Choi v Secretary, Department of Communities and Justice

[2022] NSWSC 190

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

On the papers

Date of orders:

9 March 2022

Decision date:

09 March 2022

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) An extension of time in which to file the summons is refused.

(2) The summons is dismissed.

(3) Absent an agreement as to costs, the parties are to provide written submissions not exceeding one page to my Associate within 7 days.

Catchwords:

CIVIL PROCEDURE – Application for an extension to file a summons seeking leave to appeal from a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal – Where no proper grounds of appeal articulated – Where extension of time would be futile – Where a refusal of an extension of time would not be unjust in circumstances where the applicant sought to re-agitate a series of matters consistently determined against her in the context of a dispute dating back to 2018 – Where the applicant required an leave to appeal even if an extension of time were granted – Where reasons of the Panel disclosed no error such that any appeal would have little prospect of success– Application for extension of time refused – Summons dismissed

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Choi v Secretary, Department of Communities and Justice [2019] NSWCATAD 154

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

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

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

Category:

Principal judgment

Parties:

Jae Hee Choi – Applicant
Secretary, Department of Communities and Justice – Respondent

Representation:

Counsel:
Self-represented – Applicant
J Cahill (Solicitor) – Respondent

Solicitors:
Self-represented – Applicant
Open Government, Information and Privacy
Department of Communities and Justice – Respondent

File Number(s):

2021/58322

Publication restriction:

Nil

Judgment

INTRODUCTION

1. By an amended summons filed on 11 March 2021 Jae Hee Choi (the applicant) has sought a number of orders arising out of a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (the Panel)[1] constituted by Deputy President Westgarth and Senior Member Frost. The applicant appeared self-represented in the proceedings before this Court. The orders she seeks, and the grounds upon which she relies, are pleaded in the following terms:

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

Pursuant to UCPR 50.3(1)(c), extend the time to commence the proceedings to the suitable time to fit.

Leave to appeal from the whole of the decision below.

Appeal allowed.

Disclose around 100-page information which is subjected.

Disclose the redacted parts of the information except for the personal information from the material which the Respondent released on 5 December 2019.

Costs Order to the Tribunal.

Costs Order to the Respondent.

Exemplary compensation

Any orders which the Court thinks fit.

All the information is to be disclosed under s12(2)(e) of the Government Information (Public Access) Act 2009 ("GIPA Act").

Extension of time is allowed.

Leave is granted.

The Respondent is to release the information sought in the access application which Dr Johnson and Mr Hoyles keep.

The Respondent is to provide the information on Items 1,2, 3C, 3D, 4, 5, 6, 8 and 16 which the Schedule of Documents dated 4 July 2019 states 'not-held'

Releasing the information except for the personal information is to be disclosed under s12(2)(e) of the GIPA Act.

All the information as well as the information in records held in an electronic backup system in relation to Choi is to be released in the Department of Justice, the Department of Communities, Justice, Office of the General Counsel, the office of the Attorney General since 2016.

The matter is to be referred to the Director of Public Prosecutions and be referred to the Attorney General or other suitable officer in the case the Attorney General is involved in the corrupt practices in relation to the offence.

Maximum penalty-100 penalty units is to be imposed on the Respondent under s 116 of the GIPA Act.

Maximum penalty-100 penalty units is to be imposed on the Respondent under s 120 of the GIPA Act.

Any orders which the Court thinks fit.

….

This appeal is brought under s83 of the Civil and Administrative Tribunal Act 2013(NSW) ("NCAT Act"). I appeal against the Appeal Panel's decision in Choi v Secretary, Department of Communities and Justice [2021] NSWCATAP 8. The primary decision by the Tribunal at first instance in Choi v Secretary, Department of Communities and Justice [2020] NSWCATAD 154 is the interlocutory decision under the Government Information (Public Access) Act 2009 ("GIPA Act").

In this matter, I requested for a release of the 100-page information apart from the 840-page information which was already released. The 849-page information shows the corrupt practices by the Attorney-General the Hon Mark Speakman's delegate, Gail Mitchell (Executive Assistant to Office of the General Counsel and Premier the Hon Gladys of NSW, having only a high school certificate without a college degree represented on behalf of the Attorney-General), Mr Hoyles, Ms Coterill and other staff at the Office of the General Counsel to appoint a guardian ad litem ("GAL") for me in the eight proceedings.

Their Honours (being Meagher JA, Brereton JA and White JA) at the New South Wales Court of Appeal are currently dealing with Choi v NSW Ombudsman 2020/104621 and 2020/246501. The Attorney-General was requested to intervene by giving the material about the validity of the appointment of a GAL.

Also, the High Court of Australia is currently dealing with Choi v UTS s16/2021 which is a result of my GAL, Mr Hoyles' signing the contract with UTS.

In addition, President Bell at the Court of Appeal concluded the appointment of Mr Hoyles as my GAL in 2020/104641 on December 2020. 27. Thus, I have to apply for an application for special leave to appeal to the High Court of Australia.

The 100-page information and the un-redacted emails could influence their Honours decisions.

Accordingly, I wish the Common Law Division to deal with this matter as soon as possible. That would be of public importance as well.

The Tribunal's erring in s41(1) of the NCAT Act

In general, the agency makes a processing charge decision under s 68 of the GIPA Act. Then, separately, the agency makes a final notice of decision which is composed of the two parts (1) the introduction part and (2) the actual information. The introduction part includes the Schedule of Documents. The actual information is the real information sought in the access application.

