Choi v Secretary, Department of Communities and Justice - [2022] NSWCA 170 - NSWCA 2022 case summary — Zoe

NSWNSWCA

Choi v Secretary, Department of Communities and Justice

[2022] NSWCA 170

Court of Appeal (NSW)|2022-07-28|Before: Ward P, Meagher JA, Leeming JA, Bellew J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2022-07-28

Before

Ward P, Meagher JA, Leeming JA, Bellew J

Catchwords

[1990] HCA 21 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
[1992] HCA 57 Elphick v Westfield Shopping Centre Management Company Pty Ltd (2011) 216 IR 41
[2011] NSWCA 356 Fitness First Australia Pty Ltd v Dubow (2011) 251 FLR 241
[2011] NSWSC 351 Gallo v Dawson (1990) 64 ALJR 458

Source

Original judgment source is linked above.

Catchwords

[1990] HCA 21 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300[1992] HCA 57 Elphick v Westfield Shopping Centre Management Company Pty Ltd (2011) 216 IR 41[2011] NSWCA 356 Fitness First Australia Pty Ltd v Dubow (2011) 251 FLR 241[2011] NSWSC 351 Gallo v Dawson (1990) 64 ALJR 458[1936] HCA 40 Huddart, Parker and Co v Moorehead (1909) 8 CLR 330[1909] HCA 36 Konneh v New South Wales (No 2) [2013] NSWSC 390 Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198[2009] NSWCA 387 R v Trade Practices TribunalEx parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361[1970] HCA 8 R v TurnerEx parte Marine Board of Hobart (1927) 39 CLR 411Singh v Lekhwar [2021] NSWCA 260 Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771[2011] NSWCA 324 Tomko v Palasty (No 2) (2007) 71 NSWLR 61[2007] NSWCA 369 Waterside Workers' Federation (Aust) v JW Alexander Ltd (1918) 25 CLR 434

Judgment (58 paragraphs)

[1]

Background

In order to place the present applications in context, it is necessary to explain the matters leading up to these proceedings insofar as can be gleaned from the material that is now before the Court. In so summarising that procedural history, the Court is here making no findings as to disputed facts nor relying on factual findings in earlier proceedings.
Since 2017, Ms Choi has commenced various proceedings both in the Supreme Court and NCAT, including proceedings against the NSW Ombudsman, Legal Aid Commission of NSW, University of Technology Sydney, and the Commissioner of NSW Police (see the list of proceedings in the annexure to the respondent's submissions on the present applications). Those proceedings followed Ms Choi's exclusion from a course she was undertaking at the University of Technology, Sydney. Ms Choi had left Sydney in December 2016 and has resided in South Korea since then. From Ms Choi's Amended Summary of Argument, it appears that on 13 February 2017 the Deputy Ombudsman made a determination (to which Ms Choi refers in her Amended Summary of Argument) that Ms Choi was a vexatious litigant (and, she says, that this was "caused by mental disorders"). On 19 October 2018, Deputy President Hennessy, in NCAT, appointed a guardian ad litem for Ms Choi in each of two proceedings brought in NCAT by Ms Choi (the first, a proceeding against the NSW Ombudsman seeking a review of a decision that her application for information under s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) was invalid; and the second, being a complaint by Ms Choi against the refusal of the President of the Anti-Discrimination Board to refer a complaint by her to NCAT) (see the background as explained in earlier proceedings in this Court - Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68 (Choi v NSW Ombudsman)).
Ms Choi has alleged that the appointment of the guardian ad litem resulted from corrupt conduct committed by a wide range of persons including the Attorney-General, Legal Aid NSW, the NSW Ombudsman, the President of NCAT, other Tribunal members, the Department, her former guardian ad litem and various public servants.

