ghosh v Miller (No 2) [2018] NSWCA 212

Gibson v Drumm [2016] NSWCA 206

Hammond v State of New South Wales [2015] NSWCA 304

Hamzy v Commissioner of Corrective Services (NSW) (2011) 80 NSWLR 296; [2011] NSWSC 120

Hassan v Sydney Local Health District (No 5) [2021] NSWCA 197

Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital [2021] HCASL 230

House v The King (1936) 55 CLR 499; [1936] HCA 40

Huddart, Parker and Co v Moorehead (1909) 8 CLR 330; [1909] HCA 36

Konneh v New South Wales (No 2) [2013] NSWSC 390

Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130

Micallef v ICl Australia Operations Pty Ltd [2001] NSWCA 274

Moran v Armidale Local Aboriginal Lands Council [2019] NSWCA 220

Palmer v Ayers (2017) 259 CLR 478; [2017] HCA 5

Pell v Hodges [2007] NSWCA 234

Penson v Titan National Pty Ltd [2015] NSWCA 404

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

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; [1970] HCA 8

R v Turner; Ex parte Marine Board of Hobart (1927) 39 CLR 411; [1927] HCA 15

Samootin v Shea [2013] NSWCA 312

Shamieh trading as Consolidated Lawyers v Easy Buy International Pty Limited [2010] NSWSC 970

Singh v State of NSW; Singh v Lekhwar [2021] NSWCA 260

Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Waterside Workers’ Federation (Aust) v JW Alexander Ltd (1918) 25 CLR 434; [1918] HCA 56

Whitehead v Nickells [2013] NSWSC 1446

Ye v Chen [2021] NSWSC 1098

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

Texts Cited:

B Debelle, “Judicial Independence and the Rule of Law‟, (2001) 75(9) Australian Law Journal 556

Category:Procedural rulings
Parties: Jae Hee Choi (Applicant)
Secretary, Department of Communities and Justice (Respondent)
Representation:

Counsel:
JH Choi (Applicant in person)
J Cahill (Solicitor, Respondent)

Solicitors:
Department of Communities and Justice (Respondent)
File Number(s): 2022/00123488; 2022/00170633
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Common Law
Citation:

[2022] NSWSC 190; [2022] NSWSC 301

Date of Decision:
09 March 2022
Before:
Bellew J
File Number(s):
2021/58322

JUDGMENT

  1. THE COURT: Before the Court for hearing on 28 July 2022 were two proceedings commenced by the applicant (Ms Choi) in relation to decisions made by Bellew J in March this year in proceedings in the Common Law Division: the first, on 9 March 2022 (Choi v Secretary, Department of Communities and Justice [2022] NSWSC 190 (the 9 March 2022 Decision)), dismissing Ms Choi’s application for an extension of time to file an appeal from a decision of the NSW Civil and Administrative Tribunal (NCAT); and the second, on 22 March 2022 (Choi v Secretary, Department of Communities and Justice (No 2) [2022] NSWSC 301 (the 22 March 2022 Decision)) in relation to the costs of the application that had been dismissed on 9 March 2022.

Proceedings in this Court

  1. Following the two March 2022 decisions, Ms Choi has brought two separate sets of proceedings in this Court, as party to which she joined: the Department of Communities and Justice (the name of which was corrected by the Registrar to the Secretary, Department of Communities and Justice – a change with which Ms Choi cavils); “Victim Services” (the name of a business unit within the Department but which Ms Choi contends is a legal entity with statutory obligations in relation to applications for access to information under the relevant legislation); the Attorney-General; and the Head of the Department of Communities and Justice, Mr Michael Tidball.

  2. In these reasons, where reference is made to the “respondent” it is to the Secretary, Department of Justice and Communities but (when dealing with the Secretary’s summary dismissal application on Ms Choi’s application for judicial review) reference will be made to the “Secretary” to avoid confusion – as he is there the applicant to the motion and Ms Choi is the respondent to that motion.

  3. The first of the two sets of proceedings (being proceeding number 2022/123488), which will be referred to as the Appeal Proceeding, is an application by Ms Choi (by summons dated 6 April 2022 and stamped as filed on 20 April 2022) in which Ms Choi seeks, among other relief, leave to appeal from the orders made by Bellew J in the Common Law Division proceeding. With that summons there was a draft notice of appeal and document headed Summary of Argument, both dated 6 April 2022 (this being relevant to note in relation to the subsequent complaint by Ms Choi as to the stage at which a direction was made that the Appeal Proceeding be listed for a leave only hearing in the first instance). The draft notice of appeal and draft Summary of Argument were subsequently amended by Ms Choi and this Court has proceeded on the basis that those represent the latest iterations of the appeal and submissions in relation thereto that Ms Choi wishes to bring.

  4. The second of the two sets of proceedings (being proceeding number 2022/170633), which will be referred to as the Judicial Review Proceeding, is an application by Ms Choi (by summons dated 9 June 2022 and stamped as filed on 13 June 2022 but which Ms Choi identifies elsewhere as having been lodged also on 6 April 2022 – see order 13 of the orders sought in her subsequent 21 June 2022 notice of motion) in which Ms Choi, again amongst other relief, seeks judicial review of the same decisions the subject of the Appeal Proceeding (the 9 March 2022 and 22 March 2022 Decisions) and an order that the three judges in the Judicial Review Proceeding hear the matter concurrently with her summons seeking leave to appeal in the Appeal Proceeding – see order 24 of the relief there specified.

Notices of motion

  1. There have also been various notices of motion either filed or lodged with the Registry (for the most part by Ms Choi) in one or other of the respective proceedings (and, in the case of one such motion, apparently in both). There is some overlap in the relief sought in the respective notices of motion (which are identified below).

  2. The impetus for at least some of the relief sought by Ms Choi in various of her notices of motion appears to be that on 9 May 2022 there was a directions hearing before the Registrar in the Appeal Proceeding, at which time the Registrar made various directions, including a direction (to which Ms Choi took objection) that the Appeal Proceeding be listed for a leave only hearing on 28 July 2022 (see the orders entered on 10 May 2022). Ultimately, as will be explained when outlining the background to the present dispute, the Appeal Proceeding was heard as a concurrent hearing by this Court at the same time as the summary dismissal application brought by the respondent in the Judicial Review Proceeding. Accordingly, various of the orders sought by Ms Choi in some of her notices of motion are now otiose.

  3. The respective notices of motion that have been received since the commencement of the Appeal Proceeding are as follows.

21 June 2022 notice of motion

  1. Ms Choi, by notice of motion dated 6 June 2022 but only stamped as filed on 21 June 2022 (in the Appeal Proceeding) sought a variety of relief, including that the order for a leave only hearing be revoked and that the Appeal Proceeding be heard as a concurrent hearing (of the application for leave to appeal and, if leave be granted, the appeal itself); and also that there be an order “for a concurrently [sic] hearing and a judicial review hearing together to be listed” (seemingly a reference to the Judicial Review Proceeding, the summons for judicial review having been forwarded to the Registry on 6 April 2022 with the documents in connection with the Appeal Proceeding but at that stage not having yet been accepted for filing). This will be referred to as the 21 June Notice of Motion.

24 June 2022 notice of motion – summary dismissal application

  1. By notice of motion dated 23 June 2022 and filed on 24 June 2022 in the Judicial Review Proceeding, the Secretary, Department of Communities and Justice (as the first respondent in that proceeding, though as noted above, Ms Choi takes issue with whether the Secretary is the proper respondent) sought an order for the summary dismissal of the applicant’s summons in the Judicial Review Proceeding pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), on the grounds that the proceeding is frivolous or vexatious and (alternatively or additionally) an abuse of the process of the Court; and an order for the costs of the notice of motion. This will be referred to as the Summary Dismissal Motion.

24 July 2022 notice of motion

  1. By notice of motion dated 24 July 2022, (which has not yet been accepted for filing), Ms Choi sought relief in the Judicial Review Proceeding, including the revocation of orders made by Registrar Hedge in relation to “the summons and the motion filed 24 June 2022” (presumably the Summary Dismissal Motion); the revocation of orders made by the Court of Appeal Registrar on 18 July 2022 (one of which was to amend the name of the first respondent in the proceeding to Secretary, Department of Communities and Justice; another being to remove the second respondent – “Victim Services” as a party). The orders sought by Ms Choi in this notice of motion also include an order for the revocation of the listing of the Secretary’s notice of motion for summary dismissal of the summons to be heard on 28 July 2022 and for the setting aside of a direction made on 22 July 2022 by the Court of Appeal Registrar in relation to a Court Book prepared by the Registrar to be made available to the presiding judges at the hearing. This will be referred to as the 24 July Notice of Motion.

27 July 2022 notice of motion

  1. By notice of motion dated 27 July 2022 (which has not yet been accepted for filing), Ms Choi sought relief in the Appeal Proceeding, including: an order to reserve and review an order or direction made by the Registrar on 21 July 2022 declining to grant leave to the applicant to file an Amended Summary of Argument and an amended draft notice of appeal; an order to disqualify Ward P from “the hearing and matter”; an order to dismiss the Secretary’s notice of appearance and notice of motion (there identifying a notice of motion dated 5 May 2022); and an order to record the hearing on 28 July 2022. This will be referred to as the 27 July Notice of Motion.

Second 27 July 2022 notice of motion – Contempt Motion

  1. By notice of motion also dated 27 July 2022 (which again has not yet been accepted for filing), and which bears no case number on the cover sheet but which later was said to be filed in relation to both the Appeal Proceeding and the Judicial Review Proceeding, Ms Choi seeks orders to punish alleged contempt of court by two solicitors involved in the proceedings (General Counsel, Legal, in the Office of General Counsel Department of Communities and Justice, Ms Lida Kaban, and a solicitor employed in the Crown Solicitor’s Office, and subsequently seconded to the Office of General Counsel where he remains as a permanent employee, Mr Justin Cahill) by committal to a correctional centre and fine. This will be referred to as the Contempt Motion. The Contempt Motion was not accompanied by any statement of charges as to the alleged contempts.

Fee waiver applications

  1. It should be noted that certain of the documents forwarded by Ms Choi to the Registry for filing were not accepted for filing on the date on which they were lodged (by email) with the Registry. This is in circumstances where it appears that Ms Choi has lodged fee waiver applications at the same time. Rule 4.10(5)(b) of the UCPR provides that an officer of the Court can refuse to accept a document until the requisite fee is paid or satisfactory payment arrangements have been made. So, for example, the summons emailed by Ms Choi in the Appeal Proceeding on 6 April 2022 was not accepted for filing until later in April 2022 (after Ms Choi’s fee application had been determined and that part of the filing fee that had not been postponed was paid). The summons was then stamped as filed on 20 April 2022 after payment of that part of the fee had been processed. The summons was then allocated a file number (2022/115722) but was incorrectly listed on JusticeLink as a judicial review proceeding rather than a leave application. On 29 April 2022, the Registry cancelled that file allocation and opened the file for the Appeal Proceeding as 2022/123488 but with that new file treated as being opened on 20 April 2022.