However, the Respondent omitted the Schedule of Document in the final notice of decision referring to the Schedule of Documents in the notice of decision dated 4 July 2019, which is the first reason to have brought this matter. The Respondent stated at its notice of decision dated 4 July 2019, "Please refer to the attached Schedule of Documents. Please arrange payment of the outstanding revised processing charges by 13 January 2020 and the information identified for release will be provided to you" ("processing charge decision").

The Tribunal refused to review the processing charge of $155 in Choi v NSW Department of Justice [2019] NSWCATAD 248. Thus, on 5 December 2019, I paid $155, on the same day, the Respondent released 849-page information. On 30 December 2019, I requested the Tribunal to review the 849-page information.

The Tribunal did not extend time regarding the Schedule of Documents in the processing charge decision on its own motion under s41(1) of the NCAT Act (the second reason). On 11 February 2020, at the case conference, the Tribunal at first instance stated it needed the Schedule of Documents in the processing charge decision to review the 849-page information. Then, Member requested me to establish I could only consider review after receipt of the information on 5 December 2019 that arose from the decision of 4 July 2019 under s41 of the NCAT Act.

The processing charge decision was valid until 13 January 2020. It was on 30 December 2019 when I requested NCAT to review the notice of decision. The processing charge decision was valid. Thus, the Tribunal at first instance could have extended the time on its own motion under s41(1) of the NCAT Act.

Finally, the Tribunal at first instance rejected my application to extend time for the Schedule of Documents in the processing charge decision under s41(1) of the NCAT Act.

The GIPA Act s101

My application for NCAT administrative review was made within 40 working days under s101(1) of the GIPA Act. Also, I provided a reasonable excuse to extend time in the meaning of s101(3) of the GIPA Act. Thus, the Tribunal had no reason to refuse to extend time.

The Appeal Panel failed to take into account the mandatory consideration

The Appeal Panel did not think I requested the Appeal Panel to grant leave and I provided with the reasons at [47]. However, I ticked 'yes' in the question ‘Are you asking for leave?' in the Notice of Appeal Question 6. LEAVE TO APPEAL (A). Also, I provided the reasons in the separate document attached to the internal appeal form.

The Tribunal provided no evidence to support a finding of fact

The Appeal Panel wrongly found I complained about the processing charge decision repeatedly. The Reasons for Decision stated at [49] "...that was the second time Ms Choi had been refused an extension of time to make an application to review the Respondent's decision dated 4 July 2019. It was only once I requested the Respondent's processing charge decision to reduce the charge.

My first complaint relates to the processing charge decision (Choi v NSW Department of Justice [2019] NSWCATAD 248). On the contrary, this matter has no relation to the processing charge but has relation to the Schedule of Documents in the processing charge decision.

The Tribunal refused to extend time for reviewing the processing charge decision in Choi v NSW Department of Justice [2019] NSWCATAD 248. Thus, on 5 December 2019, I paid $155 to the Respondent. As a result, on the same day, the Respondent provided me with the 849-page information.

There is no evidence showing that I requested the Tribunal to review the processing charge decision in this matter. On 5 December 2019, I already paid $155 and obtained the 849-page information. Why would I request the Tribunal to review the processing charge decision?

An application to disqualify Deputy President Westgarth

My application to disqualify Deputy President Westgarth was refused at [37].

A. an error in s38(5)(c) of the NCAT Act.

There was no hearing on 23 October 202. However, the Appeal Panel wrong stated that there was a hearing in the Reasons for Decision. A fair opportunity for me to say was not offered. That is an error in s38(5)(c) of the NCAT Act.

Then, the Appeal Panel relied on only one ground and did not take into account other grounds. The Appeal Panel emphasised my wrong expression as a non-English-background person at [38].

B.   The same questions of fact as his previous decisions

Deputy President Westgarth answered the same questions of fact as his previous decisions. His previous findings of fact could create a perception that he would strive to be consistent with his earlier decision (Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17).

The questions was whether Hennessy ADCJ's appointing a guardian ad litem ("GAL") and appointing Mr Hoyles as my GAL were lawful in Choi v University of Technology Sydney ("UTS") and Choi v NSW Ombudsman proceedings (AP20/7761, AP20/7745 and AP20/30719).

I asserted NCAT' appointment of the GALs is unlawful identifying the information which Defendant provided on 5 December 2019 under the GIPA Act. This information shows Hennessy ADCJ's judicial corruption in appointing Mr Hoyles as my GAL, how the several staff at the Office of the General Counsel ("OGC") registered my GALs as fake vendors to pay the GAL fee by misusing the procurement process, how Gail Mitchell (Executive Assistant to the OGC and the Correspondence Manager of the Premier of NSW) controlled Mr Hoyles to revoke my Choi v NSW Ombudsman applications and Mr Hoyles withdrew my two Choi v NSW Ombudsman applications because of no payment from the OGC.

However, Deputy President Westgarth rejected the information and failed to find the corruption in AP20/7761, AP20/7745 and AP20/30719.

This matter is to seek for the Tribunal's order to disclose the 100 pages which the Defendant did not provide as well as the redacted parts of the emails except for the personal information under s12(2)(e) of the GIPA Act.

