Choi v Secretary, Department of Communities and Justice

The appeal hearing

1. The appeal hearing was set down for 23 October 2020, to be conducted by telephone.
2. The hearing commenced at the appointed time of 10:15am. On the line at the commencement were Ms Chau Hua and Ms Sheen, representing the Respondent; a Korean interpreter; and both members of the Appeal Panel.
3. 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?'
4. 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 www.justice.nsw.gov.au 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.
5. 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 …
6. 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 www.justice.nsw.gov.au in Korea. I am also unable to access the phone 8688-2222. 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'.
7. 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 www.justice.nsw.gov.au because the Department of Justice blocked the networking traffic from NSW to Korea.
8. 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.

Is a further hearing required, or could the issues be determined on the papers?

1. Ms Choi submits that a hearing is required. She claims the matter is 'significant', but that claim is based on a number of extreme and unsubstantiated allegations including blackmail, fabrication of proceedings, concealment of misconduct, and corruption.
2. She also claims that 'NCAT did not try to find out the reasons why I was unable to hear anything through the phone', but it is not clear to us why that would have any bearing on the question whether a further hearing is required.
3. The Respondent submits the matter can be determined on the papers and that a further hearing should be dispensed with.

Consideration

1. 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.
2. 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.
3. 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).
4. 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.
5. 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.
6. We are satisfied that the issues can be adequately determined on the papers. Accordingly we order that a further hearing is dispensed with.

The application for Deputy President Westgarth's recusal

1. Ms Choi indicates in her most recent submissions, dated 28 October 2020, that she has made repeated requests for Deputy President Westgarth (as well as another Deputy President of the Tribunal, Acting Judge Hennessy) not to be allocated to any of her matters. She claims at [16] of these submissions to have made the requests on 'reasonable grounds' but complains that 'NCAT has never listened to me'.
2. Precisely why Ms Choi thinks either of these Tribunal members should not hear any of her matters is not clear. Perhaps it is nothing more than the fact that each of them, either alone or as a member of a multi-member panel, has previously made decisions that have been adverse to Ms Choi.
3. Although the substance of Ms Choi's complaint is obscure, we will assume the complaint is one of apprehended bias on Deputy President Westgarth's part. We do not regard the complaint as one of actual bias since it falls well short of the requirement for such a complaint - that it must be 'distinctly made and clearly proved': Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. Ms Choi's complaint is neither 'distinctly made' nor 'clearly proved'.
4. As far as apprehended bias is concerned, the test for determining whether a judge (or, by analogy, a tribunal member) should disqualify himself or herself by reason of apprehended bias is whether 'a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide': Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]. There is nothing in the material filed by Ms Choi asserting that to be the case, let alone establishing it.
5. The application for Deputy President Westgarth's recusal is refused.
6. Ms Choi also observes at [20] of her most recent written submissions that 'I believe one member [of the Appeal Panel] should be a NSW judicial staff. However, the Appeal Panel was constituted by non judicial staff on 23 October 2020.'
7. Again, nothing is put in support of Ms Choi's belief.
8. The constitution of the Appeal Panel in this matter complies with NCAT Guideline 1, which provides at [64]: The Appeal Panel which hears any internal appeal will in most cases be made up of, or 'constituted by', one, two or three members. At least one of the members will be a lawyer.
9. Both members of the Appeal Panel in this case are Australian lawyers.

The application for Ms Chau Hua not to represent the Respondent

1. In her most recent written submissions Ms Choi states: [21] The order 'The application to seek an order that the Respondent not be represented by Michelle Chau Hua' is not right. I object Michelle Chau Hua as the Respondent's legal representative because the Respondent did not file and serve a completed notice of representation. The Respondent failed to fill it out, by omitting the details of the presiding officer, which indicates that the corruption is involved.
2. In the strongest terms we reject the scandalous and unfounded allegation of corruption.
3. There is no basis for refusing to permit the Respondent being represented by Ms Chau Hua and accordingly the application for an order that the Respondent be precluded from being represented by Ms Chau Hua is refused.