  2. Similarly, the summons forwarded by Ms Choi in the Judicial Review Proceeding was not stamped as filed when initially received. It appears that Ms Choi queried this on 9 May 2022 and produced a fee waiver letter for the (incorrectly opened and by then closed 2022/115722 file number). Ms Choi was notified on 17 May 2022 that her fee application for the judicial review proceeding was refused and, after some communications between Ms Choi and the Registry, on 13 June 2022, Ms Choi paid the filing fee for that summons and it was stamped as filed.

  3. Hence, the apparent disparity between the dates of various documents and when they were stamped as filed. For completeness, it may be noted that insofar as Ms Choi in at least one of her notices of motion seeks a review of the fee decisions, r 49.19(2)(a) provides that an application for review may not be made in respect of a decision to make, or not to make, an order under cl 11(1) of the Civil Procedure Regulation 2017 (NSW), except as provided by cll 14 and 19 of the Guidelines for the Waiver, Remission and Postponement of Fees published by the Attorney-General.

Background

  1. In order to place the present applications in context, it is necessary to explain the matters leading up to these proceedings insofar as can be gleaned from the material that is now before the Court. In so summarising that procedural history, the Court is here making no findings as to disputed facts nor relying on factual findings in earlier proceedings.

  2. Since 2017, Ms Choi has commenced various proceedings both in the Supreme Court and NCAT, including proceedings against the NSW Ombudsman, Legal Aid Commission of NSW, University of Technology Sydney, and the Commissioner of NSW Police (see the list of proceedings in the annexure to the respondent’s submissions on the present applications). Those proceedings followed Ms Choi’s exclusion from a course she was undertaking at the University of Technology, Sydney. Ms Choi had left Sydney in December 2016 and has resided in South Korea since then. From Ms Choi’s Amended Summary of Argument, it appears that on 13 February 2017 the Deputy Ombudsman made a determination (to which Ms Choi refers in her Amended Summary of Argument) that Ms Choi was a vexatious litigant (and, she says, that this was “caused by mental disorders”). On 19 October 2018, Deputy President Hennessy, in NCAT, appointed a guardian ad litem for Ms Choi in each of two proceedings brought in NCAT by Ms Choi (the first, a proceeding against the NSW Ombudsman seeking a review of a decision that her application for information under s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) was invalid; and the second, being a complaint by Ms Choi against the refusal of the President of the Anti-Discrimination 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)).

  1. Ms Choi has alleged that the appointment of the guardian ad litem resulted from corrupt conduct committed by a wide range of persons including the Attorney-General, Legal Aid NSW, the NSW Ombudsman, the President of NCAT, other Tribunal members, the Department, her former guardian ad litem and various public servants.

GIPA application

  1. The genesis of the particular proceeding that came before Bellew J in the Common Law Division last year was an application by Ms Choi on 20 December 2018 under the GIPA Act for access to information held by the Department of Communities and Justice (the Department). The information sought by Ms Choi related the appointment of the guardian ad litem to her in respect of the earlier proceedings.

  2. Ms Choi contends that the information she seeks is necessary to correct wrong information about her, which she says has caused the rejection of passport applications and hence has inhibited her return to Australia with her son; and Ms Choi says that this information will or is likely to reveal serious misconduct or corruption (hence her accusations as to why the information has not been released to her).

  3. Ms Choi was advised that processing charges would apply to her GIPA application, and an advance deposit (amounting to 50% of the then estimated charges) of $52.50 was requested (and paid by Ms Choi). Subsequently, on 27 March 2019, the Department forwarded to Ms Choi a list of the documents it would release to her (some with redactions) in response to the access application and requested that Ms Choi pay an additional (and reduced) processing charge of $155 (that request for payment being made by reference to ss 65(1) and 68(1) of the GIPA Act). That payment was required before the Department would release the documents it had identified as responsive to her access application.

Application to Information and Privacy Commissioner

  1. Ms Choi initially did not pay the $155 processing charge. Instead, Ms Choi applied to the Information and Privacy Commissioner (IPC) for an external review of the Department’s decision, both in relation to the processing charge and in relation to the decision by the Department not to release some of the information it held.

  2. The IPC provided a report and recommendation on 7 June 2019, in which the IPC recommended an internal review by the Department of its decision.

Internal review of Department’s decision

  1. Following the IPC’s recommendation, an internal review was conducted of the Department’s decision. The internal reviewer reached the same conclusion as the original decision-maker. Ms Choi was notified on 4 July 2019 that, after conducting the internal review, the Department had decided to uphold the original decision of 27 March 2019 and that the Department would not release any information until Ms Choi paid the further ($155) processing charge (the 4 July 2019 decision).

September 2019 application to NCAT (proceeding number 2019/305164)

  1. On 24 September 2019, Ms Choi applied to NCAT for an extension of time to file an application for administrative review of the 4 July 2019 decision, (i.e., the decision made at the conclusion of the Department’s internal review) and for administrative review of: the decision to refuse access to some of the information held by the Department on public interest considerations; the decision to impose processing charges; and the reasonableness of the searches conducted by the Department in considering the access application. The September 2019 application was thus not confined to an application for administrative review of the decision as to the further processing charge.

  2. The extension of time was necessary because the application for administrative review was out of time, being filed more than 40 working days after the decision (that time expiring on 29 August 2019) (see s 101(1) of the GIPA Act).

  3. On 5 December 2019, Ms Choi’s application for an extension of time for administrative review was dismissed by NCAT (Senior Member Ransome) (Choi v NSW Department of Justice [2019] NSWCATAD 248) as was her application for administrative review of the impugned decision.

Provision of material to Ms Choi

  1. Ms Choi then paid the $155 processing charge and the Department released to her some 849 pages of material. Ms Choi contends that there was other material that should have been released to her. It was suggested by the respondent at the hearing before this Court that Ms Choi’s belief that there are some further 100 pages of documents that have not been released to her is mistaken and that it is based on an erroneous estimate given at a directions hearing at some stage in NCAT that there were around 950 pages of documents. Ms Choi, in her amended notice of appeal, includes as order 19 an “order to release 100 pages subjected [sic]” and order 20, being an order “to release all the information under s 12(2)(e) of the GIPA Act”. Thus, it appears that the complaint as to documents that have not been produced to Ms Choi may include the documents in respect of which there were redactions from the material produced to her.

January 2020 application to NCAT (proceeding number 2020/11594)

  1. On 13 January 2020, Ms Choi filed a further application in NCAT for administrative review of the Department’s 4 July 2019 decision and of Senior Member Ransome’s decision, which application was again out of time. Ms Choi is adamant that this was not a re-litigation of the September 2019 NCAT application (as will be explained in due course).

  2. On 11 February 2020, Senior Member McAteer (of NCAT) made orders that there be a preliminary hearing to determine whether Ms Choi should be granted leave under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) to extend time to file her application. Ms Choi places no little weight on a statement that she contends was made by Senior Member McAteer at this case conference, which she maintains was a determination that the 2020 NCAT application was not a re-litigation of the 2019 application. Ms Choi alleges that NCAT “cut off” part of this recording (and Ms Choi complains that leave was not given by Bellew J for her to issue a subpoena in relation to this audio recording – although it appears that Ms Choi has already obtained or made a copy of this recording, since it is referred to in the amended index to the material filed on 27 July 2022 by email in the present applications).

  3. The preliminary hearing as to whether an extension of time should be granted was held on 20 March 2020 by Senior Member Gracie.

  4. On 18 June 2020, Senior Member Gracie dismissed Ms Choi’s application for an extension of time for administrative review and her application for administrative review was dismissed (Choi v Secretary, Department of Communities and Justice [2020] NSWCATAD 154).

Appeal to Appeal Panel

  1. On 29 June 2020, Ms Choi lodged an appeal from Senior Member Gracie’s decision of 18 June 2020 to the Appeal Panel under s 80(2)(a) of the CAT Act. The three grounds of appeal contended by Ms Choi were: a failure to provide proper reasons, the application of a wrong principle of law, and a failure to afford procedural fairness. Ms Choi required leave to appeal, this being for an internal appeal of an interlocutory decision (see ss 4(1)(d) and 80(2)(a) of the CAT Act).

  2. Ms Choi’s leave application was listed for hearing before the Appeal Panel constituted by Deputy President Westgarth and Senior Member Frost on 23 October 2020 by telephone.

  3. A solicitor appeared on behalf of the respondent at the hearing on 23 October 2020. Ms Choi appeared by telephone and asserted that she could not hear any of the parties. The respondent maintains that emails sent by Ms Choi to the Registry of the Tribunal revealed that she was able to hear the proceedings before the Appeal Panel, but it is not necessary here to engage in that issue. It is sufficient to note that the respondent points to the following emails sent by Ms Choi, namely that Ms Choi: informed the Registry that she could not hear the parties, that she was unable to browse the justice.nsw.gov.au website in Korea, and that she was unable to access the telephone number that the Registry had provided for her dial into the hearing; asked who the Appeal Panel was constituted by (and asked that, if it was constituted by Acting District Court Judge Hennessy and Deputy President Westgarth, they be disqualified from hearing the application); asserted that the Department did not file and serve a proper notice of representation and therefore sought to disqualify the Department’s solicitor from appearing on behalf of the Department; and requested that the Appeal Panel make an order to provide access to all of the information relating to the 4 July 2019 decision (this last request thus clearly pertaining to the 4 July 2019 decision the subject of both the 2019 and 2020 applications).

  4. The Appeal Panel did not proceed with the telephone hearing on that occasion. Orders were made for the Department to provide submissions on the issues raised by Ms Choi in her emails to the Registry and for Ms Choi’s application to be determined on the papers.

  5. On 18 January 2021, the Appeal Panel (constituted by Deputy President Westgarth and Senior Member Frost) decided that the appeal be determined on the papers without any further oral hearing, refused leave to appeal, and dismissed the appeal (Choi v Secretary, Department of Communities and Justice [2021] NSWCATAP 8). On the same day, the Appeal Panel dismissed an application made by Ms Choi for Deputy President Westgarth to recuse himself.

Common Law Division proceeding

  1. By a summons filed on 24 February 2021 (and later amended on 11 March 2021) in proceeding number 2021/58322 in the Supreme Court, Ms Choi then sought leave to appeal from the Appeal Panel’s decision. The appeal, involving a question of law, required the leave of the Court (see s 83(1) of the CAT Act). The summons was also filed out of time (see r 50.12 of the UCPR), since under the UCPR Ms Choi had until 15 February 2021 to file a summons seeking leave to appeal the Appeal Panel’s decision to the Supreme Court, and hence an extension of time to file the summons was also required.