[8]

Appeal to Appeal Panel

On 29 June 2020, Ms Choi lodged an appeal from Senior Member Gracie's decision of 18 June 2020 to the Appeal Panel under s 80(2)(a) of the CAT Act. The three grounds of appeal contended by Ms Choi were: a failure to provide proper reasons, the application of a wrong principle of law, and a failure to afford procedural fairness. Ms Choi required leave to appeal, this being for an internal appeal of an interlocutory decision (see ss 4(1)(d) and 80(2)(a) of the CAT Act).
Ms Choi's leave application was listed for hearing before the Appeal Panel constituted by Deputy President Westgarth and Senior Member Frost on 23 October 2020 by telephone.
A solicitor appeared on behalf of the respondent at the hearing on 23 October 2020. Ms Choi appeared by telephone and asserted that she could not hear any of the parties. The respondent maintains that emails sent by Ms Choi to the Registry of the Tribunal revealed that she was able to hear the proceedings before the Appeal Panel, but it is not necessary here to engage in that issue. It is sufficient to note that the respondent points to the following emails sent by Ms Choi, namely that Ms Choi: informed the Registry that she could not hear the parties, that she was unable to browse the justice.nsw.gov.au website in Korea, and that she was unable to access the telephone number that the Registry had provided for her dial into the hearing; asked who the Appeal Panel was constituted by (and asked that, if it was constituted by Acting District Court Judge Hennessy and Deputy President Westgarth, they be disqualified from hearing the application); asserted that the Department did not file and serve a proper notice of representation and therefore sought to disqualify the Department's solicitor from appearing on behalf of the Department; and requested that the Appeal Panel make an order to provide access to all of the information relating to the 4 July 2019 decision (this last request thus clearly pertaining to the 4 July 2019 decision the subject of both the 2019 and 2020 applications).
The Appeal Panel did not proceed with the telephone hearing on that occasion. Orders were made for the Department to provide submissions on the issues raised by Ms Choi in her emails to the Registry and for Ms Choi's application to be determined on the papers.
On 18 January 2021, the Appeal Panel (constituted by Deputy President Westgarth and Senior Member Frost) decided that the appeal be determined on the papers without any further oral hearing, refused leave to appeal, and dismissed the appeal (Choi v Secretary, Department of Communities and Justice [2021] NSWCATAP 8). On the same day, the Appeal Panel dismissed an application made by Ms Choi for Deputy President Westgarth to recuse himself.

[9]

Common Law Division proceeding

By a summons filed on 24 February 2021 (and later amended on 11 March 2021) in proceeding number 2021/58322 in the Supreme Court, Ms Choi then sought leave to appeal from the Appeal Panel's decision. The appeal, involving a question of law, required the leave of the Court (see s 83(1) of the CAT Act). The summons was also filed out of time (see r 50.12 of the UCPR), since under the UCPR Ms Choi had until 15 February 2021 to file a summons seeking leave to appeal the Appeal Panel's decision to the Supreme Court, and hence an extension of time to file the summons was also required.
On 9 March 2021, a notice of appearance was filed for the Secretary, Department of Justice and Communities (the respondent), recording the respondent's legal representative as Ms Lida Kaban (as noted above, General Counsel, Legal, of the Department).
On 10 March 2021, Ms Choi's application was listed for directions before Registrar Jones. At the commencement of the directions hearing, Ms Choi took issue with the appearance of Mr Cahill, the solicitor who was appearing (on the instructions of General Counsel) for the respondent. The respondent notes that the Registrar informed Ms Choi that General Counsel might instruct others to appear on her behalf if she wished and accepted that Mr Cahill was entitled to appear.
On that occasion, Ms Choi indicated that she wished to file an amended summons and the Registrar made orders: for Ms Choi to file and serve an amended summons, for the parties to exchange evidence and submissions, and to list the proceedings for further directions on 28 April 2021.
On 11 March 2021, Ms Choi filed an amended summons pursuant to the directions made by Registrar Jones on 10 March 2021.
On 28 April 2021, the application was listed for directions again before Registrar Jones. At the commencement of the directions hearing, Ms Choi again took issue with the appearance of Mr Cahill on behalf of the respondent (on the basis that he worked for the Crown Solicitor's Office). The respondent notes that the Registrar again accepted that Mr Cahill was entitled to appear. There was discussion as to the preparation of a joint Court Book; and the respondent's position, as explained by Mr Cahill, was that: Ms Choi had already filed and served on the respondent approximately 3,360 pages of documents and that the parties were unlikely to agree on the contents of a joint Court Book. (Ms Choi's position is that she made it clear on a number of occasions that she was prepared to participate in a joint Court Book provided it contained the 849 pages of material that had been released to her by the Department; and hence she contends that the respondent caused the issue that subsequently arose in relation to the Court Books - as to which see below.)
The Registrar made orders on 28 April 2021 that the application be listed for hearing for one day on 21 July 2021 and for each of the parties to prepare its own Court Book by 14 July 2021.
The respondent prepared a Court Book (comprising 461 pages of documents some of which the respondent says had been served on Ms Choi prior to 28 April 2021), which was filed on 13 July 2021. The respondent's position (which the primary judge was prepared to accept) was that a copy was emailed to Ms Choi (who as noted above was residing in South Korea) on 14 July 2021. Ms Choi complained in due course that she had not received the respondent's Court Book.