The substantive appeal

1. We now turn to the appeal itself.
2. The decision under appeal is a decision refusing to extend time for the making of an application to the Tribunal. It is therefore an 'interlocutory decision': NCAT Act, s 4(1).
3. An internal appeal against an interlocutory decision of the Tribunal at first instance requires the leave of the Appeal Panel: NCAT Act, s 80(2)(a). We note that in her Notice of Appeal, in answer to the question 'Are you asking for leave?', Ms Choi answers 'No'. Nor has she provided any reasons why the Appeal Panel should grant leave to appeal.
4. Nevertheless, Ms Choi specifies three grounds of appeal, expressed as follows: 1. Whether there has been a failure to provide proper reasons. 2. Whether a wrong principle of law had been applied. 3. Whether there was a failure to afford procedural fairness.
5. Before dealing with any of these grounds, we need to emphasise that when Senior Member Gracie made his decision on 18 June 2020, 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.
6. Ms Choi wishes to characterise things differently, by arguing that the information released by the Respondent on 5 December 2019 'would be regarded as a part of the notice of decision dated 4 July 2019. Thus, it should be said the Respondent made a decision on 5 December 2019' (submissions dated 28 June 2020, at [8]). That argument then leads to a submission, at [15], that Ms Choi should be allowed 40 working days from 5 December 2019 (GIPA Act, s 101(1)) to lodge an application for review with the Tribunal - which would mean her application dated 31 December 2019 was lodged within time.
7. But Senior Member Gracie concluded that there was no 'reviewable decision' made by the Respondent on 5 December 2019 (reasons at [44]), and that conclusion is undoubtedly correct. He then refused the extension of time to lodge an application for review, commenting at [69]: Allowing the present application to proceed would enable the applicant to re-litigate the same matters which have already been finally determined against her in a previous decision of this Tribunal.
8. Having set the appeal in context, we will now deal with the parties' submissions on each of the grounds of appeal.
9. Ms Choi's submissions are contained in: 1. An attachment to her Notice of Appeal dated 28 June 2020, to which we refer as her submissions dated 28 June 2020; and 2. Appellant's Submissions dated 2 September 2020 (submissions dated 2 September 2020).
10. The submissions dated 2 September 2020: 1. describe the decision under appeal as 'ridiculous'; 2. allege there has been 'improper conduct' on the part of the Respondent and that 'corrupting behaviour' has led to the Respondent 'concealing' 100 pages of information. (Not only is there no justification for allegations of improper conduct or corrupting behaviour, there is no justification for a claim that 100 pages have been concealed, or even withheld. However, for an understanding of the reference to '100 pages', see [57] and [64] below); 3. allege that the supposed refusal to release the 100 pages amounts to an 'abnormal successive psychotic refusal'. (We are not able to discern the meaning of these words); and 4. ask the Appeal Panel to find the Respondent in contempt of the Tribunal, and to refer the matter to the Supreme Court.
11. The submissions dated 2 September 2020 are unhelpful. We make no further reference to them.
12. The Respondent's written submissions are dated 1 October 2020.

The parties' submissions - Ground 1

1. Ms Choi's submissions are contained in paragraphs [6]-[18] of her submissions dated 28 June 2020. However, although the ground asserts a failure to provide proper reasons, only paragraph [10] specifically addresses that ground, in the following way: The Tribunal made the inadequate reasons to be against my first ground at [29] and [31]: 'There is no evidence that the respondent agreed to release 950 pages of documents in its notice of decision' and 'The applicant did not challenge Mr Long's explanation'. However, Mr Long of the Respondent agreed to the 900-950 pages at [30]. Also, I repeated[ly] said Ms Sue Chew agreed to around 950 pages to release and had no need to comment more. Thus, it is a fact that the Respondent had 900-950 pages to release but released only 849 pages.
2. The other paragraphs in this section of her submissions assert either that there was no evidence to support the Tribunal's findings of fact, or that the Tribunal made incorrect findings or reached erroneous conclusions.
3. The Respondent submits that the Tribunal below complied with its obligation to provide proper reasons in its findings on material questions of fact, its understanding of the applicable law and the reasoning processes that led the Tribunal to the conclusions it made.
4. It submits Ms Choi is simply seeking to reventilate the arguments she made before Senior Member Gracie, in particular that the Respondent made a reviewable decision on 5 December 2019. The Respondent characterises Ms Choi's approach as one of seeking merits review 'in the guise of referencing different paragraphs from the judgment which she disagrees with'.

