Choi v NSW Ombudsman

Supreme Court of NSW|2024-07-31|Before: Adams J, Cavanagh J, When Cavanagh J

JUDGMENT (REVISED FROM EX TEMPORE)

On 5 April 2024, Cavanagh J delivered judgment in Choi v NSW Ombudsman [2024] NSWSC 352. He dismissed the plaintiff's summons for judicial review of two decisions of the NSW Civil and Administrative Tribunal ("NCAT").
The relevant NCAT decisions pertain to refusals to: appoint a guardian ad litem; grant the plaintiff leave to proceed with a disability discrimination complaint; and other procedural orders. [1]
The first defendant is the NSW Ombudsman, and the second defendant is NCAT which filed a submitting appearance.
The litigation arises from the plaintiff's grievance that her enrolment in a Bachelor of Nursing degree at the University of Technology ("UTS") was terminated on 20 December 2016. The plaintiff has in the past described herself as suffering from a mental disorder and relies on the fact she was assessed as a mentally ill person under the Mental Health Act 2007 (NSW) when she was a student at UTS. The nub of her complaint is that she was discriminated against by UTS when her enrolment was terminated.
When Cavanagh J dismissed the plaintiff's summons on 5 April 2024, he made an order that the plaintiff pay the first defendant's costs of those proceedings.
The plaintiff is self-represented. She resides in South Korea. At all times when she has appeared, including today, it has been by way of audio-visual link. At the hearing today, her link was disconnected on a number of occasions and there were delays when I had to go off the bench in order for that to be reconnected.

Preliminary matters

Before turning to consider the three motions, it is necessary to note some preliminary matters raised by the plaintiff.
Yesterday, a number of emails from the plaintiff were either sent or forwarded to my chambers. They raised a number of complaints including: 1. That the first defendant was incorrectly named; 2. That the plaintiff sought a Webex login; 3. That the court book had not been agreed on and the plaintiff needed an adjournment in order to be able to attend to that; 4. That she had been unaware of the proceedings before Cavanagh J on 9 April 2024; 5. That she sought leave to have a McKenzie friend, Mr Peter Zonnevylle, login to assist her; 6. That the stamp on her documents was a different size to the stamp on the first defendant's documents raising concern as to the letter's authenticity; 7. That the wrong solicitor from the Crown Solicitor's Office was named on certain documents; 8. That the acting prothonotary, Mr Brett Thompson, should not be responding to her emails due to his prior connection with the Crown Solicitor's Office who act for the first defendant; 9. That she sought a sound recording on a CD of the proceedings before Cavanagh J; 10. That if she does not participate today, I should proceed on the basis that she has been blocked from doing so; and 11. That she required a hard copy of the court book.
This morning, before court, the plaintiff sent further emails. She requested that I obtain a copy of the five-volume court book that was before Cavanagh J. She filed some additional affidavits as well and provided a substituted index to the court book.
Although I will address some of these complaints in my consideration of the three motions, it is necessary to consider three threshold issues. First, although the plaintiff applied to have a McKenzie friend appear with her, it would appear that on previous occasions Mr Zonnevylle has sat in court while the plaintiff appeared via audio-visual link from South Korea.
The transcript before Cavanagh J does not suggest that there was any interaction between the two of them. I have no difficulty with Mr Zonnevylle being provided with a link to listen to the proceedings, but there is nothing to suggest he proposed to assist Ms Choi in any way during the hearing of these motions. As it is, he attended court and has not sought to make any submissions or assist Ms Choi directly.
Given that Ms Choi is self-represented, resides abroad, and states that she suffers from a mental disorder, I have considered the relevant principles governing the role of the court when a party is self-represented including those derived from the decisions in Reisner v Bratt & Anor [2004] NSWCA 22 and Damjanovic v Maley (2002) 55 NSWLR 149; NSWCA 230.
Although she resides in South Korea, the plaintiff studied in Australia and has a good command of the English language. At all times in the past, she has conducted the litigation herself including filing all necessary court documents and submissions. I have had regard to her right to appear unrepresented and to the court's duty to give her a fair hearing.
The second matter to deal with is that although there was a suggestion in the email correspondence yesterday that the plaintiff sought an adjournment, given that she subsequently provided the material she wished to rely upon in her supplementary emails today, her application for an adjournment was not pressed.
Finally, as to the relevant material that is before me on these three notices of motion, in addition to the index provided by the first defendant and the index provided by Ms Choi by email today, she also sought to rely upon documents described as exhibits "JCHOI-9" and "JCHOI-10". Having briefly perused those documents, they pertain to substantive issues and documents in relation to her initial complaint against UTS. For reasons that will appear obvious, I do not consider any of that material to be relevant to the narrow scope of the issues I am to deal with today. For that reason, I rejected their tender.
Ms Choi also complained that I should not be permitted to have regard to the transcript of the proceedings before Cavanagh J on 7 March 2024 nor the transcript before his Honour on 9 April 2024. The basis for her objection to the transcript of 7 March 2024 is that she alleges that it has been doctored and complains that she was not provided with an audio copy by the Registry. As I indicated to Ms Choi, I do not accept her assertion that the transcript before Cavanagh J has been doctored. In order for that to be the case, a large of number of people would have had to have conspired to achieve that result including the barrister and solicitor for the first defendant, Cavanagh J, a number of court reporters, the registry and no doubt other people as well. In the absence of any direct evidence, I reject her assertion that that transcript has been doctored. A similar argument was raised in relation to the transcript of 9 April 2024, and I reject that objection as well. Accordingly, I have had regard to the transcript of proceedings on those two dates.