[10]

Hearing on 21 July 2021

On 21 July 2021, the date of the hearing listed before Bellew J, Ms Choi forwarded the respondent 23 emails attaching approximately 3,300 pages of documents. Ms Choi also sent a series of emails to his Honour's associate. (Ms Choi, in her submissions in this Court, explained in some detail why she contends that she was "caused" to send the emails twice.)
At the commencement of the hearing on 21 July 2021 (at which Ms Choi appeared by AVL), Ms Choi asserted that she had not received the respondent's Court Book. There was then a discussion concerning the difficulty that his Honour considered this posed. In the 9 March 2022 Decision, his Honour records the following as having occurred on that occasion (see at [6]-[8]), including reference to the transcript (the accuracy of which Ms Choi here contests) of exchanges on that occasion: 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: 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. 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: 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. 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.
His Honour then made the following orders: 1. The hearing date of today is vacated. 2. I direct the Respondent to serve on the Applicant within 14 days a copy of the material referred to as the "Respondent's court book" such serve to be effected either by pre-paid registered post or by door-to-door international courier. 3. I direct the Applicant to file and serve any material upon which she wishes to rely by 31 August 2021. 4. The Respondent is to provide any further written submissions by 7 September 2021. 5. The Applicant is to reply with any further submission by 10 September 2021.
His Honour further recorded the following notations to those orders (the second being the "further note" to which Ms Choi refers in the Appeal Proceeding): I further note: Filing and service of any material by the Plaintiff may be affected [sic] by email. Consistent with the earlier observations made by today's proceedings I note that I will proceed to determine this matter on the papers sometime after 10 September 2021.
Ms Choi appears to refer to the orders made orally by his Honour on 21 July 2022 as the judgment given orally (which she complains does not accord with the subsequent written judgment) and in her amended draft notice of appeal Ms Choi seeks leave to appeal from those as well as from the 9 March 2022 Decision itself.
It is relevant here also to note that Ms Choi maintains that, after the statement recorded at [6] of his Honour's judgment, there was the following exchange (which she maintains has been fraudulently omitted or "sneakily edited" from the official transcript): Under the condition yes, but your Honour - however, could you please give me leave file the hearing - the audio recording hearing of the tribunal.
Relevantly, Ms Choi does not appear to dispute that it was she who raised the suggestion that the matter be determined on the papers (a course with which she was presumably familiar given that this was the way that the Appeal Panel had proceeded) but Ms Choi is adamant that her consent was conditional and that she did not understand that there would not be a further hearing. Ms Choi has also (as adverted to above) made very serious allegations as to tampering with the transcript of that hearing (variously accusing the Reporting Services Branch under the direction or instruction of Ms Kaban of fraudulent manipulation of the transcript and the Supreme Court of having issued a "fraudulent official transcript"). It may be noted that even on Ms Choi's own account of events the only condition she identified was that she be given leave to file an audio recording of the tribunal; not that she be given leave to issue a subpoena for such a recording, as now appears to be her complaint - and it does not appear that any audio recording was ever tendered to the primary judge.
Complaint is also made by Ms Choi, on the present applications, that the primary judge conducted a "private hearing" of the matter (on the basis that there was an exchange recorded on the transcript between the respondent's solicitor and his Honour before Ms Choi became connected to the telephone hearing) and Ms Choi makes the very serious allegation that his Honour (who she contends, due to his attire, was conducting wholly or mainly an administrative function - see below) made orders on "instructions" from a third party (who Ms Choi suggests was Ms Kaban through Bluetooth).