Subsequently, Deputy President Westgarth rejected the information showing the corrupt practices at [43].

C. The matter based on credibility findings made on a previous occasion

Similarly, Deputy President Westgarth should not decide the matter where the credibility of a witness is a critical issue where Deputy President Westgarth has previously made adverse findings against my oral submissions on the same issue. Deputy President Westgarth should not have decided the matter based on credibility findings made on a previous occasion (Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17; Jambajimba v Dredge (1985) 33 NTR 19).

Deputy President Westgarth did not trust my oral submissions regarding the corrupt practices by Mr Hoyles, the Attorney-General, NSW Department of Justice, Legal Aid , NSW Ombudsman, Hennessy ADCJ and President of NCAT Justice Lea Armstrong in AP20/7761, AP20/7745 and AP20/30719. He regarded the allegations as a result of my mental disorders. Similarly, Deputy President Westgarth did not trust my assertions on the same issue, whether there were corrupt practices by Mr Hoyles, the Attorney-General, several staff including Gail Mitchell at the OGC, NSW Ombudsman, Hennessy ADCJ and NCAT.

D. His actions indicate that he has lost impartiality

Deputy President Westgarth's conduct might give rise to an apprehension of bias where his actions indicate that he has lost impartiality or objectivity (GP v R (2010) 27 VR 632; [2010] VSCA 142).

On 1 August 2020, the Defendant did not attend the call-over. I attended the call-over via phone from Korea. Deputy President Westgarth determined to adjourn the call-over without my asking for my consent. On the contrary, Deputy President Westgarth did not adjourn the hearing when I was stopped from attending any AVL and phone hearings at the Tribunal on 23 October 2020.

An application to disqualify the legal representative of the Defendant

The Appeal Panel failed to provide proper reasons why it accepted the legal representative of the Defendant at [42]-[44].

There was an issue of the notice of representation at the Tribunal at first instance and the Appeal Panel. Both the Tribunal at first instance and the Appeal Panel requested the Defendant to file and serve notice of representation. However, the Defendant failed to file and serve a proper notice of representation. The five lawyers attended the hearings or/and represented the Respondent without giving proper notice of representation. This is Ground 3 in my notice of appeal.

Ms Sue Chew: was not registered but put down 'LEGAL5392/19 as her legal representative reference number.

Ms Alexandra Kate Young

Katrina Lee

Mr Timothy Long

Ms Chau Hua

Thus, I rejected any legal representative of the Defendant on no notice of representation ground. However, the Appeal Panel explained the unreasonable reason at [43] that "In the strongest terms we reject the scandalous and unfounded allegation of corruption."

Also, the Appeal Panel underestimated the importance at [82]. That is more than a breach of s26(4) of the NCAT. They are unethical. Also, the Appeal Panel breached objective s3 of the NCAT Act.

I have been involved in the matters at NCAT since September 2015. I read the NCAT website "Most parties are encouraged to conduct their own case without representation...” A request to be represented must be in writing and contain the following information...the reason why you are seeking to be represented' However, NCAT did not request such material and let the five lawyers represent the Respondent without filing and serving the proper notice of representation.

The NCAT Act s38(4)

The Appeal Panel failed to comply with the NCAT Act s38(4) "The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial “

However, the Appeal Panel acted with formality, no equity, regard to technicalities and legal forms, and ignored procedural directions regardless s3, s26(4) and s38(4) of the NCAT Act.

The GIPA Act s12(2)(e)

The 849-page information includes evidence about the serious corrupt practices; the emails between the staff at the Office of the General Counsel ("OGC") showing the invalidity of the appointment of a guardian ad litem ("GAL") for me in the eight proceedings Choi v University of Technology Sydney ("UTS") and Choi v NSW Ombudsman. Eg. Gail Mitchell (Executive Assistant to the OGC, the Correspondence Manager to the Premier the Hon Gladys of NSW) on behalf of the Attorney-General Mark Speakman MP unlawfully paid GAL fee by registering the GALs as the vendors by misusing the procurement process, controlled my GAL, Mr Hoyles to revoke my proceedings by forwarding my complaint about the Attorney-General to Mr Hoyles' manager, Ms Cotterill and Mr Ripperger, ridiculed Hennessy ADCJ's judicial corruption for the Attorney-General and misused the title of Secretary Mr Cappie-Wood in the certificate for the appointment of a GAL.

Thus, I asserted that 100-page information which the Respondent did not release to conceal more serious corrupt practices and the redacted emails among the 849-page information should be released except for the personal information under s12(2)(e) of the NCAT Act. Therefore, I requested for extension of time on the public importance and injustice grounds. However, the Appeal Panel did not mention it at all.

Consequently, the release of the 100 pages and the redacted emails under s12(2)(e) of the GIPA Act could facilitate their Honours at the Court of Appeal and the High Court to find the validity of the appointment of a GAL to hand down a right decision.

The Appeal Panel failed to provide proper reasons

The Appeal Panel summarised my submissions dated 2 September 2020 at [54]. Then, the Reasons for Decision stated at [55] "the submissions dated 2 September 2020 are unhelpful. We make no further reference to them".

However, the Appeal Panel did not give proper reasons why my submissions dated 2 September 2020 are not helpful and why it did not want to make further reference to them.

