Choi v Secretary, Department of Communities and Justice

In *Choi v Secretary, Department of Communities and Justice*, the applicant, Ms Choi, sought leave to appeal from two decisions of Bellew J and also sought judicial review of those same decisions. The appeals and judicial review proceedings were heard by Ward P, Meagher and Leeming JJA of the Court of Appeal of New South Wales.

The Court was required to determine whether the primary judge's failure to wear a judicial robe and wig during the proceedings constituted a denial of procedural fairness or a breach of the Court Attire Policy. Further, the Court had to consider whether the primary judge was exercising an administrative function due to this omission, and whether the judicial review proceedings constituted an abuse of process. The Court also considered the principles governing leave to appeal, including the element of public importance, and whether the primary judge had made an error of the type contemplated in *House v The King*.

The Court held that the primary judge's attire did not amount to a denial of procedural fairness. The Court reasoned that the applicant had not demonstrated any prejudice arising from the judge's dress, nor had she established that the judge's conduct was other than impartial. The Court found that the omission to wear robes and a wig did not alter the nature of the judicial function being exercised. Consequently, the judicial review proceedings were deemed an abuse of process, and the applications for leave to appeal were dismissed.

The Court ordered that Ms Choi's summons seeking leave to appeal and her summons seeking judicial review be dismissed with costs. Additionally, her notice of motion was dismissed with costs, and the Registrar was directed not to file further notices of motion. The Registrar was also instructed to refer any future motion seeking leave to appeal from the primary judge's decisions to a nominated judge for determination as to whether the proceedings should be summarily dismissed as vexatious and an abuse of process.