[11]

Further submissions and communications

Following the above orders, the respondent served Ms Choi with the respondent's Court Book and the respondent served written submissions.
On 31 August 2021, his Honour made the following orders in Chambers: 1. The applicant is to file and serve any further material upon which she wishes to rely by 6 September 2021. 2. The respondent is to file any further submissions by 10 September 2021. 3. The applicant is to file any submissions in reply by 13 September 2021. 4. For the purposes of orders (1), (2) and (3) filing is to be effected by providing the material directly to my Associate.
The respondent filed and served further submissions on 9 September 2021.
On 29 September 2021, after receiving a communication from Ms Choi apparently attaching correspondence from the Registrar at NCAT, his Honour's associate communicated the following to the parties: I refer to the recent email sent from Ms Choi on the morning of 29 September attaching correspondence received from the Registrar of the Tribunal. His Honour has asked me to provide the following response to all parties: 1. His Honour does not propose to engage in correspondence about the recordings. If what has been provided is in some way faulty, that is an issue to be resolved directly with the Tribunal. It is not an issue in which his Honour will intervene. 2. His Honour notes that this matter continues to be delayed. He is prepared to allow the plaintiff a further 7 days, i.e. until 6 October next, to provide any further material. He will then proceed to consider the issues and deliver judgment. 3. Finally, his Honour has directed that, other than for the purposes of providing any additional material upon which any party seeks to rely, there is to be NO further correspondence with these Chambers.
Ms Choi here appears to complain about the direction that there be no further correspondence with chambers as being inconsistent with the leave given for her to represent herself; but, in any event, it does not appear that further material was submitted, and the respondent did not make any further submissions.

[17]

Procedural history of subsequent proceedings in this Court

Ms Choi did not file a Notice of Intention to Appeal from the primary judge's decisions. Therefore, the material date by which, under r 51.10(1)(b) of the UCPR, Ms Choi was required to file a summons seeking leave to appeal from the 9 March 2022 Decision was 6 April 2022 and the material date by which Ms Choi was required to file a summons seeking leave to appeal from the 22 March 2022 Decision was 19 April 2022.
A summons was forwarded by Ms Choi to the Registry on 6 April 2022, with a draft notice of appeal and draft Summary of Argument. The summons was stamped as filed on 20 April 2022 (hence, strictly out of time).
On 5 May 2022, the respondent filed a notice of appearance in the Appeal Proceeding.
On 9 May 2022, the summons in the Appeal Proceeding was listed for directions before the Registrar of the Court of Appeal, Mr Cahill appearing on behalf of the respondent. (The respondent says that there was no objection raised to Mr Cahill's appearance on this occasion. Ms Choi, in her submissions on the present applications, appears to accept that she did not raise an issue as to Mr Cahill's delegation when the matter was before Bellew J, but says that this was because Mr Cahill had said at a directions hearing before the Registrar on 28 April 2021 that he was substantively employed by the Crown Solicitor's Office and was on secondment as a principal for the Secretary; which Ms Choi maintains is a lie; saying that Mr Cahill is working under the title of solicitor of the Department and that a solicitor at the Crown Solicitor's office has no power for that role; Ms Choi asserts that this is a contempt of court.)
Registrar Riznyczok informed the parties that Ward P had determined that the application be listed for a leave only hearing; and the matter was listed for hearing on 28 July 2022. Ms Choi indicated that she sought to appeal the decision that the application be listed for a leave only hearing and that she was seeking judicial review of Bellew J's decision.
As to the latter, on 9 May 2022 Ms Choi queried with the Registry why her judicial review summons had not been filed (referring it seems to the document dated 6 April 2022). Ms Choi contended that the fee for that application had been waived (by reference to a letter in relation to the cancelled case number 2022/115722). The Registrar refused Ms Choi's fee waiver application and, after some communication in relation to that decision, on 13 June 2022 Ms Choi paid the fee and the summons seeking judicial review dated 9 June 2022 was accepted for filing (and stamped as filed) on 13 June 2022.