At [54], the Appeal Panel mentioned the 100-page information which I asserted should be released. The legal representative Mr Long of the Respondent stated that about 50-100 pages are still possessed to be released at [30] in Choi v Secretary, Department of Communities and Justice [2020] NSWCATAD 154.

Unfortunately, the Tribunal at first instance and the Appeal Panel did not request the Respondent to file (a) documents considered to be subject to a conclusive overriding public interest against disclosure in a sealed envelope marked 'conclusive presumption documents'(b) documents considered to be subject to a non-conclusive overriding public interest against disclosure in a sealed envelope marked 'non-disclosure documents' in the meaning of s14 of the GIPA Act.

Then, it should be inferred that the Appeal Panel did not read the 50-100 pages and was not ready to turn to the appeal itself at [45].

Extension of Time to review

The decision was made on 18 January 2020. There are several reasons why I lodged this summons seeking leave to appeal late at the Common Law Division late.

I acknowledged the decision late. I am a widowed single-mother with an 8-year-old boy. I had to work and looked after my son who did not go to school due to the Corona Virus.

I have been busy being involved in several proceedings at the Court of Appeal and the High Court of Australia.

I have been suffering from an organ broker caused by the contract between this Court and the Debt Recovery Specialists in October 2020. My matter is related to the corrupt practices by the Attorney-General and Gail Mitchell. The Attorney-General's political life could end depending on the outcomes of my proceedings. No wonder Mr Alexander Roussos at the finance of the Supreme Court of New South Wales requested the Debt Recovery Specialists at Suite 2 Level 5 510 Church St North Parramatta NSW 2151 Australia to collect the $2593 (the future hearing fee listed on 3 February 2021 in 2020/104621 and 2020/246501, and the transcript fee in Choi v UTS 2020/104641 and 2020/93305) from me in Korea. They are not debt yet.

I thought I was entitled to apply for intention to appeal to the Court of Appeal. However, on/around 15 February 2021, I found out the Appeal Panel is not judicial staff. Thus, I have to lodge a summons at the Common Law Division.

I wish the Common Law Division to extend time for the public importance and injustice grounds.

On 10 March 2021 at the directions, Registrar Ms Jones said she would allow me to amend summons seeking leave to appeal by 11 March 2021.I have been able to view Ms Jones' order from the online registry because the Attorney General disconnect from NSW to all over the world around since 10 March 2021 afternoon. (Note-The network-traffic from NSW to Korea in has been disconnected since 10 August 2020). The following are added items.

The GIPA Act s53

I appeal the decision by Senior Member Ransome in Choi v NSW Department of Justice [2019] NSWCATAD 248 on 5 December 2019. The extension of time should be granted. Senior Member Ransome was not aware that the Tribunal's review could release the corrupt practices when she refused to extend time. She did not take into account the merits in my review application at [5] and did not request the Respondent to file the actual information as confidential documents. It was after 5 December 2019 when the Respondent released the actual information in the notice of decision (see above para 25). Thus, it would be of public importance to extend time to review the decision.

Senior Member Ransome refused to extend time (16 working days) for reviewing the notice of decision dated 4 July 2019 including the Schedule of Documents and the extra processing charge, $155 ("third Schedule of Documents"). I was dissatisfied with the Schedule of Documents and $155 which are not consistent with the Schedule of Documents and the extra processing charge $52.50 in the notice of decision dated 14 February 2019 ("first Schedule of Documents"). I even paid $52.50 on 26 February 2019.

I was dissatisfied with the third Schedule of Documents stating the information sought in my access application on Items 1,2, 3C, 3D, 4, 5, 6, 8 and 16 are not-held and; the information on items 3A, 3B, 7, 9, 10, 11, 12, 13, 14 and 15 is partially released under the public interest considerations against disclosure of the information such as 1(f), 1(e),2(d), 3(b) and 3(f). There were reasonable grounds to make me think extra information is still possessed by the Respondent. Also, the Respondent wrongly regarded the information held by my guardian ad litems, Mr Hoyles and Dr Johnson as personal information, not the public information. As a result, the Respondent did not release the information kept by Dr Johnson and Mr Hoyles sought in my access application.

Searches for information in records held in an electronic backup system

There is a sad history at the Tribunal. Deputy President Hennessy has frustrated the administrative proceedings by abusing a guardian ad litem ("GAL") since 2007. Ms Gail Mitchell nominated the GALs and paid the GALs. However, the GALs are for children, should be appointed from the members of the Public and are not get paid. The GALs revoked the administrative proceedings whose outcomes would reveal the corrupt practices and misconduct by the Executive. The beneficiary was on the Executive. The Tribunal belongs to the Judiciary. Thus, my matter is significant.

All the information as well as the information in records held in an electronic backup system in relation to me should be released in the Department of Justice, the Department of Communities, Justice, Office of the General Counsel, the office of the Attorney General since 2016.

The GIPA Act s12(2)(e)

Releasing the information except for the personal information would be consistent with s12(2)(e) of the GIPA Act.

Offence under s116 and s120 of the GIPA Act

The GIPA Act concerns the conduct of the public officer.

Ms Sue Chew made a reviewable decision in my access application that Ms Sue Chew knew to be contrary to the requirements of this Act. Ms Chew's conduct is in the meaning of s 116 of the GIPA Act (Maximum penalty-100 penalty units).

