Choi v University of Technology Sydney (No 1)

[2020] NSWCA 341

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Choi v University of Technology Sydney (No 1) [2020] NSWCA 341
Hearing dates:	07 December 2020
Date of orders:	07 December 2020
Decision date:	17 December 2020
Before:	Bell P at [1]; Emmett AJA at [10]
Decision:	Application for adjournment dismissed
Catchwords:	PRACTICE AND PROCEDURE – application for adjournment – no persuasive reason or basis to adjourn – application dismissed.
Category:	Procedural and other rulings
Parties:	Jae Hee Choi (Applicant) (Self-represented) University of Technology Sydney (Respondent)
Representation:	Counsel: A Flecknoe-Brown (Respondent) Solicitors: Barry Nilsson Lawyers (Respondent)
File Number(s):	2020/93305; 2020/104641
Publication restriction:	N/A
Decision under appeal	Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: [2020] NSWCATAP 18; [2020] NSWCATAP 37 Date of Decision: 04 February 2020 Before: Hennessy ADCJ; Walker, Senior Member Cole DCJ, Deputy President; S Westgarth, Deputy President File Number(s): 2019/78841; AP 19/07761

EX TEMPORE Judgment

1. BELL P: There are listed before the Court for hearing this afternoon two summonses seeking leave to appeal from two decisions made by the Appeal Panel of NCAT on 4 February 2020 and 9 March 2020, respectively. The matters have been listed before the Court on a prior occasion. They were fixed for hearing today, 7 December 2020, by the Registrar of the Court of Appeal on 9 November 2020.

2. On that occasion, which was a directions hearing before the Registrar, it appears that the AVL link to Ms Choi cut out or that she otherwise had some connection difficulties. What the Registrar did in those circumstances was to set the hearing of the leave only applications down for 7 December 2020, but he sent an email to Ms Choi shortly after the directions hearing, indicating that if that was not a suitable date, asking her to let him know by 16 November 2020. Ms Choi did that on 16 November, requesting to adjourn the leave only hearings on 7 December, indicating that she needed to see a specialist on medical grounds on 7 December and indicating she would be able to provide relevant documents on 8 December after visiting her specialist.

3. The Registrar responded on the same day, indicating that the Court was able to hear the matter on either 10 or 14 December 2020, they being days that it had been indicated legal representatives of the respondent could be available. The Registrar asked Ms Choi to indicate which of those days, 10 or 14 December 2020, would be suitable and said that “until you indicate which day is preferable, your matter will remain listed for hearing on 7 December and you will be expected to proceed with the matters. Unless you provide medical evidence before the hearing, the Court is unlikely to adjourn the hearing again”.

4. Ms Choi responded on 3 December 2020, attaching certain documents which I infer were in Korean, indicating that she would be seeing a specialist on 7 December at 10.15am Korean Time (12.15pm Sydney time) and that she would be seeing a specialist on 10 December 2020 at 1.45pm (3.45pm Sydney time) and also on 14 December at 2pm (4pm Sydney time). In addition, she indicated that Victim Services had offered her psychological consultations on 7 December at 2pm, on 10 December at 2pm, and 14 December at 11am. Those latter consultations were not referred to by Ms Choi in the earlier communication with the Court, in particular the psychological consultation for 7 December, 2pm. And I should note that that consultation was described as having been offered to Ms Choi as a possible date, rather than a fixed date.

5. In order to accommodate what Ms Choi had originally indicated was her only medical commitment, namely at 12.15pm Sydney time on 7 December, I instructed the Registrar to alter the listing time for today from 2.15, when it was originally scheduled, to 3.30pm on the faith that what Ms Choi had indicated was her 12.15pm Sydney time appointment would be well and truly concluded by then. That was the reason why this matter has been, somewhat unusually, fixed at 3.30pm today.

6. Subsequent to those interactions, the last of which was, as I have indicated, on Thursday 3 December last week, the notice of motion seeking an adjournment was filed on the morning of 4 December. In that document, Ms Choi says, in para 14, that she will be in the Seoul National University Hospital on 7 December at 3.30 pm and, “I will have the blood test for around four hours.” This is the first mention of that. It was not mentioned in either of the earlier two email communications. Furthermore, as I have earlier indicated when dealing with Ms Choi’s application for me to disqualify myself, she indicated in her email of 11.53am this morning that she would try to participate in the AVL hearing and the phone hearing today. She has not done so.

7. In my opinion, no persuasive reason has been advanced to justify an adjournment of today’s applications. They are both applications made by Ms Choi. They are applications which have been managed by the Court over a number of months. They are applications with respect to which the Court has bent over backwards to accommodate Ms Choi for a suitable hearing date. Three dates were offered: 7, 10, and 14 December. The history of Ms Choi’s response to those offers has been to refer to appointments she either claimed to have or said she had been offered, but the pattern of that communication is that increasing medical appointments seem to have been added with a view to avoiding the hearing of these applications.

8. The business of the Court of Appeal is pressing. The Court has a large number of applications to deal with. It spends a great deal of time managing applications, especially by unrepresented litigants. And that has certainly occurred in this case. I am not satisfied that Ms Choi has made out a credible case for an adjournment and I will refuse the application for adjournment.

9. In my view, the application for an adjournment should be dismissed.

10. EMMETT AJA: I agree with the President that no basis has been shown for an adjournment of either of these applications. The adjournment application should be dismissed.

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Decision last updated: 17 December 2020