[18]

Hearing on 28 July 20222

As noted earlier, there was a deluge of interlocutory motions sent to the Registry in June and July 2022. On 28 July 2022, this Court proceeded to hear (as a concurrent hearing) Ms Choi's summons for leave to appeal from the two decisions of the primary judge as well as the Secretary's Summary Dismissal Motion in the Judicial Review Proceeding. Ms Choi appeared by telephone, and through an AVL link in light of some technical difficulties she was experiencing. The Court was unable to see Ms Choi.
It should be noted that various of the notices of motion prepared by Ms Choi make application for her to be permitted to have a "McKenzie Friend" in the matter (variously named as Mr Peter Zonneyville (incorrectly spelled "Zonnevylle") and Ms Telina Webb); and the Court was informed at the hearing of the matter on 28 July 2022 that Mr Zonneyville was in the virtual courtroom. However, Ms Choi proceeded to take the conduct of the oral argument in respect of the applications herself (at some length), it was not therefore necessary to call upon or make any formal order in relation to Mr Zonneyville's assistance as Ms Choi's "McKenzie Friend". Suffice it to note that Ms Choi apparently had the assistance of Mr Zonneyville available to her.
At the outset of the proceedings on 28 July 2022, Ward P heard and refused an application by Ms Choi that her Honour disqualify herself (see the separate reasons published today by Ward P on the disqualification application: Choi v Secretary, Department of Justice and Communities [2022] NSWCA 172).
The Court then heard an application by Ms Choi that she be permitted to record the hearing on 28 July 2022, which had been foreshadowed in advance in an email dated 27 July 2022 from Ms Choi. The Court refused that application.
Section 9 of the Court Security Act 2005 (NSW) (Court Security Act) relevantly provides that: (1) A person must not use a recording device to record sound or images (or both) in court premises. Maximum penalty - 200 penalty units or imprisonment for 12 months (or both). (2) Subsection (1) does not apply with respect to any of the following - (a) the use of a recording device that has been expressly permitted by a judicial officer. …
"Court premises" is defined by s 4 as "in relation to a court … the premises or place where a court is held or that is used in relation to the operations of a court" and includes, in sub-par (c) as "a part of premises or a place being used to enable a person to appear before the court by means of an audio link or audio visual link".
Pursuant to s 9A, a person must not use any device to transmit sound or images (or both) from a room or other place where a court is sitting, or to transmit information that forms part of the proceedings of a court from a room or other place where that court is sitting in any of the specified ways (including by transmitting the sounds to any person or place outside that room or other place, or by posting entries that contain the sounds on social media sites, other websites or the internet) except as expressly approved by a judicial officer (see s 9A(2)(b) and (c)).
Pursuant to s 9B of the Court Security Act, a person must not transmit or distribute a recording of sounds or images of court proceedings, including part of a recording, by any means (unless expressly approved by a judicial officer - see s 9B(2)(a)).
It is not necessary here to explore the question as to the extraterritorial operation of the Court Security Act, which was not the subject of argument before the Court. Relevantly, it was apparent from various references in the materials relied upon by Ms Choi in this Court that Ms Choi has made a number of recordings of proceedings (both in NCAT and in this Court) and that Ms Choi has (and she admitted as such) uploaded some or all of those recordings to YouTube. These recordings include the audio recording of the hearing on 21 July 2021; and the audio recording file of an NCAT case conference by Senior Member McAteer on 11 February 2020 (as well as other proceedings, including one application heard by Macfarlan JA and McCallum JA, as her Honour then was). There was no authorisation for the placement of sound recordings of such proceedings to be published on YouTube. Ms Choi maintained that the recordings had been uploaded to YouTube as that was the convenient way to forward them to this Court (given the size of the files of the sound recordings). That does not, however, explain the posting of commentary in relation to at least one of the recordings (to the effect that as the footsteps of one of the judges could not be heard that judge could not have been present and that the real "con artists" are the Supreme Court). In that regard, publication of the recordings and the commentary appear calculated to bring this Court (and the administration of justice) into disrepute. That is a serious matter.
Ms Choi informed this Court that, if she were permitted to record the hearing, she would not upload it to YouTube. Regrettably, in light of the previous instances of such recordings, it is difficult to accept such a promise at face value. In circumstances where there appeared no good reason to permit the recording of the hearing, Ms Choi's application to record the 28 July 2022 hearing was refused. It was noted that a transcript of the hearing would be available on application in the ordinary course. (Ms Choi has subsequently emailed this Court to provide the benefit of advice apparently obtained by her from an unidentified lawyer in Korea to the effect that the legislation allows her to record proceedings in Court "in these extraordinary circumstances (revealing alleged corruptions [sic] by the Attorney-General, Ms Kaban, staff at the Office of General Counsel, the Registry) where it is reasonably necessary for the purpose of protecting the lawful interests of the party who records at court". That does not change the ruling made on 28 July 2022.)