Consideration - Ground 1

1. We agree with the Respondent's submission that Ms Choi is simply seeking to reventilate issues that were decided against her by the Tribunal below. She does this by labelling her ground of appeal as 'failure to provide proper reasons', and to make submissions of 'no evidence to support findings of fact', 'incorrect findings' or 'erroneous conclusions', but there is no substance to any of these claims.
2. For example, Ms Choi claims there was no evidence to support the Tribunal's finding at [5] that '[t]he Tribunal dismissed the application to extend time for filing the application for review'. The complaint is baseless - the evidence is the Tribunal's decision reported as Choi v NSW Department of Justice [2019] NSWCATAD 248.
3. 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.
4. One of the issues Ms Choi has fixed upon, and referred to in [10] of her submissions dated 28 June 2020 with an 'inadequate reasons' claim, is her belief that the Respondent had 950 pages of information to release to her, but released only 849 pages. This proposition appears to be based on a statement, made by one of the Respondent's representatives and referenced at [29] and [30] of Senior Member Gracie's reasons, that 950 pages of documents would be released to Ms Choi on payment of the processing fee. But as the Senior Member clarified at [30]: Mr Long on behalf of the respondent explained that the figure of 950 was referrable to a statement made to the Tribunal on behalf of the respondent at the hearing on 26 November 2019 to provide a context to the number of documents available to be released. The Tribunal was actually informed that the number of documents was about 900-950 pages. This was conveyed as an approximate indication only and not an exact representation as to the volume of material to be released.
5. In fixing upon the figure of 950 pages, Ms Choi is choosing to ignore the actual figure of 849 pages, given to her in the Notice of Decision dated 4 July 2019: see [8] above, and particularly [80] of the reasons accompanying the Notice of Decision.
6. Ground 1 is not made out.

The parties' submissions - Ground 2

1. Ms Choi complains about the Tribunal's statement at [63] of its reasons, which she summarises as 'that there is no difference regarding the Tribunal's permission to extend time under 101(4) of the GIPA Act and under s41 of the NCAT Act'.
2. Ms Choi claims Senior Member Dr Lucy drew a distinction between the two legislative provisions in Choi v University of Technology Sydney [2017] NSWCATAD 198 (Choi v UTS), with these statements: 1. At [18], that s 101(4) of the GIPA Act 'permits the Tribunal to extend the time for the making of an application by the person if it is of the opinion that the person has provided a reasonable excuse for the delay in making the application'; 2. At [39], that '… s 41 of the [NCAT Act] permits the Tribunal to extend time in circumstances where the applicant has not provided a reasonable excuse for the delay in making his or her application'.
3. Next, Ms Choi implies that the Tribunal below, in refusing the extension of time application, failed to apply a principle stated in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) - namely, that extensions of time can be granted so as to avoid an injustice that could otherwise result from a rigid application of statutory time limits.
4. Ms Choi also claims the Tribunal below was wrong to say, at [38], that the Respondent's decision of 4 July 2019 was a reviewable decision under s 80(c) and s 80(j) of the GIPA Act. Instead, she claims, ss 80(d), 80(e) and 80(j) are the correct provisions.
5. The Respondent submits Ms Choi has misconstrued [63] of the Tribunal's reasons to mean that there is no difference between s 101(4) of the GIPA Act and s 41 of the NCAT Act. Instead, the Respondent submits, Senior Member Gracie was explaining that the matter before him, and the matter before Senior Member Ransome in Choi v NSW Department of Justice [2019] NSWCATAD 248, is the same, in the sense that both proceedings concern applications to challenge the same reviewable decision of the Respondent on 4 July 2019 and both applications were filed out of time.
6. The Respondent then submits that the principles in Jackson were correctly applied by the Tribunal below.
7. Finally, the Respondent submits that the reference in [38] of the Tribunal's reasons to s 80(c) of the GIPA Act is a mere typographical error, and should be s 80(d).