  2. On 9 March 2021, a notice of appearance was filed for the Secretary, Department of Justice and Communities (the respondent), recording the respondent’s legal representative as Ms Lida Kaban (as noted above, General Counsel, Legal, of the Department).

  3. On 10 March 2021, Ms Choi’s application was listed for directions before Registrar Jones. At the commencement of the directions hearing, Ms Choi took issue with the appearance of Mr Cahill, the solicitor who was appearing (on the instructions of General Counsel) for the respondent. The respondent notes that the Registrar informed Ms Choi that General Counsel might instruct others to appear on her behalf if she wished and accepted that Mr Cahill was entitled to appear.

  4. On that occasion, Ms Choi indicated that she wished to file an amended summons and the Registrar made orders: for Ms Choi to file and serve an amended summons, for the parties to exchange evidence and submissions, and to list the proceedings for further directions on 28 April 2021.

  5. On 11 March 2021, Ms Choi filed an amended summons pursuant to the directions made by Registrar Jones on 10 March 2021.

  6. On 28 April 2021, the application was listed for directions again before Registrar Jones. At the commencement of the directions hearing, Ms Choi again took issue with the appearance of Mr Cahill on behalf of the respondent (on the basis that he worked for the Crown Solicitor’s Office). The respondent notes that the Registrar again accepted that Mr Cahill was entitled to appear. There was discussion as to the preparation of a joint Court Book; and the respondent’s position, as explained by Mr Cahill, was that: Ms Choi had already filed and served on the respondent approximately 3,360 pages of documents and that the parties were unlikely to agree on the contents of a joint Court Book. (Ms Choi’s position is that she made it clear on a number of occasions that she was prepared to participate in a joint Court Book provided it contained the 849 pages of material that had been released to her by the Department; and hence she contends that the respondent caused the issue that subsequently arose in relation to the Court Books – as to which see below.)

  7. The Registrar made orders on 28 April 2021 that the application be listed for hearing for one day on 21 July 2021 and for each of the parties to prepare its own Court Book by 14 July 2021.

  8. The respondent prepared a Court Book (comprising 461 pages of documents some of which the respondent says had been served on Ms Choi prior to 28 April 2021), which was filed on 13 July 2021. The respondent’s position (which the primary judge was prepared to accept) was that a copy was emailed to Ms Choi (who as noted above was residing in South Korea) on 14 July 2021. Ms Choi complained in due course that she had not received the respondent’s Court Book.

Hearing on 21 July 2021

  1. On 21 July 2021, the date of the hearing listed before Bellew J, Ms Choi forwarded the respondent 23 emails attaching approximately 3,300 pages of documents. Ms Choi also sent a series of emails to his Honour’s associate. (Ms Choi, in her submissions in this Court, explained in some detail why she contends that she was “caused” to send the emails twice.)

  2. At the commencement of the hearing on 21 July 2021 (at which Ms Choi appeared by AVL), Ms Choi asserted that she had not received the respondent’s Court Book. There was then a discussion concerning the difficulty that his Honour considered this posed. In the 9 March 2022 Decision, his Honour records the following as having occurred on that occasion (see at [6]-[8]), including reference to the transcript (the accuracy of which Ms Choi here contests) of exchanges on that occasion:

6.   All of these circumstances created an obvious difficulty with the hearing proceeding. In the course of discussing the appropriate course to be taken, the applicant said:

Your Honour, I put — suggest to you, maybe your Honour could judge on papers. Judge on papers after we all file and seal our materials.

7.   The respondent’s solicitor indicated that all of the material upon which he relied had been filed and that, in essence, he had no objection to the course that was suggested by the applicant. The transcript then records the following exchange between the applicant and myself:

HIS HONOUR: ... You’re telling me you’re content for me to deal with this on the papers. Is that correct?

APPLICANT: Yes.

HIS HONOUR: By that, you mean that if I give you an opportunity to file whatever material you want to rely on, you’re happy for me to resolve the matter on the papers without coming back to the court. Is that right?

APPLICANT: Yes.

8.   I then made a number of orders giving effect to what had been discussed. Those orders included the applicant being required to respond with any further submissions by 10 September 2021.

  1. His Honour then made the following orders:

1.   The hearing date of today is vacated.

2.   I direct the Respondent to serve on the Applicant within 14 days a copy of the material referred to as the “Respondent’s court book” such serve to be effected either by pre-paid registered post or by door-to-door international courier.

3.   I direct the Applicant to file and serve any material upon which she wishes to rely by 31 August 2021.

4.   The Respondent is to provide any further written submissions by 7 September 2021.

5.   The Applicant is to reply with any further submission by 10 September 2021.

  1. His Honour further recorded the following notations to those orders (the second being the “further note” to which Ms Choi refers in the Appeal Proceeding):

I further note:

Filing and service of any material by the Plaintiff may be affected [sic] by email.

Consistent with the earlier observations made by today’s proceedings I note that I will proceed to determine this matter on the papers sometime after 10 September 2021.

  1. Ms Choi appears to refer to the orders made orally by his Honour on 21 July 2022 as the judgment given orally (which she complains does not accord with the subsequent written judgment) and in her amended draft notice of appeal Ms Choi seeks leave to appeal from those as well as from the 9 March 2022 Decision itself.

  2. It is relevant here also to note that Ms Choi maintains that, after the statement recorded at [6] of his Honour’s judgment, there was the following exchange (which she maintains has been fraudulently omitted or “sneakily edited” from the official transcript):

Under the condition yes, but your Honour – however, could you please give me leave file the hearing – the audio recording hearing of the tribunal.

  1. Relevantly, Ms Choi does not appear to dispute that it was she who raised the suggestion that the matter be determined on the papers (a course with which she was presumably familiar given that this was the way that the Appeal Panel had proceeded) but Ms Choi is adamant that her consent was conditional and that she did not understand that there would not be a further hearing. Ms Choi has also (as adverted to above) made very serious allegations as to tampering with the transcript of that hearing (variously accusing the Reporting Services Branch under the direction or instruction of Ms Kaban of fraudulent manipulation of the transcript and the Supreme Court of having issued a “fraudulent official transcript”). It may be noted that even on Ms Choi’s own account of events the only condition she identified was that she be given leave to file an audio recording of the tribunal; not that she be given leave to issue a subpoena for such a recording, as now appears to be her complaint – and it does not appear that any audio recording was ever tendered to the primary judge.

  2. Complaint is also made by Ms Choi, on the present applications, that the primary judge conducted a “private hearing” of the matter (on the basis that there was an exchange recorded on the transcript between the respondent’s solicitor and his Honour before Ms Choi became connected to the telephone hearing) and Ms Choi makes the very serious allegation that his Honour (who she contends, due to his attire, was conducting wholly or mainly an administrative function – see below) made orders on “instructions” from a third party (who Ms Choi suggests was Ms Kaban through Bluetooth).

Further submissions and communications

  1. Following the above orders, the respondent served Ms Choi with the respondent’s Court Book and the respondent served written submissions.

  2. On 31 August 2021, his Honour made the following orders in Chambers:

1.   The applicant is to file and serve any further material upon which she wishes to rely by 6 September 2021.

2.   The respondent is to file any further submissions by 10 September 2021.

3.   The applicant is to file any submissions in reply by 13 September 2021.

4.   For the purposes of orders (1), (2) and (3) filing is to be effected by providing the material directly to my Associate.

  1. The respondent filed and served further submissions on 9 September 2021.

  2. On 29 September 2021, after receiving a communication from Ms Choi apparently attaching correspondence from the Registrar at NCAT, his Honour’s associate communicated the following to the parties:

I refer to the recent email sent from Ms Choi on the morning of 29 September attaching correspondence received from the Registrar of the Tribunal.

His Honour has asked me to provide the following response to all parties:

1.   His Honour does not propose to engage in correspondence about the recordings. If what has been provided is in some way faulty, that is an issue to be resolved directly with the Tribunal. It is not an issue in which his Honour will intervene.

2.   His Honour notes that this matter continues to be delayed. He is prepared to allow the plaintiff a further 7 days, i.e. until 6 October next, to provide any further material. He will then proceed to consider the issues and deliver judgment.

3.   Finally, his Honour has directed that, other than for the purposes of providing any additional material upon which any party seeks to rely, there is to be NO further correspondence with these Chambers.

  1. Ms Choi here appears to complain about the direction that there be no further correspondence with chambers as being inconsistent with the leave given for her to represent herself; but, in any event, it does not appear that further material was submitted, and the respondent did not make any further submissions.

9 March 2022 Decision

  1. On 9 March 2022, Bellew J published his reasons for refusing an extension of time for the filing of that summons and proceeded to dismiss the summons (the 9 March 2022 Decision).

22 March 2022 Decision

  1. On 22 March 2022, Bellew J ordered that Ms Choi pay the Department’s costs of the proceeding in the specified gross sum of $8,039.05 plus GST (the 22 March 2022 Decision).

Primary judgments

  1. It is convenient at this stage to summarise the two impugned decisions.

9 March 2022 Decision

  1. In the first of the impugned judgments (the 9 March 2022 Decision), Bellew J set out in full the orders sought by Ms Choi and the grounds upon which she relied for the relief there sought (at [1]) and then explained the background against which he had come to determine the matter (at [2]-[9]), noting that he had taken into account the material in the respondent’s Court Book as well as the material provided by Ms Choi (which, we interpose to note, was on any view of things voluminous). His Honour described the background to the dispute by reference to the summary contained in the Appeal Panel’s judgment; addressed the reasons of the Appeal Panel; and then turned to consider the threshold issue as to whether to grant an extension of time for the filing of Ms Choi’s summons.

  2. His Honour concluded that an extension of time should not be granted for three reasons: first, the history of the proceedings, his Honour being of the view that Ms Choi was doing little more than re-agitating a series of issues which had been comprehensively dismissed by the Appeal Panel in the context of a dispute which had been ongoing since 2018 (see at [29]); second, his Honour was not satisfied that an adequate explanation had been proffered for the fact that the summons was not filed in time, referring in that context to Ms Choi as an “experienced litigant” (see at [30]); and, third, that even if an extension were to be granted, Ms Choi would require leave to appeal against the Appeal Panel’s decision and his Honour considered that any such appeal would have little or no prospects of success (see at [31]).