[21]

Extension of time for filing summons

There is a threshold issue as to whether Ms Choi's summons seeking leave to appeal is out of time (and hence itself requires leave). As noted above, the relevant date for filing of the summons for the purposes of the 9 March 2022 Decision was 6 April 2022 and was 19 April 2022 in relation to the costs appeal (see r 51.10(1)(b) of the UCPR), those being 28 days after the respective material dates.
In determining whether to grant an extension of time to bring an appeal, the Court considers the length of delay; any explanation for the delay; whether the applicant for leave has a fairly arguable case; and the extent of any prejudice suffered by the respondent to the application (Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] per Basten JA with whom Hodgson and Ipp JJA agreed). Leave to proceed out of time will not ordinarily be granted where an applicant has no prospects of success (see Moran v Armidale Local Aboriginal Lands Council [2019] NSWCA 220 (Moran), the Court there citing Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30 at 459 per McHugh J).
Given that the summons seeking leave to appeal has now been heard (and, as the bench was constituted by three judges, heard as a concurrent hearing with the appeal itself - the very hearing for which Ms Choi had contended), it is not productive here to explore the distinction between lodgement and filing of applications (see Fitness First Australia Pty Ltd v Dubow (2011) 251 FLR 241; [2011] NSWSC 351 at [79]ff); which indicates why an extension of time is necessary even though the summons was emailed to the Registry on 6 April 2022. Rather, in the interests of the just, quick and cheap resolution of the real issues in dispute (see s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act)), there should simply be an extension of time to 20 April 2022 for the filing of the summons seeking leave to appeal and this Court will so order. Of course, Ms Choi still needs leave to appeal from the respective March 2022 Decisions.