The plaintiff's first notice of motion

In her first notice of motion, the plaintiff seeks that the orders made by Cavanagh J be set aside. The first notice of motion proceeds on a false premise regarding the scope of UCPR r 36.15. That rule provides that the court may set aside or vary a judgment or order in specified circumstances if a notice of motion is filed before the entry of the judgment or order, which is taken to be 14 days after the judgment has been entered. This rule is not directed at setting aside a final judgment which correctly reflects the intended decision of the court. Rather, its purpose is to permit readily identifiable inadvertent errors to be corrected without the complication and expense of an appeal. The principles concerning the operation of this rule have recently been considered in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 and Dickson v Commissioner of Australian Federal Police (No 2) [2023] NSWCA 111 ("Dickson") at [4]. I consider it pertinent to extract the relevant principles from Dickson at [4] as follows: "The relevant principles are well established. The power conferred by UCPR r 36.16 is to be exercised 'sparingly and with caution' and 'does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. The purpose of the power is 'to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal'. 'Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard'. It is also true that it may also be exercised where 'the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and ... this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing'. However, the reference to misapprehension in this context is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect."
A significant portion of the plaintiff's complaint concerns matters already litigated before Cavanagh J. Otherwise, the submissions address three notices of motion said to have been overlooked by Cavanagh J. Although I am not satisfied that his Honour overlooked those matters, I will briefly address the plaintiff's submissions in the interests of finality.
The plaintiff contends that his Honour failed to consider her three notices of motion filed on 27 March 2023, 27 April 2023 and 27 October 2023. Having regard to the transcript of the proceedings before Cavanagh J on 7 March 2024, I am not satisfied that they were in fact overlooked by his Honour. It is tolerably clear that his Honour explained to the plaintiff at the commencement of the hearing that those interlocutory procedural motions had either been overtaken and rendered irrelevant by the time of the final hearing or were otherwise baseless.
The notice of motion dated 27 March 2023 sought the removal of the Crown Solicitor as representing the first defendant and other procedural matters pertinent to the filing of documents and conduct of those in the Registry. As his Honour observed to the plaintiff at the commencement of the hearing: [3] "… events have moved on since that time. The matter is on for hearing now. So we need to proceed with hearing your motion. To declare that counsel has no jurisdiction to appear or that the solicitor on the record should not be the solicitor on the record is without foundation, so please move on."
The plaintiff's second notice of motion, dated 27 April 2023, sought a referral for pro bono legal assistance. The plaintiff agreed that that application had already been dealt with but informed his Honour that she also sought orders that the Attorney-General of New South Wales appear in this matter as amicus curiae.
I pause to note that the filed notice of motion dated 27 April 2023 does not seek any order in relation to amicus curiae. When I queried that during the hearing today, I was ultimately provided with an unfiled, unsealed notice of motion of the same date, which does seek an order to invite the "Attorney-General of New South Wales, (not the Honourable Mark Speakman)", as the "amicus curiae". I am not satisfied that that unfiled document was before his Honour, but it ultimately does not matter because his Honour went on to address that application in any event.
As his Honour correctly explained to the plaintiff at that time, that was not a matter for a plaintiff to seek an order in relation to. It is entirely a matter for the Attorney-General whether he or she ever wants to intervene in a matter. The transcript on that day reflects that the plaintiff cavilled with his Honour about the proper identity of the first defendant. In keeping with the theme that is constant throughout all of her filed documents, the plaintiff contended that the first defendant should not be described as the New South Wales Ombudsman but rather as the "Office of the Ombudsman trading as a State Government Entity". It seems that this contention was the basis of her submission that the Attorney-General should also appear in this matter.