Consideration - Ground 2

1. As mentioned in [67] above, Ms Choi attacks what she describes as the Tribunal's statement that there is no difference between s 101(4) of the GIPA Act and s 41 of the NCAT Act. But she has failed to cite [39] of Choi v UTS correctly, by omitting the word 'if'. The incorrect citation suggests a positive statement that s 41 of the NCAT Act permits the Tribunal to extend time even in the absence of a reasonable excuse, but in fact the paragraph in its entirety says this: For abundance of caution, I note that if s 41 of the Civil and Administrative Tribunal Act permits the Tribunal to extend time in circumstances where the applicant has not provided a reasonable excuse for the delay in making his or her application, I would decline to do so, in the exercise of my discretion.
2. The distinction asserted by Ms Choi is not supported by what was said in Choi v UTS.
3. In any event, the Tribunal's central reason for not granting the extension of time is expressed in [69] of the reasons: Allowing the present application to proceed would enable the applicant to re-litigate the same matters which have already been finally determined against her in a previous decision of this Tribunal. For the reasons explained above, this is impermissible.
4. Next, Ms Choi's suggestion that the Tribunal failed to apply the relevant principle in Jackson is wrong. The Tribunal clearly addressed the principle, but did not find in Ms Choi's favour, stating at [58]: Having regard to the above authorities and well-established principles, the applicant has not satisfied me that an extension of time under section 41 of the [NCAT Act] is required to avoid an injustice.
5. As far as the reference to s 80(c) of the GIPA Act is concerned, Ms Choi is correct, but nothing turns on the error, since the Tribunal did not apply any wrong principle merely by referring to a legislative provision that was not relevant.
6. Ground 2 is not made out.

The parties' submissions - Ground 3

1. Ms Choi's submission in relation to Ground 3 is contained in [22] of her submissions dated 28 June 2020, which we set out in full: Ms Chew was a legal representative of the Respondent in 2019/305164 and this matter until Senior Member McAteer ordered the Respondent to give notice of representation at the case conference on 11 February 2019. In 2019/305164, Ms Chew filed and served the submissions including her legal representative reference number 'LEGAL5392/19', stating that she is a solicitor. However, Ms Chew was not registered as a solicitor of NSW in the certificate according to the Law Society. Then, Ms Chew was an agent and had to fill out the name of the authorizing officers in the notice of representation form. Several times, I requested the Registry and the Respondent to serve a copy of a notice of representation. However, they did not. Then, the two legal representatives, Ms Young and Mr Long talked at the hearing in this matter. That is a breach of s26 of the NCAT Act.
2. The Respondent submits that procedural fairness was afforded to Ms Choi at every stage of the proceeding.

Consideration - Ground 3

1. At its highest, Ms Choi's submission is that there was some minor technical non-compliance by the Respondent with the Tribunal's directions. But on no measure would (or did) such a trivial shortcoming amount to a denial of procedural fairness.
2. Ground 3 is not made out.

The applicable principles for the grant of leave

1. In Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 (Champion Homes) the Appeal Panel identified at [35] several principles that may be relevant to the grant of leave to appeal from an interlocutory decision. They include: 1. It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; 2. However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; 3. Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; 4. Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; 5. There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; 6. Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; 7. In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and In re Will of FB Gilbert (dec); 8. Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; 9. Lastly, subject to the above, the matters set out in [Collins v Urban [2014] NSWCATAP 17] (Collins) at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave.
2. For completeness, the matters set out in Collins at [84 (1)-(2)] were: 1. In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
3. As our analysis of Ms Choi's submissions indicates, her case does not remotely approach any of the principles summarised in Champion Homes and Collins. It contains nothing to warrant the grant of leave to appeal.
4. We refuse leave to appeal and dismiss the appeal.

Orders 1. A further oral hearing is dispensed with. 2. The application for Deputy President Westgarth's recusal is refused. 3. Leave to appeal is refused. 4. The appeal is dismissed. 5. Each party is to pay its own costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 18 January 2021