[22]

Application for leave to appeal

Turning then to the application for leave to appeal itself, the principles applicable on such an application are well known (and, indeed, well known to Ms Choi, since they were restated recently by this Court on another application by Ms Choi (see Choi v University of Technology Sydney (No 2) [2020] NSWCA 342). There, Bell P (as the Chief Justice then was) and Emmett AJA said at [40]: 40. As has regularly been pointed out in decisions of this Court, a grant of leave to appeal generally requires there to be identified an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: see, for example, Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
Ms Choi has herself noted in her Amended Summary of Argument the decision of Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164.
Thus, something more must be demonstrated by Ms Choi than that the impugned decisions were arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (see, in addition to the above-mentioned authorities, Clarke v State of New South Wales [2015] NSWCA 27; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Collier v Lancer (No 2) [2013] NSWCA 186; Moran; and more recently Coffs Harbour City Council v Noubia Pty Ltd [2022] NSWCA 32 (Coffs Harbour City Council v Noubia)).
Where a disproportionate amount of time and cost will be involved (as would particularly be the case here insofar as complaint is made as to the requirement to pay a $155 processing charge), that is a factor tending against the grant of leave to appeal, particularly having regard to the case management principles enshrined in the Civil Procedure Act (see Gibson v Drumm [2016] NSWCA 206 (Gibson v Drumm), per Beazley P (as Her Excellency then was) and Simpson JA at [20]). The fact that an allegation of corruption is made is not of itself necessarily sufficient to support an application for leave to appeal (see Moran at [13] and [16]).
Where the relevant decision involves the exercise of a discretion (such as the costs decision), to succeed on an appeal from the decision it would be necessary to establish error in the House v The King sense (see House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 per Dixon J (as his Honour then was), Evatt and McTiernan JJ), i.e., that there was an error of legal principle; that there was a material error of fact; that the decision made took into account an irrelevant consideration or failed to take into account or give sufficient weight to a relevant consideration; or that the decision was so unreasonable or unjust as to bespeak such an error (see also Micallef v ICl Australia Operations Pty Ltd [2001] NSWCA 274 at [45] per Heydon JA (as his Honour then was), with whom Sheller JA and Studdert AJA agreed; Gibson v Drumm at [22] and Coffs Harbour City Council v Noubia at [68]).

[23]