The plaintiff also submitted before Cavanagh J that counsel briefed by the solicitor from the Crown Solicitor's Office had no jurisdiction to represent the Office of the Ombudsman because the first defendant is in fact the Office of the Ombudsman trading as a State Government Entity. As his Honour indicated at that time, he had no basis to doubt that counsel for the first defendant was able to appear for it. The plaintiff continued to cavil with his Honour's finding that the first defendant was able to brief counsel and the Crown Solicitor. She noted that in the earlier Court of Appeal decision of Choi v NSW Ombudsman [2021] NSWCA 68, their Honours invited the Attorney-General as amicus curiae to file submissions regarding the issue of a guardian ad litem. As Cavanagh J pointed out, that concerned a different issue.
Cavanagh J repeatedly requested the plaintiff to move on to the substantial issues to be submitted on that day. The transcript clearly reflects that his Honour considered all three notices of motion to either be superseded in time or absolutely without merit. Despite clearly addressing all three motions at the commencement of the hearing, when his Honour delivered his judgment on 5 April 2024, he did not include in the orders published on JusticeLink three specific orders dismissing those notices of motion. As I have already indicated, following publication of that judgment, the plaintiff brought to his attention that he had not dealt with those motions and other matters, and it was to remove any doubt whatsoever that his Honour relisted the matter on 9 April 2024 so that he could clarify the position in open court. I am satisfied that it was appropriate that he did so. It was clearly done for more abundant caution, given that the plaintiff is self-represented.
The final basis relied upon by the plaintiff, in addition to re-litigating some of the matters determined by Cavanagh J, is that she claims that Cavanagh J failed to hear her application for him to disqualify himself. Again, the difficulty with this complaint is that having read the transcript of the proceedings before his Honour, no such recusal application was ever made. When I brought that to the plaintiff's attention today, she submitted that the transcript had been doctored. As I have already explained, I reject that submission.
The high point of any suggestion to the effect that she had in fact made an application to Cavanagh J is that in an email sent to his Honour on the day before the hearing, she concluded her email by stating, "Thus I disqualify Honourable Justice R Cavanagh." That email can be found in her exhibit "JCHOI-7". I am not satisfied that any clear application for his Honour to recuse himself was ever put to his Honour. In circumstances where there was no such application, there can be no complaint made that his Honour failed to consider it. In any event, the time to hear any such application has clearly lapsed.
A further matter that the plaintiff placed considerable emphasis on in her oral submissions today is a complaint that his Honour failed to consider the plaintiff's argument in relation to s 35A of the Ombudsman Act 1974 (NSW). Having read the judgment of his Honour, I am not satisfied that complaint has been made out either. At [57] of his Honour's judgment, he stated the following: "Similarly, I do not accept the plaintiff's submission that in seeking to rely on s 35A of the Ombudsman Act, the first defendant is acting with bad faith. There is no basis for that submission. The plaintiff was unable to point to any evidence in support of her submission. In any event, it is not necessary to consider 35A further. The outcome of this case does not depend on the first defendant's entitlement to rely on s 35A."
As I have already indicated, an application under UCPR r 36.15 is only concerned with omissions or oversight. Having heard the complaints made by Ms Choi, she does not agree with his Honour's finding in relation to s 35A, but that is not a matter that is a "simple omission" and it certainly does not fall within the relevant principles derived from the decisions to which I have already referred. The plaintiff does not suggest that there has been any oversight or inadvertent error in his Honour's judgment. Rather, I am satisfied that she seeks to effectively appeal against the decision of Cavanagh J before a different judge in the same Division of the court. Having regard to her submissions, I am satisfied that she is seeking to obtain appellate relief under the guise of correcting an inadvertent error. Accordingly, I would dismiss the first notice of motion.