On 5 December 2019, Ms Sue Chew provided me with only 849-page information, concealing the 100-page information. Ms Chew's conduct is in the meaning of s 120 of the GIPA Act (Maximum penalty-100 penalty units).

I will cross-examine Ms Sue Chew whether Ms Gail Mitchell or Ms Lida Kaban had influenced the staff at the Office of the General Counsel to release those subjected notice of decisions. So, applying s 117 or/and s 118 of the GIPA Act should be considered in the proceedings. Also, the Office of the General Counsel deals with the applications to subpoena. Any alternative ways should be discussed for fairness and justice.

The matter should be referred to the Director of Public Prosecutions and informed to the Attorney General or other relevant officer in the case the Attorney General is involved in the corrupt practice: in Briginshaw v Briginshaw (1938) 60 CLR 336.

Dietrich v R (1992) 177 CLR 292

I am self-represented in Korea. I have no money, no legal knowledge
and no English skills. In short, I have nothing. This matter is an
administrative proceeding. It is about justice not for making money.
This Court should endeavor to find the orders and reasons on the
public”s importance. The relevant principle is Dietrich v R (1992) 177 CLR 292.

A new principle in the landmark judgment

A lot of applicants who requested NCAT to review agencies' notice of decision under the GIPA Act are not satisfied with the decisions by the NCAT. Members affirm the agencies' notice of decision by citing the decisions made by non-judicial Members in/around 2014-2017.

None of the cases the Tribunal handled the applications under the s12(2)(e) of the offence under the GIPA Act since a new Tribunal was established on 1 January 2014.

Accordingly, a new principle is required.

The proceedings before this Court

2. On 28 April 2021 Registrar Jones listed the matter for hearing on 21 July 2021, and in doing so made various case management orders including an order that the parties file a joint Court Book on or before 14 July 2021. The respondent provided a Court Book, although for reasons which are not the fault of the respondent, it had not been prepared jointly with the applicant.

3. On 20 and 21 July 2021, my Associate received approximately 25 emails from the applicant, in the course of which she complained (inter alia) that she had not received the respondent's Court Book. There were documents attached to a number of those emails which, as I understood it, were said to constitute (at least in part) the applicant's Court Book.

4. When the matter came before me for hearing on 21 July 2021, the applicant appeared self-represented via audio-visual link from Korea. At the commencement of the proceedings, she repeated the complaint made in the emails sent to my Associate that she had not received the respondent’s Court Book. The solicitor for the respondent informed me, and I accept, that the Court Book had been sent to the applicant electronically on 14 July 2021.

5. At the same time, the respondent’s solicitor informed me that he too had received a series of emails from the applicant in the period leading up to the hearing which, on his calculation, had attached approximately 3,300 pages of material. In circumstances where those emails had been sent by the applicant within 24 hours of the hearing date, the respondent’s solicitor had obviously not had a proper opportunity to read the material which was attached to them.

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: [2]

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.

2. T6.41 – T6.42.

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: [3]

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.

3. T8.3 – T8.12.

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.

9. Over the ensuing weeks, my Associate received further emails from the applicant. In total, the applicant’s various emails attached approximately 3,000 pages of material which I have treated as the applicant’s Court Book. Notwithstanding the orders that I had made, the applicant continued to correspond with my Associate into the latter part of 2021. She also sent emails to the Associates of the Chief Justice and the Chief Judge at Common Law regarding the proceedings, in the course of which she made allegations of impropriety on the part of various persons. All of those allegations are entirely extraneous to any issue I am required to determine.

10. It is against this background that I have come to determine the matter. In doing so, I have taken into account the material in the respondent’s Court Book, as well as the material provided by the applicant.

The background to the dispute

11. The background to the dispute between the parties was helpfully summarised in the judgment of the Panel handed down on 18 January 2021 which I gratefully adopt:[4]

    4. [2021] NSWCATAP 8 commencing at [3] – [15].

[3] The dispute between the parties has a long and somewhat complicated history, which eventually led to the making of the decision under appeal, in paragraph [15] of these reasons.

[4] The broad dispute started in December 2018 when the Appellant (Ms Choi) applied under the Government Information (Public Access) Act 2009 (GIPA Act) for access to information held by the Respondent. The Respondent advised Ms Choi that processing charges applied to the application, and it requested an advance deposit amounting to 50% of the estimated charges for responding to the application. Ms Choi paid the advance deposit of $52.50.

[5] Responding to Ms Choi’s application took the Respondent longer than it had estimated. On 27 March 2019 the Respondent identified a number of documents it would release to Ms Choi (some of them with redactions), and gave her a list of those documents, but before releasing the documents it asked her to pay a further charge of $155.00. Ms Choi did not pay that amount, but applied to the Information and Privacy Commissioner (IPC) for an external review of the decision, in respect of both the processing charge and the decision not to release some of the information held by the Respondent.

[6] The IPC provided its report and recommendation on 7 June 2019. It recommended an internal review by the Respondent of certain aspects of its initial decision.

[7] The Respondent’s internal reviewer came to the same conclusion as the original decision-maker: all information originally identified for release would be released, and all information originally identified as information that should be withheld because of an overriding public interest against release, would be withheld.