22 March 2022 Decision

  1. In the second of the impugned judgments (the 22 March 2022 Decision), his Honour noted that Ms Choi had not availed herself of the opportunity to provide any submissions as to costs but was clearly aware of the orders that had been made (see at [2] of the 22 March 2022 Decision). His Honour considered that there was no reason not to depart from the general rule (see r 42.1 of the UCPR) that costs follow the event and acceded to the respondent’s application for a lump sum costs order on the basis that it was highly desirable that the proceedings (which his Honour noted had had a tortured history) be brought to an end without further costs being incurred. His Honour considered the amount claimed to be entirely reasonable and ordered that Ms Choi pay the respondent’s costs in the specified gross sum of $8,039.05 plus GST.

Procedural history of subsequent proceedings in this Court

  1. Ms Choi did not file a Notice of Intention to Appeal from the primary judge’s decisions. Therefore, the material date by which, under r 51.10(1)(b) of the UCPR, Ms Choi was required to file a summons seeking leave to appeal from the 9 March 2022 Decision was 6 April 2022 and the material date by which Ms Choi was required to file a summons seeking leave to appeal from the 22 March 2022 Decision was 19 April 2022.

  2. A summons was forwarded by Ms Choi to the Registry on 6 April 2022, with a draft notice of appeal and draft Summary of Argument. The summons was stamped as filed on 20 April 2022 (hence, strictly out of time).

  3. On 5 May 2022, the respondent filed a notice of appearance in the Appeal Proceeding.

  4. On 9 May 2022, the summons in the Appeal Proceeding was listed for directions before the Registrar of the Court of Appeal, Mr Cahill appearing on behalf of the respondent. (The respondent says that there was no objection raised to Mr Cahill’s appearance on this occasion. Ms Choi, in her submissions on the present applications, appears to accept that she did not raise an issue as to Mr Cahill’s delegation when the matter was before Bellew J, but says that this was because Mr Cahill had said at a directions hearing before the Registrar on 28 April 2021 that he was substantively employed by the Crown Solicitor’s Office and was on secondment as a principal for the Secretary; which Ms Choi maintains is a lie; saying that Mr Cahill is working under the title of solicitor of the Department and that a solicitor at the Crown Solicitor’s office has no power for that role; Ms Choi asserts that this is a contempt of court.)

  5. Registrar Riznyczok informed the parties that Ward P had determined that the application be listed for a leave only hearing; and the matter was listed for hearing on 28 July 2022. Ms Choi indicated that she sought to appeal the decision that the application be listed for a leave only hearing and that she was seeking judicial review of Bellew J’s decision.

  6. As to the latter, on 9 May 2022 Ms Choi queried with the Registry why her judicial review summons had not been filed (referring it seems to the document dated 6 April 2022). Ms Choi contended that the fee for that application had been waived (by reference to a letter in relation to the cancelled case number 2022/115722). The Registrar refused Ms Choi’s fee waiver application and, after some communication in relation to that decision, on 13 June 2022 Ms Choi paid the fee and the summons seeking judicial review dated 9 June 2022 was accepted for filing (and stamped as filed) on 13 June 2022.

Hearing on 28 July 20222

  1. As noted earlier, there was a deluge of interlocutory motions sent to the Registry in June and July 2022. On 28 July 2022, this Court proceeded to hear (as a concurrent hearing) Ms Choi’s summons for leave to appeal from the two decisions of the primary judge as well as the Secretary’s Summary Dismissal Motion in the Judicial Review Proceeding. Ms Choi appeared by telephone, and through an AVL link in light of some technical difficulties she was experiencing. The Court was unable to see Ms Choi.

  2. It should be noted that various of the notices of motion prepared by Ms Choi make application for her to be permitted to have a “McKenzie Friend” in the matter (variously named as Mr Peter Zonneyville (incorrectly spelled “Zonnevylle”) and Ms Telina Webb); and the Court was informed at the hearing of the matter on 28 July 2022 that Mr Zonneyville was in the virtual courtroom. However, Ms Choi proceeded to take the conduct of the oral argument in respect of the applications herself (at some length), it was not therefore necessary to call upon or make any formal order in relation to Mr Zonneyville’s assistance as Ms Choi’s “McKenzie Friend”. Suffice it to note that Ms Choi apparently had the assistance of Mr Zonneyville available to her.

  3. At the outset of the proceedings on 28 July 2022, Ward P heard and refused an application by Ms Choi that her Honour disqualify herself (see the separate reasons published today by Ward P on the disqualification application: Choi v Secretary, Department of Justice and Communities [2022] NSWCA 172).

  4. The Court then heard an application by Ms Choi that she be permitted to record the hearing on 28 July 2022, which had been foreshadowed in advance in an email dated 27 July 2022 from Ms Choi. The Court refused that application.

  5. Section 9 of the Court Security Act 2005 (NSW) (Court Security Act) relevantly provides that:

(1)    A person must not use a recording device to record sound or images (or both) in court premises.

Maximum penalty – 200 penalty units or imprisonment for 12 months (or both).

(2)    Subsection (1) does not apply with respect to any of the following—

(a)    the use of a recording device that has been expressly permitted by a judicial officer.

…

  1. “Court premises” is defined by s 4 as “in relation to a court … the premises or place where a court is held or that is used in relation to the operations of a court” and includes, in sub-par (c) as “a part of premises or a place being used to enable a person to appear before the court by means of an audio link or audio visual link”.

  2. Pursuant to s 9A, a person must not use any device to transmit sound or images (or both) from a room or other place where a court is sitting, or to transmit information that forms part of the proceedings of a court from a room or other place where that court is sitting in any of the specified ways (including by transmitting the sounds to any person or place outside that room or other place, or by posting entries that contain the sounds on social media sites, other websites or the internet) except as expressly approved by a judicial officer (see s 9A(2)(b) and (c)).

  3. Pursuant to s 9B of the Court Security Act, a person must not transmit or distribute a recording of sounds or images of court proceedings, including part of a recording, by any means (unless expressly approved by a judicial officer – see s 9B(2)(a)).

  4. It is not necessary here to explore the question as to the extraterritorial operation of the Court Security Act, which was not the subject of argument before the Court. Relevantly, it was apparent from various references in the materials relied upon by Ms Choi in this Court that Ms Choi has made a number of recordings of proceedings (both in NCAT and in this Court) and that Ms Choi has (and she admitted as such) uploaded some or all of those recordings to YouTube. These recordings include the audio recording of the hearing on 21 July 2021; and the audio recording file of an NCAT case conference by Senior Member McAteer on 11 February 2020 (as well as other proceedings, including one application heard by Macfarlan JA and McCallum JA, as her Honour then was). There was no authorisation for the placement of sound recordings of such proceedings to be published on YouTube. Ms Choi maintained that the recordings had been uploaded to YouTube as that was the convenient way to forward them to this Court (given the size of the files of the sound recordings). That does not, however, explain the posting of commentary in relation to at least one of the recordings (to the effect that as the footsteps of one of the judges could not be heard that judge could not have been present and that the real “con artists” are the Supreme Court). In that regard, publication of the recordings and the commentary appear calculated to bring this Court (and the administration of justice) into disrepute. That is a serious matter.

  5. Ms Choi informed this Court that, if she were permitted to record the hearing, she would not upload it to YouTube. Regrettably, in light of the previous instances of such recordings, it is difficult to accept such a promise at face value. In circumstances where there appeared no good reason to permit the recording of the hearing, Ms Choi’s application to record the 28 July 2022 hearing was refused. It was noted that a transcript of the hearing would be available on application in the ordinary course. (Ms Choi has subsequently emailed this Court to provide the benefit of advice apparently obtained by her from an unidentified lawyer in Korea to the effect that the legislation allows her to record proceedings in Court “in these extraordinary circumstances (revealing alleged corruptions [sic] by the Attorney-General, Ms Kaban, staff at the Office of General Counsel, the Registry) where it is reasonably necessary for the purpose of protecting the lawful interests of the party who records at court”. That does not change the ruling made on 28 July 2022.)

Substantive applications

  1. Turning then to the substantive applications before the Court, we deal first with the Appeal Proceeding and then the application for summary dismissal of the Judicial Review Proceeding.

Appeal Proceeding

  1. As noted above, the Appeal Proceeding was commenced by summons dated 6 April 2022, by which Ms Choi seeks leave to appeal from Bellew J’s orders of 9 March 2022 and 22 March 2022; and also seeks relief directed at the underlying NCAT decisions (as set out in her amended draft notice of appeal).

Extension of time for filing summons

  1. There is a threshold issue as to whether Ms Choi’s summons seeking leave to appeal is out of time (and hence itself requires leave). As noted above, the relevant date for filing of the summons for the purposes of the 9 March 2022 Decision was 6 April 2022 and was 19 April 2022 in relation to the costs appeal (see r 51.10(1)(b) of the UCPR), those being 28 days after the respective material dates.

  2. In determining whether to grant an extension of time to bring an appeal, the Court considers the length of delay; any explanation for the delay; whether the applicant for leave has a fairly arguable case; and the extent of any prejudice suffered by the respondent to the application (Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] per Basten JA with whom Hodgson and Ipp JJA agreed). Leave to proceed out of time will not ordinarily be granted where an applicant has no prospects of success (see Moran v Armidale Local Aboriginal Lands Council [2019] NSWCA 220 (Moran), the Court there citing Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30 at 459 per McHugh J).

  3. Given that the summons seeking leave to appeal has now been heard (and, as the bench was constituted by three judges, heard as a concurrent hearing with the appeal itself – the very hearing for which Ms Choi had contended), it is not productive here to explore the distinction between lodgement and filing of applications (see Fitness First Australia Pty Ltd v Dubow (2011) 251 FLR 241; [2011] NSWSC 351 at [79]ff); which indicates why an extension of time is necessary even though the summons was emailed to the Registry on 6 April 2022. Rather, in the interests of the just, quick and cheap resolution of the real issues in dispute (see s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act)), there should simply be an extension of time to 20 April 2022 for the filing of the summons seeking leave to appeal and this Court will so order. Of course, Ms Choi still needs leave to appeal from the respective March 2022 Decisions.

Application for leave to appeal

  1. Turning then to the application for leave to appeal itself, the principles applicable on such an application are well known (and, indeed, well known to Ms Choi, since they were restated recently by this Court on another application by Ms Choi (see Choi v University of Technology Sydney (No 2) [2020] NSWCA 342). There, Bell P (as the Chief Justice then was) and Emmett AJA said at [40]:

40.   As has regularly been pointed out in decisions of this Court, a grant of leave to appeal generally requires there to be identified an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: see, for example, Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

  1. Ms Choi has herself noted in her Amended Summary of Argument the decision of Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164.

  2. Thus, something more must be demonstrated by Ms Choi than that the impugned decisions were arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (see, in addition to the above-mentioned authorities, Clarke v State of New South Wales [2015] NSWCA 27; Carolan v AMF Bowling Pty Ltdt/as Bennetts Green Bowl [1995] NSWCA 69; Collier v Lancer(No 2) [2013] NSWCA 186; Moran; and more recently Coffs Harbour City Council v Noubia Pty Ltd [2022] NSWCA 32 (Coffs Harbour City Council v Noubia)).