The plaintiff's second notice of motion

The plaintiff seeks that the first defendant's motion seeking that the costs of the proceedings before Cavanagh J be paid on a gross sum order basis be struck out or summarily dismissed. The plaintiff submits that there is no reasonable cause of action disclosed and that the proceedings are incurably hopeless. Although her written submissions were somewhat difficult to understand, they would appear to proceed on the basis that the first defendant is not properly described. She also submitted that the motion was vexatious and the first defendant is trying to mislead the Court by "mixing the facts". She complains that the matters raised by the first defendant are incapable of giving rise to an arguable claim; that the proceedings would be futile; and that the case management objectives of s 56 of the Civil Procedure Act would not be satisfied in any other way. She also, to the extent that it is relevant, sought that Cavanagh J be disqualified from hearing this notice of motion.
In her oral submissions today, she provided further arguments in support of her contention that the first defendant's notice of motion seeking a gross sum cost order should be struck out. She submitted that the file number was wrong. I am satisfied that the file number on that notice of motion corresponds with the file number on the decision of Cavanagh J. She queried why she did not get costs when she won in the Court of Appeal and when the first defendant's motion to strike out her proceedings for judicial review was unsuccessful. I explained to Ms Choi that as an unrepresented litigant, she is entitled to her disbursements but not her legal costs as she has not had to pay for a solicitor or barrister.
She made further submissions that the Crown Solicitor's Office is not entitled to brief a barrister, nor appear for the Ombudsman. She then made a number of allegations about the Crown Solicitor's Office pursuing vulnerable people that I do not consider necessary to refer to in any more detail. She also submitted that I had no power to award the costs because the defendant had been incorrectly named, and she made reference to UCPR r 36.18 as being relevant in this regard.
During her oral submissions, I attempted to explain to Ms Choi that there is no legal requirement for a defendant to be named in any particular way, such as their first name or full name, just so long as there is complete clarity as to who the named parties are. She rejected that suggestion and repeated her submissions about the first defendant being improperly named.
It seems to me that this notice of motion also proceeds on a misunderstanding regarding the first defendant's motion. There is a distinction between arguing that the first defendant should not receive their costs in a gross sum and denying them the opportunity to even make the argument in the first place. The first defendant was successful before Cavanagh J. The Ombudsman is entitled to costs on the basis of the general rule that costs follow the event. Cavanagh J has already made that order. There is nothing apparent from his Honour's reasons as to why such an order should not be made.
Significantly, the material attached to Mr Nicholas' affidavit shows that the first defendant foreshadowed to the plaintiff that if it was to be successful before Cavanagh J, costs would be sought on a gross sum basis. I have considered the communication between the first defendant and the plaintiff on that subject matter. Consistent with that prior notification to the plaintiff, they now seek such an order. These are not new proceedings. There is no basis for a suggestion that the motion is futile, nor any basis for the other matters raised by the plaintiff. I do not propose to prevent the first defendant from making a gross sum costs order. The plaintiff's second notice of motion is dismissed.