[8] The reviewer provided to Ms Choi a Notice of Decision dated 4 July 2019, which attached a Schedule of Documents identified as within the scope of the access request. The Notice of Decision contains this summary of the Respondent’s position, at paragraphs 79 to 82 (emphasis in the original):

[79] I refer to the attached schedule of documents, which summarises the information released to the applicant on 27 March 2019 and the information withheld due to an overriding public interest against disclosure. I have reviewed the records and have decided to release the same information. I have also decided to withhold the same information as previously decided, due to an overriding public interest against release of that information.

[80] I confirm, for clarity, that 849 pages were identified within scope. While it was determined that there is an overriding public interest against disclosure of some information, the vast majority of the information identified as within scope was determined to be released to the applicant. The department has redacted the information for which there is an overriding public interest consideration against disclosure. However, this is only a small amount of the total information to be released.

[81] Information will be provided via email in pdf format.

[82] However, I note that there are outstanding processing charges in the amount of $155.00. Information will only be released upon receipt of proof of payment of that amount. ...

[9] Ms Choi still did not pay the processing charge of $155.00, and so the Respondent did not release the information to her.

[10] On 24 September 2019 Ms Choi applied to the Tribunal for an administrative review of the Respondent’s decision. That application was out of time – GIPA Act s 101(1) requires applications to the Tribunal to be made within 40 working days – but the Tribunal can extend time under s 101(4). After conducting a hearing on 26 November 2019, the Tribunal (Senior Member Ransome) refused the extension of time and dismissed the application on 5 December 2019: Choi v NSW Department of Justice [2019] NSWCATAD 248.

[11] Only then, on 5 December 2019, and on receiving notification that the Tribunal had dismissed her application for review, did Ms Choi pay the processing charge of $155.00. The Respondent released the information to Ms Choi on the same day, by emailing to her the 849 pages identified for release.

[12] Ms Choi seems to have been dissatisfied with what was provided to her by the Respondent. She lodged a further Administrative review application form with the Tribunal, dated 31 December 2019. In that form, under the heading ‘Grounds for application’, she stated:

On 14 February, 27 March 2019, 4 July 2019 and on 26 November 2019 at the hearing, the Respondent said it would provide me with approximately 195 pages under the condition that I pay the extra money $155 for the labour fee to redact some information. Thus, on 5 December 2019, I paid the $155. However, the Respondent emailed me only 849 pages. Also, the information the Respondent provided is not congruent with the reasons it said in the past two Notice of Decision. In addition, the public considerations applied are not necessary. Confusingly, the information was released in bulk not under the sub-points.

[13] Ms Choi subsequently clarified that the reference in the application form to ‘195 pages’ should in fact be ‘950 pages’.

[14] On 11 February 2020 the Tribunal made orders for the conduct of a preliminary hearing at a later date. The orders also gave Ms Choi the opportunity to provide material to the Tribunal ‘to establish that she could only consider [whether to lodge] any [application for] administrative review to the Tribunal after receipt of the information in December 2019 that arose from the decision of 4 July 2019’. The preliminary hearing, to take place on 20 March 2020, would be conducted for the purpose of determining whether Ms Choi should be granted an extension of time, under s 41 of the NCAT Act, to lodge her application for review dated 31 December 2019.

[15] Senior Member Gracie conducted the preliminary hearing on 20 March 2020. On 18 June 2020 he dismissed the application to extend time: Choi v Secretary, Department of Communities and Justice [2020] NSWCATAD 154. That is the decision that is now under appeal.

The reasons of the Panel

12. When the proceedings came before the Panel an immediate issue arose regarding the applicant’s participation. The Panel recounted these circumstances in the following terms: [5]

    5. At [18] – [23].

[18] A short time later Ms Choi joined the telephone hearing. Although all other participants could hear Ms Choi clearly, she repeatedly claimed not to be able to hear anyone else. After a few minutes we terminated the call, instructing the participants to try to connect again. At about this time Ms Choi was sending an email to the Tribunal’s Registrar saying she had called the connecting number and keyed in the meeting code but ‘I cannot hear anything. What is happening?’

[19] When Ms Choi joined the resumed telephone hearing she still claimed she could not hear anything. She said this:

I’m not sure if you can hear my voice or not. I cannot hear. It’s like – actually the Department of Communities and Justice disconnected the networking traffic from New South Wales to Korea to browse the website. In the same way maybe I cannot access the hearing – the hearing room. That is very nasty, I think. That is really bad. You understand? The Korean people cannot browse the website of the Department of Justice. In the same way I cannot access the hearing ... the phone hearing. It’s unbelievable. OK, can you understand? I cannot hear you. But I emailed the Registrar twice.... That is really bad.

[20] Curiously, Ms Choi remained completely silent during the ensuing discussion between Deputy President Westgarth and the interpreter, in which the interpreter repeated the claims Ms Choi had made. Only after that discussion finished did Ms Choi speak again:

Hello? I’m going to email again. Listen carefully. In Korea, all the people know the Department of Justice disconnected the networking traffic from New South Wales to Korea, and the people in Korea are unable to browse the Department of Justice because the Department of Justice disconnected. ... And I cannot hear because this phone line is from the Department of Justice, right? Not from NCAT. And this is unbelievable. I cannot believe it – this is so nasty. ... The issue is going to be an international issue ...

[21] Within minutes Ms Choi had sent two further emails to the Registrar. The first one, at 10:26, said this:

1. I am unable to hear anything. I am unable to browse the in Korea. I am also unable to access the phone [phone].

2. Who is the Appeal Panel?

I disqualify Hennessy ADCJ and President Westgarth.