  3. Where a disproportionate amount of time and cost will be involved (as would particularly be the case here insofar as complaint is made as to the requirement to pay a $155 processing charge), that is a factor tending against the grant of leave to appeal, particularly having regard to the case management principles enshrined in the Civil Procedure Act (see Gibson v Drumm [2016] NSWCA 206 (Gibson v Drumm), per Beazley P (as Her Excellency then was) and Simpson JA at [20]). The fact that an allegation of corruption is made is not of itself necessarily sufficient to support an application for leave to appeal (see Moran at [13] and [16]).

  4. Where the relevant decision involves the exercise of a discretion (such as the costs decision), to succeed on an appeal from the decision it would be necessary to establish error in the House v The King sense (see House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 per Dixon J (as his Honour then was), Evatt and McTiernan JJ), i.e., that there was an error of legal principle; that there was a material error of fact; that the decision made took into account an irrelevant consideration or failed to take into account or give sufficient weight to a relevant consideration; or that the decision was so unreasonable or unjust as to bespeak such an error (see also Micallef v ICl Australia Operations Pty Ltd [2001] NSWCA 274 at [45] per Heydon JA (as his Honour then was), with whom Sheller JA and Studdert AJA agreed; Gibson v Drumm at [22] and Coffs Harbour City Council v Noubia at [68]).

Ms Choi’s draft notice of appeal

  1. Ms Choi’s initial draft notice of appeal dated 6 April 2022 identified a number of grounds of appeal (interwoven with submissions and argument), by reference to ten separate headings. The amended draft notice of appeal forwarded to the Registry by Ms Choi on 22 July 2022 repeats much of the content of the 6 April 2022 version, includes further submissions, and identifies the appeal grounds as being:

Appeal Ground 1:   No hearing decision

Appeal Ground 2:   Natural Justice was not offered

Appeal Ground 3:   The three principal reasons

Appeal Ground 4:   Solicitor on the record

Appeal Ground 5:   Party Name

Appeal Ground 6: A solicitor as a GIPA decision-maker

Appeal Ground 7:   Offence

Appeal Ground 8:   Public Importance

Appeal Ground 9:   Jurisdiction was not exercised

Appeal Ground 10:   Unreasonableness

  1. In the amended draft notice of appeal (in the new Summary section, under the heading “Reasons”), there also appears the following heading, which apparently introduces a second appeal ground 9 (but seems to be an expansion of the existing Appeal Ground 9), as follows:

APPEAL GROUND GROUND [sic] 9 Jurisdictional errors in the summons lodged with th [sic] Court below.

  1. In her Amended Summary of Argument dated 22 July 2022, Ms Choi identifies the nature of the case as being:

4.   This matter is about jurisdiction. On 27 March 2019 and 4 July 2019, the Office of the General Counsel (“OGC”) determined “not-held‟ decisions in response to Item 3C and Item 16 the [sic] information which the Attorney-General of New South Wales (“Attorney-General”) sent, stating “…NSW Attorney General’s office are separate agencies from the Department of Justice, and for the purpose of making a request under the GIPA Act. As such, you may wish to consider issuing separate access applications with them.” I have raised an issue of jurisdiction since the case conference in 2019/305164. The Tribunal members said they forgot to bring the copy of the decision. The Information and Privacy Commissioner (“IPC”) made an unclear answer. I have changed [sic] to seek jurisdiction to represent the Respondent. The Tribunal member and over 10 solicitors has not filed proper notice of representation and made absurd claims to prevent the decision from being reviewed.

5.   The cross-over General Counsel (an officer who has multi-roles) enabled the ridiculous claim 2020/11594 is a re-litigation of 2019/305164 to be a fact in this cross-over Department; enabled the Court below to publish the Judgment filled with incorrect information and disabled sound recording and authentic transcript at the Court below to be released.

  1. The reference at [4] to matter 2019/305164 is obviously a reference to the application before Senior Member Ransome which was determined on 5 December 2019 (the Senior Member there dismissing Ms Choi’s application to extend time for the lodging of her September 2019 application for review of the Department’s 4 July 2019 decision; and dismissing that application). The reference to proceeding 2020/11594 is obviously a reference to the application before Senior Member Gracie which was determined on 18 June 2020 (the application to extend time there also being dismissed).

  2. In Ms Choi’s Amended Summary of Argument, she identifies the following questions as being raised in the Appeal Proceeding:

8.   Did the Victims Services have jurisdiction to handle the Item 10 of my amended access application dated 4 January 2018?

9.   Did the Attorney-General of New South Wales have jurisdiction to handle the Item 5 of my amended application dated 4 January 2018?

10.   Did Ms Chew have to make a valid decision in response to the scope in Choi’s email dated 6 February 2020?

11.   What is the party name? Department of Communities and Justice or Secretary?

12.   Did/Does Ms Kaban have jurisdiction to represent the Respondent?

13.   Dis/Does [sic] Mr Cahill have jurisdiction to be a delegate of Ms Kaban?

14. If Justice Bellew handed down the Judgment which is not consistent with the Judgment given orally, should the order be set aside under rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW)(“UCPR Rules”)? If the answer is no, [sic]

16. In the circumstances where the Justice or Judge had a private hearing with the Respondent in the applicant’s absence, should the Judgment and the order be set aside under rule 36.15 of the UCPR rules?

17. Regarding the costs judgments in Choi v Secretary, Department of Communities and Justice (2) [2022] NSWSC 301, in the circumstance where the decision was made on the base [sic] of the wrong facts the Respondent served any materials, should the judgment and the order be set aside under rule 36.15 or/and rule 36.16 of the UCPR rules?

18.   Can the decision to determine the matter on the paper [sic] without a further hearing be justified?

19. Are the decisions made by Justice Bellew dated 9 March 2022 in Choi v Secretary, Department of Communities and Justice [2022] NSWSC 190 wrong? If the answer is yes,

(1)   Is this because the decisions were made on the papers without a hearing? Or/and

(2)   Is this because the Judgment relied on the findings of a fact obtained from the hearing despite the order to vacate the hearing?

(3)   Is this because the matter was determined pursuant to the orders and FURTHER NOTE given orally dated 21 July 2021 which are invalid ?

(4)   I Is [sic] this because the matter was determined without considering the earlier observations? Or/and

(5)   Is this because a wrong principle in Shamieh trading as Consolidated Lawyers was applied.? Or/and

(6)   Is this because the first, second and third principal reasons were wrong?

(7)   Is this because the reasons for the order to vacate the hearing given orally are altered in the written Judgment dated 9 March 2022?

(8) Is this because the written reasons for the orders given orally dated 21 July 2021 have not been delivered to the parties? Uniform Civil Procedure Rules 2005 r36.2

(9)   Is this because Choi could not understand the substance of the reasons for the orders given orally dated 21 July 2021 when these were handed down?

(10)   Is this because Lida Kaban or/and Mr Justin Cahill, Mr [sic] Chew, Mr Long, Ms Young and Mr Hua have no power to represent the Respondent? Or/and

(11)   Is this because the notice of decision dated 27 March 2019 or/and the internal review decision dated 4 July 2019 are not valid ? If the answer is yes, is this because the decision-makers are legal practitioners, Ms Chew and Mr Long? Or/and is this because the decision-makers were not delegated?

20. Is my review application under the Government Information (Public Access) Act 2009 (“GIPA Act”) at NCAT dated 13 January 2020 a re-litigation of my processing charge review application under the GIPA Act dated 24 September 2019 ?

21. Does the Respondent’s conduct amount to offence under s116, s117, s118, s119 and s120 of the GIPA Act?

22. Should the following apparent errors be set aside under r36.17 of the UCPR rules?

(1)   The Respondent party name should be “Secretary, Department of Communities and Justice ABN 36 433 875 185”

(2)   The legal representative should be Lida Kaban

(3)   The position name General of Counsel should be deleted from the documents at the Court for fairness and justice.

  1. It is apparent, from the above recitation of the questions that Ms Choi sees as arising in the Appeal Proceeding (as well as from the relief sought in the amended draft notice of appeal) that if leave to appeal is granted, Ms Choi is seeking to ventilate issues that go well beyond the impugned decisions (those decisions being simply the refusal to extend time for the filing of the appeal from the decision of the Appeal Panel and the decision as to costs). For example, Ms Choi raises issues as to the decision-making powers within the Department and issues as to the proper entities to be joined to the proceeding. In the relief claimed, Ms Choi seeks release of the “100 pages” that Ms Choi believes have been withheld from her.

  2. As to the reasons why leave to appeal should be granted, in her Amended Summary of Argument Ms Choi raises the following matters.

  3. First, Ms Choi says that the “volume of the matter” is simple; and that the crux of the dispute is whether or not 2020/11594 (being the NCAT application heard by Senior Member Gracie) is a re-litigation of 2019/305164 (being the NCAT application heard by Senior Member Ransome) (Ms Choi maintains that it is not).

  4. Second, Ms Choi contends that natural justice has not been offered (except for a case conference in NCAT). Ms Choi complains that NCAT “cut off” part of an audio recording file of the case conference (a reference to the 11 February case conference where she maintains that Senior Member McAteer determined that her 2020 NCAT application was not a re-litigation of the 2019 application); that Bellew J refused to issue a subpoena for the audio recording file of the case conference; and Ms Choi alleges that his Honour:

… refused to provide the written reasons for the orders given orally; was giving oral orders while being instructed by someone; had a private hearing with the Respondent; bullied and cheated me; altered the Transcript and the substance of the reasons for the orders.

  1. Third, Ms Choi maintains that, if leave is not granted, injustice will result in that: there has been a costs order over $8,000 made against her and her “incorrect information” (that she identifies as being information that she is a “false claimer” in an intelligence report made to police) “will remain forever”; and she and her son may be unable to return to Australia.

  2. Fourth, Ms Choi says that this is a matter of public importance, that she is “an extreme or typical case when individual’s wrong information is shared among the public agencies”. Ms Choi asserts that she is a victim of the Australian Criminal Intelligence Model Strategy and that the material already released to her has revealed misconduct and corruption by various persons (including at NCAT and the appointed guardian ad litem). Ms Choi says that the 100 pages “or all my information kept” by the respondent “could reveal more serious corruption” (by the Attorney-General, the NSW Ombudsman, the University of Technology Sydney and the police).

  3. Finally, Ms Choi invokes the interests of justice, contending that the grant of leave will enhance the interests of justice both at NCAT and in the Supreme Court, Ms Choi submitting that the GIPA Act concerns the conduct of the administrators (about whom she makes a number of complaints) and that the grant of leave “has implications to the most applicants who are self-represented litigant in the GIPA review proceedings”.