The first defendant's notice of motion

Finally, the first defendant seeks that the costs order made by Cavanagh J on 5 April 2024 be paid by way of a gross sum costs order in the amount of $30,000. Annexed to the affidavit in support of that motion are the emails to which I have already referred. The plaintiff was given the opportunity to negotiate from 15 February 2024 with the first defendant as to that amount. No agreement or further negotiation was ever forthcoming.
The plaintiff opposes any such order being made. She repeated the submissions made before Cavanagh J that the first defendant is not properly named, and she asserted that there is no contract between the Office of the Ombudsman trading as State Government Entity ABN 76325886267 and the Crown Solicitor's Office of New South Wales trading as State Government Entity ABN 5032005544. It was further submitted that no contract between the Crown Solicitor's Office and the Ombudsman has been provided. The plaintiff also repeated her submission that she has not received her costs following her success in the Court of Appeal. Ultimately, the plaintiff's submission was that the first defendant's claim is baseless and that the notice of motion is caused by a misunderstanding that the first defendant is in fact the New South Wales Ombudsman.

Consideration

Section 98 of the Civil Procedure Act grants the court discretion to award costs. By s 98(4)(c), the court is entitled to make a gross sum costs order in place of assessed costs in certain circumstances: 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act - (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. … (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to - (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount.
The relevant principles in relation to the making of a gross sum costs order are well established. As was observed in Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22], the power should only be exercised when the court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available. The relevant principles were summarised in Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 at [14] to [18] as follows: "14. The principles relevant to the Court's exercise of discretion under s 98 were set out in Hamod v New South Wales [2011] NSWCA 375 at [813]-[820] (Beazley JA) (Hamod). Her Honour noted at [813]: '[813] The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]: "The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available." 15. The principal purpose of a specified gross sum costs order under s 98(4)(c) is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process: Hamod at [816]-[817]. As Basten JA noted in James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 at [3]: 'The power to make such an order is governed by the obligation of the court to give effect to the overriding purpose of the Act, as identified in Pt 6 of the Civil Procedure Act. The court is to ensure that the issues between the parties are resolved "in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute" (Civil Procedure Act, s 60); that obligation extends to the disposal of disputes as to costs. Although questions of costs undoubtedly play an important practical role in commercial litigation, disputes as to quantification are ancillary to the primary issues in dispute and consequential upon the resolution of the primary issues. Costs provide an opportunity for ongoing litigation about "non-essential issues" which should be resolved with as little technicality and expense as reasonably practicable.' [footnotes omitted] 16. Primary considerations relevant to the exercise of the s 98(4)(c) discretion include 'the relative responsibility of the parties for the costs incurred; the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability': Hamod at [816]; see also Kostov v Zhang (No 2) [2016] NSWCA 279 at [22]; eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 at [30]. 17. The power to award a gross sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 734 at 743; [2002] NSWCA 213 at [22]. The power may be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod at [818]. 18. If it considers it appropriate to make the order, the Court may adopt a "broad brush" approach to quantification, as to require the Court to undertake a detailed examination of the kind carried out in a formal costs assessment would defeat the purpose of the order: Harrison v Schipp at 743; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. The costs ordered should be 'based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills)': Hamod at [820]. Courts have typically applied a discount when assessing costs on a gross sum basis, though the aptness of a discount primarily depends on the accuracy and reliability of the costs evidence available to the Court: Hamod at [814]."
Having regard to the first defendant's submissions and evidence, I am satisfied that this is an appropriate matter for the exercise of the court's discretion under s 98(4)(c) of the Civil Procedure Act to make a gross sum costs order for the following reasons.
First, I am satisfied that such an order will avoid the delay, cost and expense of the assessment process.
Secondly, there remains some doubt about the plaintiff's capacity to meet her liability and costs, and it is understandable that the first defendant wishes to avoid the costs of assessment of any costs order. Given that the plaintiff resides overseas, it is unlikely that the first defendant will be able to recover all of its costs in any event. The plaintiff has already had the benefit of waiving her filing fees, and it is not clear to me that she has paid all of the necessary fees waived by the court.
Thirdly, I am satisfied that the plaintiff's conduct has contributed to the costs incurred in defending the proceedings. She is self-represented and likely to remain so throughout any costs assessment process.
Fourthly, the present proceedings are the latest in a long series of proceedings arising from the same factual background dating back to 2016. Given that the plaintiff has already filed two motions even after these matters were determined, I am satisfied that the costs assessment process is likely to give rise to satellite litigation.
Turning to the amount of the order. I am required to make a logical, fair and reasonable estimate: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 and 123; 1999 [FCA] 350. Despite this, I am permitted to apply a broad brush. Obviously, there is no requirement for the process to take on the characteristics of a formal costs assessment. To do so would defeat the purpose of the order in the first place.