3. The Respondent did not file and serve a proper notice of representation.

I disqualify the lawyer.

4. Therefore, the order should be ‘release all the information’.

[22] The second of Ms Choi’s further emails, her third of the morning, came at 10:37. It said this:

A Korean interpreter is organised?

The Member and the Respondent are in the hearing room?

Can they hear me?

My phone is not connected. I cannot hear anything.

So frustrating.

I am unable to browse because the Department of Justice blocked the networking traffic from NSW to Korea.

[23] With Ms Choi continuing to claim she could not hear the other participants, the hearing could not continue. In different circumstances we may have been inclined to reschedule the hearing to a later date, but it is possible, even likely, we would have experienced the same difficulties the next time. There was also the fact that, as far as we could tell, Ms Choi objected to having Deputy President Westgarth involved as one of the members of the Appeal Panel, and that application needed to be dealt with before we could take the appeal any further. We therefore made orders to give the parties the opportunity to make submissions on the recusal application; Ms Choi’s application for Ms Chau Hua not to represent the Respondent; and whether those issues, and the appeal itself, may be determined on the papers, without a further hearing.

13. The circumstances outlined by the Panel in those passages gave rise to a preliminary question, namely, whether a further oral hearing was required, or whether the issues could be determined on the basis of the written material which had been filed. It was the applicant's position before the Panel that a further oral hearing was required.

14. In reaching the conclusion that the issues could be adequately determined without the need for a further hearing, the Panel observed (inter alia) that the applicant's submission that such a hearing was required was based on a number of extreme and unsubstantiated allegations, including blackmail, fabrication of proceedings, concealment of misconduct and corruption. [6] The Panel’s reasons for determining that the issues could be properly adjudicated upon on the basis of the written material, and without the need for a further hearing, were expressed as follows: [7]

[27] Section 50 of the NCAT Act provides that a hearing is generally required for proceedings in the Tribunal, but there are exceptions to that general rule.

[28]  One of the exceptions (s 50(1)(a)) is where the proceedings are for the granting of leave for an external or internal appeal. This is such a case, since it is an appeal against an interlocutory decision of the Tribunal and so requires the leave of the Appeal Panel: see [46]–[47] below.

[29] Another exception (s 50(2)) is where the Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or other documents or material provided to the Tribunal. In that circumstance the Tribunal can make an order under s 50(1)(c) dispensing with a hearing, but the Tribunal must first give the parties an opportunity to make submissions on whether the matter should be determined on the papers, and must take any such submissions into account: s 50(3).

[30]  In the circumstances, where the parties had initially expected the proceedings to be conducted by way of an oral hearing, we chose to give them the opportunity to make submissions on whether a further hearing might be dispensed with. The parties have provided written submissions and we have taken their submissions into account.

[31]  Ms Choi is the only party who considers a further hearing is necessary. Her submission in that regard is not persuasive. It rises no higher than the bald statement that a hearing is required, but she provides no cogent material to support the submission.

[32]  We are satisfied that the issues can be adequately determined on the papers. Accordingly we order that a further hearing is dispensed with.

6. At [24].

7. At [27] – [32].

15. Having reached that conclusion, the Panel turned its attention to the determination of an application that Deputy President Westgarth recuse himself from the hearing. In doing so, the Panel observed[8] that the basis of that application was not clear, and postulated that it may have been nothing more than the fact that Deputy President Westgarth, either alone or as a member of an Appeal Panel, had previously made decisions that were adverse to the applicant. In the absence of any proper indication as to the substance or basis of the application, the Panel proceeded on the assumption that the applicant asserted apprehended bias on the part of Deputy President Westgarth. [9] Having set out the relevant principles and authorities, the Panel concluded that there was nothing in the material filed by the applicant which satisfied the test for apprehended bias. That application for Deputy President Westgarth's recusal was refused. [10]

    8. At [34].

    9. At [35].

    10. At [35] – [37].

16. The Panel then turned to consider an application made that Ms Chau Hua, who had been present at the hearing, not be permitted to represent the applicant. In advancing a submission that Ms Hua should not be permitted to represent her, the applicant alleged that “corruption (was) involved". The Panel regarded that assertion as both “scandalous and unfounded”[11] and concluded that there was no basis to refuse to permit Ms Hua to represent the applicant.

    11. At [43].

17. The Panel also noted[12] that the decision then under appeal included a decision refusing to extend time for the making of an application to the Panel and was thus an interlocutory decision. The Panel went on to observe[13] that an internal appeal against an interlocutory decision required leave of the Panel and that the applicant had not provided any reasons why leave should be granted.

    12. At [46].

    13. At [47].

18. The Panel then identified three substantive grounds of appeal, namely whether:[14]

(1) there had been a failure to provide proper reasons;

(2) a wrong principle of law had been applied;

(3) there had been a failure to afford procedural fairness.