  4. In summary, Ms Choi’s position is that the 9 March 2022 Decision and orders were made irregularly, illegally or against good faith in the meaning of r 36.15 of the UCPR (citing Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 (Heperu) at [16] per the Court (Allsop P, Campbell JA and Handley AJA)) and similarly Ms Choi submits that the costs decision (the 22 March 2022 Decision) should also be set aside or varied under the r 36.15 and/or r 36.16 of the UCPR (again citing Heperu as well as Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2019] NSWCA 187 at [13] per Simpson AJA (Bell P, as his Honour then was, and Macfarlan JA agreeing at [1] and [2]), citing Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 at 302 per Mason CJ; and Coles v Burke (1987) 10 NSWLR 429 at 437 per Kirby P (with whom Samuels and McHugh JJA concurred).

  5. Ms Choi contends that the primary’s judge’s handing down of “unconsidered and impulsive” decisions damages judicial accountability (citing Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 442 per Meagher JA), emphasising the public nature of court proceedings and judgments as providing an important means of judicial accountability (citing B Debelle, “Judicial Independence and the Rule of Law‟, (2001) 75(9) Australian Law Journal 556 at 563). Ms Choi submits that if a hearing is conducted by telephone (during COVID-19), the Court “should have put more effort to ensure a transparent process for judicial accountability and eventually, public confidence”; and Ms Choi says that special consideration may be required, given that she is a “self-represented widowed single mother with a nine year-old boy with non-English background and no legal knowledge in Korea” (citing Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57).

  6. Ms Choi complains that her contentions as to obvious jurisdictional errors have not been determined and that investigative agencies have not responded to her complaints. As to the costs of the Appeal Proceeding, Ms Choi contends that the Office of General Counsel has caused the costs and should pay them.

  7. The respondent (who opposed the grant of leave for an extension of time for filing of the summons seeking leave to appeal) contends that, if leave is granted for an extension of time to file a summons seeking leave to appeal, the application for leave to appeal should nevertheless be refused. In substance, the respondent so submits on the basis that: if leave to appeal were to be granted, it would be the fifth time since 2018 that Ms Choi has re-agitated the issues in dispute before NCAT, the Appeal Panel and the Supreme Court, thereby putting the respondent to further significant costs and resulting in injustice to it; the impugned judgments disclose no error of law; Ms Choi has raised no clear grounds of appeal and raises issues not subject to the proceedings before the primary judge; the application raises no issue of principle and no question of public importance; and that Ms Choi has not identified a reasonably clear injustice going beyond something that is merely arguable. The respondent points out that much of the relief sought in the summons seeking leave to appeal goes beyond the appeal sought to be brought against the primary judge’s judgment.

Determination of Application for Leave to Appeal (and Appeal if leave be granted)

  1. The principles applicable on an application for leave to appeal have been referred to above.

  2. There are various complaints made by Ms Choi throughout the Amended Summary of Argument and draft notice of appeal, not all of which appear referable to the impugned decisions in respect of which leave to appeal is sought. Addressing the proposed appeal grounds, Ms Choi’s contentions are as follows.

Appeal Ground 1 – No hearing decision

  1. This proposed ground encompasses the matters raised under the first four headings in the initial draft notice of appeal and, in essence, relate to the decision by the primary judge to determine on the papers Ms Choi’s application for leave for an extension of time to file her application for leave to appeal from the decision of the Appeal Panel.

  2. First, Ms Choi relies on the fact that on 21 July 2022 his Honour said “I will adjourn” and did not list a further hearing. Ms Choi contends (at [15] of the Amended Summary of Argument) that the primary judge never revoked the statement “I will adjourn”; that his Honour’s word is an order; that a further hearing was not listed; and therefore that the primary judgment is wrong. There is some uncertainty as to the import of this complaint. The respondent says that this appears to be a contention that Bellew J (on adjourning the proceedings on 21 July 2021 so that it could be dealt with on the papers) failed to re-list the proceedings for a further hearing. It appears, however, to be a complaint that it was somehow beyond the power or competence of the primary judge (having adjourned the hearing) then to proceed to determine the matter without a further oral hearing.

  3. The second heading “The orders and FURTHER NOTE given orally” relates to the orders made on 21 July 2021 (set out above) and the second notation thereto (namely, that “Consistent with the earlier observations made by today’s proceedings I note that I will proceed to determine this matter on the papers sometime after 10 September 2021”).

  4. Ms Choi contends that the notation “made by todays proceedings” was altered (referring to a recording posted by her on YouTube of the proceeding) and says that the “judgment” given orally was in fact that “I have made regarding today’s proceedings”. The import of such an alteration (even if that contention as to an alteration be correct) is not clear. Nevertheless, Ms Choi contends that this notation “cannot confer the Chamber [sic] to determine the matter on the papers without a hearing” and she maintains that “this note can cause disputes and requires another proceeding”. The complaint thus seems to be that it was beyond the power of the primary judge to proceed to deal with the matter on the papers. Complaint is also made that the “earlier observations‟ referred to in the notation were not identified in his Honour’s subsequent written reasons.

  5. Ms Choi maintains that:

The order that culminated in ordering to file the parties materials: the principles is [sic] at [61] in Choi v NSW Ombudsman [2021] NSWCA 68. Also, the order “Application to extend time under section 41 of the NCAT act 2013 is dismissed” had no full effect. Leave has not been refused yet. I am entitled to apply for extension of time under s101 of the GIPA Act. On the contrary, the Appeal Panels [sic] made an order which I did not request.

  1. Thus, Ms Choi maintains that the orders and “FURTHER NOTE” are invalid; and should be revoked

  2. The third heading in the initial draft notice of appeal is “3. The hearing date of today is vacated”. Ms Choi’s complaint under this heading appears to be that it was the primary judge who wanted to have the hearing vacated (saying that the parties wanted to have a hearing); and asserting that a reasonable judge would have continued to proceed with a hearing.

  3. Ms Choi cavils with the accuracy of the matters recorded by the primary judge in the 9 March 2022 Decision as to the proceedings before the Court (saying that nearly all of this section of the judgment is “made-up and baseless”). Ms Choi here takes issue with the suggestion that she was in any way responsible for the listing of the hearing being vacated (in the course of which Ms Choi asserts that for a “standard judge” the one hour and 20 minutes between the sending of the last of her 23 emails (attaching 3,300 pages of documents) and the hearing could be enough time to read her materials “for such a simple matter”); and seems to cast doubt on whether the primary judge “did really vacate the hearing” (on the basis that findings of fact obtained from the oral hearing formed the basis of the principal reason given by his Honour for refusing the extension – i.e., as to the history of the proceeding). Complaint is made in this context that the transcript recorded at [6] and [7] of his Honour’s reasons has been manipulated. Ms Choi is adamant that she “did not have to consent to determine the matter on the papers without conditions for the Respondent”; rather, that she said she “could consent with conditions” and that the condition is not recorded in the judgment.

  4. The fourth heading in the draft notice of appeal “4. The decision to determine the matter on the papers cannot be justified” effectively encapsulates the nub of the complaints under Appeal Ground 1, namely that the primary judge made the decision to determine the matter on the papers. In so submitting, Ms Choi opined that the primary judge made various errors in determining the matter on the papers, as to which Ms Choi said the following: “[a]ccording to the oral Judgment and the written Judgment, I am unreasonable and irresponsible […] [o]n the contrary, I am responsible at least”.

  5. Complaint is made in this context that the determination of the matter on the papers is not consistent with the “earlier observations” or “what had been discussed” at the oral hearing on 21 July 2022; that the primary judge did not list the matter for a hearing “despite a commitment”; that NCAT and the Department have never responded to the contention that the Department had no jurisdiction to determine whether the information sought by Ms Choi was held by “Victim Services” and the Attorney-General; that the claim that the 2020 NCAT application was the re-litigation of the 2019 NCAT application and (additionally or alternatively) to review Senior Member Ransome’s decision of 5 December 2019 is absurd; that the audio recording file of the case conference on 11 February 2020 (which Ms Choi believes to have been edited) is important evidence (in that Ms Choi says that Senior Member McAteer said “no” when Ms Chew said that the GIPA Act review proceeding in 2020 was a re-litigation of the processing charge proceeding in 2019) and the primary judge committed to accepting audio recording files from NCAT. As to the commitment to listing a further hearing, Ms Choi refers to the statement made by the primary judge that:

On the understanding that if there is an issue about anything, the matter can be put back before me, but if I hear nothing from anybody, will assume the orders that I have - that I’m about to make have been complied with and I can just go ahead and determine the matter on the papers.

  1. Complaint is also made in this context that, before the hearing commenced, the primary judge and Mr Cahill were having a “private hearing” in Ms Choi’s absence “talking about a history of the proceedings and the CourtBook [sic]” and Ms Choi says that it was his Honour who raised an issue of the respondent’s Court Book.

  2. Again, Ms Choi says that she said that she could consent to determine the matters on the papers conditionally; one condition being the provision of an audio recording file from NCAT but that the primary judge refused to issue a subpoena. Ms Choi says that this means that the judge’s chambers “cheated” her by not complying with the commitment; and thus, the decision to determine the matter on the papers cannot be justified.

  3. Ms Choi complains that the primary judge gave her leave to communicate via email and to conduct the case (and seems to see this as inconsistent with what was recorded in the judgment at [9] about her email communications and the way of conducting her case). (It appears from Ms Choi’s Summary of Argument that the email communications in question related to her “informing” the primary judge’s chambers of a contempt of court application in relation to another judicial officer “so that his Honour could be careful”.) Thus, Ms Choi says that “the negotiation (determining the matter on the papers) was broken”.

  1. The Secretary seeks an order for the summary dismissal of the Judicial Review Proceeding pursuant to r 13.4(1) of the UCPR on the basis that the proceeding is frivolous or vexatious and (alternatively or additionally) an abuse of the Court’s process. The Secretary contends that there is a high degree of certainty that the judicial review proceeding must fail: first, as the crux of Ms Choi’s case is to seek judicial review of the judicial decisions of a Supreme Court judge; second, on the basis that an extension of time should not be granted for the filing of the summons seeking judicial review; and third, that the issues in dispute and relief sought in the Judicial Review Proceeding largely duplicate those in the Appeal Proceeding.

Secretary’s submissions

  1. The Secretary argues that each of the grounds of review raised in Ms Choi’s summons focusses on the 9 March and 22 March Decisions (even though the relief sought goes beyond those decisions and includes relief relating to the earlier decisions of the Appeal Panel and Senior Members Gracie and Ransome of NCAT).