Assessment

I have considered the material in the affidavit of Mr Nicholas. The actual costs of proceedings incurred by the first defendant that have been invoiced and already paid up to and including the completion of the hearing on 7 March 2024 is $73,919.78. As Mr Nicholas deposes in his affidavit, there have been prior proceedings between the plaintiff and the first defendant, and the previous attempts to agree to an amount of costs in relation to those unrelated proceedings have been unsuccessful. The proceedings were commenced on 20 December 2022 and there were ten listings of the matter before the Registrar: on 16 February 2023, 6 April 2023, 27 April 2023, 19 May 2023, 31 May 2023, 21 June 2023, 31 July 2023, 14 September 2023, 2 November 2023 and 6 December 2023.
During the proceedings, the plaintiff filed four notices of motion, and there was extensive correspondence throughout the proceedings. The plaintiff served extensive material upon the Crown Solicitor's Office. I note that in the decision of Cavanagh J his Honour observes at [7] that the first defendant initially relied upon an eight-volume court book. I infer that that was in order to include all of the documents that had been provided to them by the plaintiff.
The hourly rate of the employees of the Crown Solicitor's Office who have worked on this matter ranged from $140 an hour to $370.30 an hour. There was nothing unreasonable about any of those hourly rates. Counsel's fees were $24,974.68 and they represent 80% of the total costs sought by way of the gross sum costs order. Counsel's rate was $290 per hour and $2,175 per day. I am satisfied that these rates are at the lower end of the range claimed in matters heard in this court. I am also satisfied that this was an appropriate matter in which to brief counsel.
I am also satisfied that the discount applied to the amount claimed under this gross sum is likely to be well below that which the first defendant would recover on a party/party basis, given that the total costs incurred by the first defendant comprise legal fees of $48,944.10 and the disbursements of counsel fees to which I have already referred. I have considered the email correspondence between the first defendant's lawyer and the plaintiff, and I am satisfied that the parties will not be able to agree to a gross sum amount. I am satisfied the amount sought includes a significant discount of over 50% of the actual costs.
Before turning to make those orders, I note that during her submissions in-reply in court today, the plaintiff suggested that she should not be liable for these costs because if she had been successful before Chen J in proceedings Choi v NSW Ombudsman [2022] NSWSC 1681, decided on 9 December 2022, she would not have had to bring these proceedings. I do not consider that to be a reason not to make the orders, and it is quite clear that all of the costs that I have already described pertain to the proceedings before Cavanagh J and not those before Chen J.
Finally, before making the final orders in this matter, I make the observation that Ms Choi has been afforded significant latitude in these proceedings. She has been dealt with on a number of occasions and always given the opportunity to be heard. But the time has come for there to be some finality in the proceedings in this Division. As I explained to Ms Choi, if she is dissatisfied with the judgment of Cavanagh J, she can appeal to the Court of Appeal against that decision. But there is no basis to file any further documents in this Division pertaining to the decision of Cavanagh J.

Orders

Accordingly, I make the following orders: 1. The costs order made by Cavanagh J on 5 April 2024 is to be paid in the specified amount of $30,000 by the plaintiff to the first defendant forthwith. 2. The plaintiff is to pay the first defendant's costs of the notice of motion filed on 3 May 2024 on the ordinary basis. 3. The plaintiff's notice of motion filed on 18 April 2024 is dismissed. 4. The plaintiff is to pay the first defendant's costs of that motion on the ordinary basis. 5. The plaintiff's notice of motion filed on 14 May 2024 is dismissed. 6. The plaintiff is to pay the first defendant's costs of that motion on the ordinary basis.

Endnotes

Decision of Senior Member Montgomery dated 26 July 2021 and the decision of Senior Member Tibbey dated 17 March 2022: Choi v NSW Ombudsman [2022] NSWCATAD 92.
Tcpt, 9 April 2024, p 1(19-22).
Tcpt, 7 March 2024, p 8(42-46). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2024

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