14. At [48].

19. In respect of ground 1, the Panel summarised the submissions of the parties, [15] and concluded that the applicant was doing no more than seeking to re-agitate issues that had previously been decided against her. The Panel made reference to the applicant’s assertions that there had been a failure to provide proper reasons, as well as her assertion that there had been no evidence to support the various findings of fact which had been made at first instance. [16] The Panel concluded:[17]

[63]  Ms Choi persists, at [7], [8], [13], [14], [15] and [17] of her submissions dated 28 June 2020, with the claim that the Respondent made a decision on 5 December 2019, or that it was only on 5 December 2019 that the full import of the decision of 4 July 2019 became known. Both claims were definitively rejected by the Tribunal below: at [44], [46]–[47] and [68]. Attacks on the Tribunal’s decision or reasoning on the basis that there was no evidence, or that the conclusion was incorrect, or that the reasons were inadequate, are unfounded. They are simply attempts to have the extension of time issue reconsidered on the merits.

15. At [57] – [60].

16. At [61] – [62].

17. At [63].

20. The Panel found that in these circumstances, ground 1 was not made out.

21. As to ground 2, the Panel concluded [18] that the applicant had misstated the relevant principles. The effect of the Panel's determination was that this ground of appeal lacked merit. [19]

    18. At [74] and following.

    19. At [74] – [79].

22. In respect of ground 3, the Panel concluded [20] that even when taken at its highest, the applicant's submission was that there had been a technical non-compliance on the part of the Respondent with the Panel’s directions. However, the Panel went on to point out that on no measure would such a trivial shortcoming amount to a denial of procedural fairness. The Panel concluded that ground 3 was not made out.

    20. At [80] – [83].

23. Having dealt with the individual grounds of appeal, the Panel[21] identified the relevant principles to a grant of leave to appeal from an interlocutory decision. Having done so, the Panel concluded that the applicant's case did not satisfy those principles and that there was nothing to warrant a grant of leave to appeal. [22] The Panel then refused leave to appeal and dismissed the appeal. [23]

    21. At [84].

    22. At [86].

    23. At [87].

Consideration of the threshold issue of an extension of time

24. It is necessary for me to determine a threshold issue, namely whether the applicant should be granted an extension of time pursuant to r 50.12(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules) to extend the time to file a summons outside the time required by r 50.12(1)(a).

25. Rule 50.12(1) is in the following terms:

Leave to appeal

(1) A summons seeking leave to appeal must be filed—

(a) within 28 days after the material date, or

(b) if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or

(c) within such further time as the higher court may allow.

26. In the present case, the Pane’s judgment was handed down on 18 January 2021 and accordingly, the material date for the purposes of r 50.12(1)(c) was 15 February 2021. The applicant filed the present summons on 24 February 2021 and therefore requires an extension of time.

27. The principles to be applied in determining whether or not an extension of time should be granted include the following:

1. an extension of time is not granted automatically or as of right, and the Rules of Court which govern the time within which steps for pursuing an appeal are to be complied with;

2. the Rules are not to be used to impose any injustice;

3. the object of the Court’s power to extend time is to do justice between the parties, and thus the Court will extend time where not to do so would result in an injustice to a party;

4. relevant considerations in exercising the discretion to extend time include the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences to the parties of the grant or refusal of the extension of time, the prospects of the appeal's success and any prejudice caused to the respondent by extending the time. [24]

   24. See Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232 at [87] per Einstein J, cited by Hislop J in Shamieh trading as Consolidated Lawyers v Easy Buy International Pty Limited [2010] NSWSC 970 at [13].

28. In my view, an extension of time should not be granted in the present case for three principal reasons.

29. Firstly, the history of the proceedings weighs against an extension being granted. The applicant was originally refused an extension of time to lodge an application for review under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) by Senior Member Gracie. [25] She then sought leave to appeal against that decision. That application was dismissed by the Panel for the reasons I have outlined. In seeking an extension of time in which to bring an application for leave to appeal against the decision of the Panel, the applicant is doing little more than re-agitating a series of issues which were comprehensively addressed by the Panel in the context of a dispute which has been ongoing since 2018. To allow an extension of time in those circumstances would, in my view, visit some injustice on the respondent.

    25. Choi v Secretary, Department of Communities and Justice [2020] NSWCATAD 154 and see the reasons of the Panel at [15].

30. Secondly, and making every allowance possible for the fact that the applicant is unrepresented, I do not regard the matters set out in paragraph (48) of the Summons (which are not on oath) as amounting to an adequate explanation of why the summons was not filed within time. This is particularly so in circumstances where, although self-represented, the applicant is an experienced litigant.

31. Thirdly, even if an extension of time were granted, the applicant would require leave to appeal against the Panel’s decision. The reasons of the Panel are comprehensive. The multitude of issues which were raised by the applicant were thoroughly considered and dealt with. Each of the conclusions reached by the Panel was open. It follows that any appeal against the Panel’s decision would have little or no prospects of success. Further, generally speaking, the summons filed by the applicant fails to disclose any clear ground(s) of appeal. Contrary to what the applicant asserts, there is no point of principle which would warrant a grant of leave to appeal, and the applicant’s complaint that the reasons of the Panel were inadequate has no merit whatsoever. All of these factors weigh heavily against a grant of leave to appeal. In those circumstances, granting the applicant an extension of time in which to file a summons seeking such leave would be entirely futile.

ORDERS

32. For these reasons I make the following orders:

1. An extension of time in which to file the summons is refused.

2. The summons is dismissed.

3. Absent agreement as to costs, the parties are to provide written submissions not exceeding one page to my Associate within 7 days.

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Endnotes

Decision last updated: 09 March 2022