  2. It is noted that Ms Choi’s summons alleges that Bellew J: reached a wrong conclusion in refusing Ms Choi an extension of time to file a summons seeking leave to appeal (see at [58] of the summons); identified “a wrong issue or a wrong question” and made a finding of fact not supported by evidence (see the sub-heading to [59] and [63] and [84]-[87] of the summons); made an error of law on the face of the record and relied on irrelevant materials (see at [66]-[72] and [79]-[83] of the summons); did not issue “proper reasons” (see at [75]-[78] of the summons); afforded Ms Choi “procedural unfairness” (see at [87]-[107] of the summons); did not take into account the material filed by Ms Choi on 30 March 2021 (see at [108]-[109] of the summons); and was unreasonable, committed “procedural irregularities” and demonstrated “apprehended bias” (see at [110]-[113] of the summons).

  3. The Secretary contends that each of those grounds of review (leaving aside the direction for the “leave-only” hearing in the Appeal Proceeding, the complaint as to which is now otiose) arose from and (additionally or alternatively) relates to judicial decisions made by Bellew J. In that regard, the Secretary relies on authority in this Court for the proposition that there cannot be judicial review of the judicial decisions of a Supreme Court judge, citing Penson v Titan National Pty Ltd [2015] NSWCA 404, where Meagher, Gleeson and Simpson JJA said (at [8]-[10]):

8. Section 69 of the Supreme Court Act provides for a procedure that replaces the prerogative writs for which the common law provided. Those writs did not lie against a superior court: The Queen v The Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union [1953] HCA 60; 89 CLR 636. A judge of the Supreme Court has no power to direct an order in the nature of prohibition against another judge of the same Court: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 at [36]; Barton v Walker [1979] 2 NSWLR 740. Nor is there power to make an order in the nature of certiorari, as sought by Ms Penson in Order 5 of her application. Section 69 has not altered that position. The orders of judges of the Supreme Court, including of the Court of Appeal, are not amenable to review under s 69. Ms Penson’s application in this respect is misconceived and should be dismissed.

9. Apparently in recognition of the absence of any power in this Court to review the judicial decisions of Ward and Leeming JJA, Ms Penson sought to characterise the judgments as administrative, rather than judicial. Even if this characterisation were correct, s 69 would not be available to permit review: R v Wright; Ex parte Waterside Workers’ Federation of Australia [1955] HCA 35; 93 CLR 528 at 541; and see the commentary to s 69 in LexisNexis Butterworths, Ritchie’s Uniform Civil Procedure NSW, vol 2, 2005.

10.   In any event, the decisions are clearly judicial, the first being the refusal of leave to appeal. Such a decision involves, among other things, an evaluation of the prospects of success of the proposed appeal. The second decision, refusal of leave to reopen the earlier decision, also involved the exercise of a judicial function.

  1. Even if the leave-only decision is in the exercise of an administrative function the Secretary says that the function is conferred on “the Court” as a whole, not a particular judicial officer; and the Secretary argues that the Court has no jurisdiction to cure a perceived administrative injustice, referring to the observation by Brennan J, as his Honour then was, in Attorney General (New South Wales) v Quin (1990) 170 CLR 1; [1990] HCA 21 (at 35-36) that:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

  1. As to the second ground relied on by the Secretary, it is said that Ms Choi requires an extension of time in which to file her summons pursuant to r 59.10(2) of the UCPR, on the basis that her summons was filed on 13 June 2022 and therefore Ms Choi is late in filing an application for judicial review in respect of the various decisions referred to in her summons by a range of time from two years and three months to two days (the only matter in respect of which Ms Choi is not out of time being the impugned costs decision of Bellew J, which the Secretary maintains is not amenable to judicial review in any event).

  2. The Secretary argues that there has been no explanation (and therefore there can have been no adequate explanation) as to why Ms Choi was not able to seek judicial review within the time prescribed by r 59.10(1) of the UCPR (particularly of the decisions of NCAT) and says that it should be inferred that there is no reason for the delay which could assist Ms Choi to resist the Secretary’s application for dismissal (cf Ye v Chen [2021] NSWSC 1098 per Harrison AsJ at [45]).

  3. The third ground relied upon by the Secretary for summary dismissal is the duplication of proceedings. The Secretary identifies the overlap between the issues in dispute in the Appeal Proceeding and those in the Judicial Review Proceeding, by reference to the summons filed in each proceeding, as follows:

  1. review of the Secretary’s decisions of 27 March 2019 and 4 July 2019 (order 3 in the summons in the Judicial Review Proceeding; orders 19 and 20 in the summons in the Appeal Proceeding);

  2. order for the release of information to which Ms Choi was denied access (orders 4, 15, 16 and 17 in the summons in the Judicial Review Proceeding; orders 13 and 14 in the summons in the Appeal Proceeding);

  3. orders sought to quash the decisions of Bellew J, the Appeal Panel and Senior Members Gracie and Ransome (orders 5, 13, 14, 32 and 34-46 in the summons in the Judicial Review Proceeding; orders 5, 23 and 28 and [116] in the summons in the Appeal Proceeding – and see [55] in the draft notice of appeal);

  4. dispute as to General Counsel’s right to appear and instruct legal representatives ([79], [80] and [115] and order 3 in the summons in the Judicial Review Proceeding; [48] in the draft notice of appeal in the Appeal Proceeding).

  1. The Secretary refers to the decision of RA Hulme J in Whitehead v Nickells [2013] NSWSC 1446, where his Honour noted (at [5]) the principles set out by Johnson J in Hamzy v Commissioner of Corrective Services (NSW) (2011) 80 NSWLR 296; [2011] NSWSC 120 at 300 as to summary dismissal applications, those being that:

13.   .. [A] very clear case is required before summary dismissal is granted and ... the power to make such an order should be sparingly employed: Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125 (“General Steel”) at 129; Webster v Lampard [1993] HCA 57; 177 CLR 598 at 602-3.

14.    The test is not whether the Plaintiff would probably fail in his action against the Defendants, it is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard at 602. Where the court is asked to summarily dismiss a plaintiff’s case, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial and that an application to deprive him of that right will succeed only in the clearest of cases: Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 at 944. Usually, a party is not to be denied the opportunity to place his case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. For a summary dismissal application to succeed, a high degree of certainty is required about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; 201 CLR 552 at 575-6.

15.   By bringing an application for summary dismissal, the Defendants undertake the burden of establishing that there is no triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11. The General Steel test remains the primary touchstone for such an application. The mere fact (if it be the case) that a plaintiff’s prospects of success might be characterised as slim would not be enough to strike out a pleading: Esanda Finance Corporation Limited v Peat Marwick Hungerfords [1997] HCA 8; 188 CLR 241 at 271; Preston v Star City Pty Limited [1999] NSWSC 1273 at [31]. The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the Plaintiff a right to relief, or which, although weak, is properly debatable and has some apparent legitimate basis if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Limited at [37].

  1. In summary, the Secretary’s position is that the Judicial Review Proceeding should be dismissed as being frivolous or vexatious and (additionally or alternatively) an abuse of the Court’s process: that there is a high degree of certainty that the proceedings must fail due to the significant difficulties in ascertaining Ms Choi’s case; that the proceedings reflect a re-agitation of matters that have already been determined and because Ms Choi appears to seek judicial review of the decisions of a Supreme Court judge; that the summons was filed well out of time to seek judicial review of many of the decisions with which Ms Choi takes issue and has low prospects of satisfying the Court she should be granted an extension; and that there is a large amount of duplication between this proceeding and the Appeal Proceeding. The Secretary maintains that the continuance of this proceeding would be unjustifiably vexatious and oppressive for the reason that it seeks to litigate a case that has already been disposed of in earlier proceedings (cf Hammond v State of New South Wales [2015] NSWCA 304 at [29] per the Court (Emmett and Gleeson JJA)).

Ms Choi’s submissions

  1. In response to the Secretary’s submissions on the summary dismissal application, Ms Choi contends that: first, there was a “fraudulent appearance” in the Judicial Review Proceeding and hence no notice of appearance under the UCPR has been filed (Ms Choi complaining as to the notice of appearance filed 24 June 2022 being filed for the named first respondent; a lack of any instrument of authorisation or delegation having been filed to demonstrate that Mr Tidball (the Secretary) was so authorised; that a name for the solicitor on the record is missing – and instead the notice of appearance simply provides that the solicitor on record is the “General Counsel” and that the General Counsel has no power to represent the first, second and third respondent; and complaint is made that Mr Cahill has no power to be a delegate of Ms Kaban); second, that there is no motion within the meaning of the UCPR (since it has a coversheet filed on-line headed “Written Submissions”; no filing fee was paid for a motion; and there are incorrect details as to the parties and their representatives; and, third, Ms Choi maintains that the affidavit filed in support of the motion is not reliable (and that Mr Cahill witnessed a liar)).

  2. Ms Choi refers to the decision of this Court (Meagher, White and Brereton JJA) in which the Court exercised jurisdiction for judicial review of the Appeal Panel’s decision in Choi v NSW Ombudsman.

  3. Ms Choi accepts that there is a question as to whether the primary judge in the present case exercised a judicial function in making the orders and further note given orally on 21 July 2021 and in the 9 March 2022 and 22 March 2022 Decisions. However, Ms Choi’s submission is that Bellew J exercised an administrative (not judicial) function in relation to the matters and that her case thus falls within the exception identified by Leeming JA in Singh v State of NSW; Singh v Lekhwar [2021] NSWCA 260 at [7], namely that :

… it will be seen [from Penson v Titan] that the Court of Appeal constituted by three judges there stated that orders of judges of the Supreme Court are not amenable to review under s 69. It may be that there are exceptions to the universal proposition stated by the Court of Appeal, for example if a judge of the Supreme Court is exercising a function conferred upon him or her personally which is an administrative function.

  1. Ms Choi advances the following reasons for the proposition that the primary judge was here exercising an administrative function: first, that the primary judge was not wearing a wig and a robe (rather, a light brown suit, a white shirt and no tie) and “did not introduce me to the name etc” (thus contending that Bellew J “chose to act like an administrator”); second, that his Honour determined the matter in accordance with the “further note” dated 21 July 2021 given orally during the vacated hearing (Ms Choi contending that complying with the orders does not give a judge a judicial function to determine the matter on the papers); and that Bellew J determined the matter on the papers by complying with the “further note”; third, that Bellew J vacated the 21 July 2021 hearing but then relied on the communications exchanged during the vacated hearing; fourth, Ms Choi asserts that his Honour altered the oral orders “as if a junior administrator acted” then rejected her application for the reasons for the oral orders, sound recording and a full-version of the transcript without giving reasons; and “manipulated a transcript against my interest and put down made-up words in the Judgement; and gave the oral orders being instructed by a third party through a Bluetooth”; and, finally, Ms Choi asserts that his Honour “directly cheated” her by committing to rely on an audio sound recording which Ms Choi would file but not issuing a subpoena. As to the last, Ms Choi complains that Ms Kaban, who she describes as the Director of the Reporting Services Branch for NCAT and the Supreme Court, refused to provide her with an audio sound recording of the case conference by Senior Member McAteer on 11 February 2020.

  2. Thus, Ms Choi submits that Bellew J (despite having a judicial function conferred on him) did not exercise a judicial function but determined the matter by exercising an administrative function. Alternatively, Ms Choi submits that his Honour “might have exercised 70% of administrative functions and 30% judicial functions”.

  3. Ms Choi maintains that her claims for judicial review are arguable and therefore says that her summons is not frivolous or vexatious and that serious injustice would result if the summons seeking judicial review were to be dismissed (complaining that over $8,000 of legal costs were imposed on a widowed single mother with a ten year old son; that “[n]one of the opportunities to give materials was offered”; and that she was excluded).

  4. In her written submissions Ms Choi then sets out in some detail (which is not here reproduced) her complaints as to the failure of the agencies to respond to her GIPA Act access application (rather that it was Ms Chew, a solicitor at the Office of the General Counsel, that made a “not-held” decision on behalf of Victims Services and on behalf of the Attorney-General of New South Wales) and her contention that the Department (or the Secretary) does not have jurisdiction to determine the Victim Services access application without an Instrument of Authorisation or Delegation, Ms Choi contending that Victim Services is a separate public agency under the GIPA Act governed by the Government Sector Employment Act 2013 (NSW).

  5. For the reasons set out in her submissions, Ms Choi contends that Victim Services has the power to handle GIPA Act applications and that it should do so (independent from Ms Kaban’s control).

  6. Ms Choi also makes complaint as to the making by solicitors of administrative decisions, saying that their roles are administrative duty; and makes a number of submissions as to administration within the government (including as to the proliferation of party names – such as Department of Communities and Justice or DCJ or Secretary, Department of Communities and Justice or The Secretary, Department of Communities and Justice).

Determination

  1. As to the first of the grounds raised by the Secretary, while it has been recognised that there is no bright line distinction between judicial power and executive or administrative power, and indeed that line can be very blurred (see McHugh J at 57 in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64; Palmer v Ayers (2017) 259 CLR 478; [2017] HCA 5), judicial power inherently involves the ascertainment, declaration and enforcement of rights and liabilities of the parties as they exist or are deemed to exist (see Waterside Workers’ Federation (Aust) v JW Alexander Ltd (1918) 25 CLR 434; [1918] HCA 56). It involves the determination of controversies between subjects, and between the State and its subjects (Huddart Pty Ltd, Parker and Co v Moorehead (1909) 8 CLR 330; [1909] HCA 36).

  2. Judicial power involves a “decision settling for the future, as between defined persons or classes of persons, a question as to the existence of rights or obligations, so that an exercise of the power creates a new charter by reference to which that question is in the future to be decided as between those persons or classes of person” (see R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; [1970] HCA 8).

  3. The nature of executive power or administrative functions on the other hand is perhaps less amenable to definition than “judicial power”, except, perhaps, by framing it negatively as that power, or those functions, which are neither judicial nor legislative in nature. Thus, the issuing of a search warrant, for example, has never been conceived of as an exercise of judicial power but, rather, as an administrative function (see, for example, R v Turner; Ex parte Marine Board of Hobart (1927) 39 CLR 411; [1927] HCA 15 at 442, 450).

  4. What is clear, however, is that one looks to the nature and character of the function that is exercised in order to characterise it as either judicial or administrative: it is undoubtedly a matter of substance rather than form (or, as here suggested by Ms Choi, attire). Thus, whether or not the primary judge was wearing a wig says nothing about whether he was exercising judicial power. (Indeed, as may become apparent if Ms Choi pursues her foreshadowed application for special leave to the High Court, the judges of our ultimate appellate court do not wear wigs; but it would surely not be suggested that in hearing appeals and determining litigious controversies in the High Court without wearing wigs their Honours were exercising administrative rather than judicial functions.) Similarly, what colour suit the primary judge may have worn (Ms Choi expressing the opinion that judges wear black) or whether his Honour was wearing a tie, says nothing about the functions there being exercised.

  1. The submissions made by the Secretary are well-founded. There is no power for this Court to exercise judicial review of the impugned decisions of its own judges; and therefore whether or not the judicial review application duplicates the summons for leave to appeal (and it clearly does) the application is untenable and Ms Choi’s summons for judicial review should be dismissed as untenable and an abuse of process.

Notices of motion

  1. It is not necessary to say much as to the remaining notices of motion (not all of which have been accepted for filing).

  2. As to the 21 June 2022 Notice of Motion, the relief sought for revocation of the leave only direction and for a concurrent hearing (together with the judicial review hearing) is now otiose; as is the application for leave to amend the Summary of Argument and notice of appeal (those having been considered in the present applications). The relief sought as to the respondent’s notice of appearance and representation is not made good. As to the relief sought in relation to the decisions for fee waiver, there is no right of review.

  3. As to the 24 July Notice of Motion, which has not been accepted for filing, the orders sought in relation to the case management directions (including as to the party names) are inappropriate and would not be made.

  4. As to the 27 July 2022 disqualification motion, that has been dealt with (in separate reasons published by Ward P) and the application to record the hearing under s 9(2) of the Court Security Act has been dismissed.

  5. As to the 27 July 2022 Contempt motion, leave to file that motion is refused as it is not accompanied by a statement of charges as required.

Teoh direction

  1. Finally, at the hearing on 28 July 2022, submissions were sought from the parties as to the making of a direction of the kind made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324 (Teoh v Hunters Hill Council), wherein Handley AJA (with whom Allsop P, as the Chief Justice of the Federal Court then was, and Beazley JA, as Her Excellency then was, agreed) made the following direction:

The Registrar is directed, should the applicant file a further motion seeking, in substance, leave to appeal from the judgment of Sheahan J of 31 July 2009 in Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432 to promptly vacate the return date, notify the parties, and refer the papers to a judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mrs Teoh should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.

  1. The respondent embraced the making of such a direction. Ms Choi did not address it in terms (but that may be because Ms Choi was not focussed on the enquiry that had there been made).

  2. It is no small thing for this Court to impose a requirement that Ms Choi obtain leave before proceeding with any further motion based on the matters she has to date litigated in more than 30 proceedings in the past few years. Restricting a person’s right to access the courts is an extreme interference with a basic right. However, there can be no dispute as to the existence of such power (Teoh v Hunters Hill Council;Hassan v Sydney Local Health District (No 5) [2021] NSWCA 197 and see Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital [2021] HCASL 230 and Samootin v Shea [2013] NSWCA 312. It is clear that the Vexatious Proceedings Act 2008 (NSW) does not displace this Court’s inherent power to make such an order, because that is what s 7 provides. It is also clear that there is power to make orders appropriately adapted to the circumstances of the case; see for example Ghosh v Miller (No 2) [2018] NSWCA 212.

  3. The features which make this a clear case for making such an order are the quantity of proceedings commenced by Ms Choi, the disproportionality between the number of those proceedings and the matters in issue, the thousands of pages of material which regularly accompanies them (to none of which was this Court taken on the present applications) and the seriousness of the allegations made in circumstances where, if they were made by a legal practitioner, there would be a clear breach of the applicable professional rules. Among other things, Ms Choi has made allegations that: the Supreme Court issued a “fraudulent official transcript” of the hearing before Bellew J on 21 July 2021; there has been manipulation and/or removal by the Registry of part of the White Folder; the primary judge is in contempt; there has been a breach of the Privacy and Personal Information ProtectionAct 1998 (NSW) by the Registrar who provided assistance to Ms Choi by drafting a notice of change of address for service; and the primary judge has made orders under instructions from a third party. It is clear that Ms Choi has no compunction in making very serious allegations of fraud and corruption against any number of persons involved in the proceedings (without the necessary detail required to make such serious allegations).

  4. Moreover, following the hearing, Ms Choi has continued to inundate chambers with email correspondence making serious allegations against parties to the proceedings and inappropriate requests of the Court and the other parties. This has the inevitable result that Court time has been occupied in dealing with the matters and the respondents’ time and costs have been expended in responding to them.

  5. In addition, there is the absence of any place of address in New South Wales at which Ms Choi may be served, and against which, if necessary, execution can be levied. We do not express a view as to whether there has been conduct which amounts to either or both of a serious contempt of court and a serious breach of the Court Security Act by what has been published on YouTube, but the potential criminality as well as the practical difficulties in enforcing the costs orders that regularly accompany Ms Choi’s unsuccessful applications make the absence of the local address required by UCPR r 4.5 more than a merely technical breach.

  6. In short, all persons enjoy an important right to invoke the jurisdiction of this Court. However, that right comes with concomitant responsibilities, and it must not be thought that this Court is powerless to prevent its processes from being abused. It is appropriate in those circumstances and having regard to case management principles and the overriding purpose mandated by s 56 of the Civil Procedure Act to make such a direction in the present case.

  7. As to costs, there is no reason that costs should not follow the event.

Orders

  1. For the above reasons, the Court makes the following orders:

  1. Dismiss with costs Ms Choi’s summons dated 6 April 2022 and filed 20 April 2022, seeking leave to appeal from the decisions of Bellew J of 9 March 2022 and 22 March 2022, respectively.

  2. Dismiss with costs (pursuant to r 13.4 of the UCPR as frivolous and vexatious and an abuse of process) Ms Choi’s summons dated 9 June 2022 and filed 13 June 2022, seeking judicial review of the said decisions of Bellew J.

  3. Dismiss with costs Ms Choi’s notice of motion dated 21 June 2022.

  4. Direct the Registrar not to file the notices of motion dated 27 and 28 July 2022 forwarded by email by Ms Choi.

  5. Direct the Registrar that, should Ms Choi file a further motion seeking, in substance, leave to appeal from the decisions of Bellew J dated 9 March 2022 and 22 March 2022 respectively, the Registrar shall promptly vacate the return date, notify the parties, and refer the papers to a judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Ms Choi should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.

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Amendments

14 December 2022 - Amendment to MNC

Decision last updated: 14 December 2022

Most Recent Citation
Cases Citing This Decision

10

Proietti v Proietti [2024] NSWCA 48
Arjunan v Neighbourhood Association DP No 285853 (No 3) [2023] NSWCA 266
Proietti v Proietti (No 3) [2023] NSWCA 199
Cases Cited

72

Statutory Material Cited

9

Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v Li [2013] HCA 18
Attorney-General (NSW) v Quin [1990] HCA 21