Ms Choi's draft notice of appeal

Ms Choi's initial draft notice of appeal dated 6 April 2022 identified a number of grounds of appeal (interwoven with submissions and argument), by reference to ten separate headings. The amended draft notice of appeal forwarded to the Registry by Ms Choi on 22 July 2022 repeats much of the content of the 6 April 2022 version, includes further submissions, and identifies the appeal grounds as being: Appeal Ground 1: No hearing decision Appeal Ground 2: Natural Justice was not offered Appeal Ground 3: The three principal reasons Appeal Ground 4: Solicitor on the record Appeal Ground 5: Party Name Appeal Ground 6: A solicitor as a GIPA decision-maker Appeal Ground 7: Offence Appeal Ground 8: Public Importance Appeal Ground 9: Jurisdiction was not exercised Appeal Ground 10: Unreasonableness
In the amended draft notice of appeal (in the new Summary section, under the heading "Reasons"), there also appears the following heading, which apparently introduces a second appeal ground 9 (but seems to be an expansion of the existing Appeal Ground 9), as follows: APPEAL GROUND GROUND [sic] 9 Jurisdictional errors in the summons lodged with th [sic] Court below.
In her Amended Summary of Argument dated 22 July 2022, Ms Choi identifies the nature of the case as being: 4. This matter is about jurisdiction. On 27 March 2019 and 4 July 2019, the Office of the General Counsel ("OGC") determined "not-held" decisions in response to Item 3C and Item 16 the [sic] information which the Attorney-General of New South Wales ("Attorney-General") sent, stating "…NSW Attorney General's office are separate agencies from the Department of Justice, and for the purpose of making a request under the GIPA Act. As such, you may wish to consider issuing separate access applications with them." I have raised an issue of jurisdiction since the case conference in 2019/305164. The Tribunal members said they forgot to bring the copy of the decision. The Information and Privacy Commissioner ("IPC") made an unclear answer. I have changed [sic] to seek jurisdiction to represent the Respondent. The Tribunal member and over 10 solicitors has not filed proper notice of representation and made absurd claims to prevent the decision from being reviewed. 5. The cross-over General Counsel (an officer who has multi-roles) enabled the ridiculous claim 2020/11594 is a re-litigation of 2019/305164 to be a fact in this cross-over Department; enabled the Court below to publish the Judgment filled with incorrect information and disabled sound recording and authentic transcript at the Court below to be released.
The reference at [4] to matter 2019/305164 is obviously a reference to the application before Senior Member Ransome which was determined on 5 December 2019 (the Senior Member there dismissing Ms Choi's application to extend time for the lodging of her September 2019 application for review of the Department's 4 July 2019 decision; and dismissing that application). The reference to proceeding 2020/11594 is obviously a reference to the application before Senior Member Gracie which was determined on 18 June 2020 (the application to extend time there also being dismissed).
In Ms Choi's Amended Summary of Argument, she identifies the following questions as being raised in the Appeal Proceeding: 8. Did the Victims Services have jurisdiction to handle the Item 10 of my amended access application dated 4 January 2018? 9. Did the Attorney-General of New South Wales have jurisdiction to handle the Item 5 of my amended application dated 4 January 2018? 10. Did Ms Chew have to make a valid decision in response to the scope in Choi's email dated 6 February 2020? 11. What is the party name? Department of Communities and Justice or Secretary? 12. Did/Does Ms Kaban have jurisdiction to represent the Respondent? 13. Dis/Does [sic] Mr Cahill have jurisdiction to be a delegate of Ms Kaban? 14. If Justice Bellew handed down the Judgment which is not consistent with the Judgment given orally, should the order be set aside under rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW)("UCPR Rules")? If the answer is no, [sic] 16. In the circumstances where the Justice or Judge had a private hearing with the Respondent in the applicant's absence, should the Judgment and the order be set aside under rule 36.15 of the UCPR rules? 17. Regarding the costs judgments in Choi v Secretary, Department of Communities and Justice (2) [2022] NSWSC 301, in the circumstance where the decision was made on the base [sic] of the wrong facts the Respondent served any materials, should the judgment and the order be set aside under rule 36.15 or/and rule 36.16 of the UCPR rules? 18. Can the decision to determine the matter on the paper [sic] without a further hearing be justified? 19. Are the decisions made by Justice Bellew dated 9 March 2022 in Choi v Secretary, Department of Communities and Justice [2022] NSWSC 190 wrong? If the answer is yes, (1) Is this because the decisions were made on the papers without a hearing? Or/and (2) Is this because the Judgment relied on the findings of a fact obtained from the hearing despite the order to vacate the hearing? (3) Is this because the matter was determined pursuant to the orders and FURTHER NOTE given orally dated 21 July 2021 which are invalid ? (4) I Is [sic] this because the matter was determined without considering the earlier observations? Or/and (5) Is this because a wrong principle in Shamieh trading as Consolidated Lawyers was applied.? Or/and (6) Is this because the first, second and third principal reasons were wrong? (7) Is this because the reasons for the order to vacate the hearing given orally are altered in the written Judgment dated 9 March 2022? (8) Is this because the written reasons for the orders given orally dated 21 July 2021 have not been delivered to the parties? Uniform Civil Procedure Rules 2005 r36.2 (9) Is this because Choi could not understand the substance of the reasons for the orders given orally dated 21 July 2021 when these were handed down? (10) Is this because Lida Kaban or/and Mr Justin Cahill, Mr [sic] Chew, Mr Long, Ms Young and Mr Hua have no power to represent the Respondent? Or/and (11) Is this because the notice of decision dated 27 March 2019 or/and the internal review decision dated 4 July 2019 are not valid ? If the answer is yes, is this because the decision-makers are legal practitioners, Ms Chew and Mr Long? Or/and is this because the decision-makers were not delegated? 20. Is my review application under the Government Information (Public Access) Act 2009 ("GIPA Act") at NCAT dated 13 January 2020 a re-litigation of my processing charge review application under the GIPA Act dated 24 September 2019 ? 21. Does the Respondent's conduct amount to offence under s116, s117, s118, s119 and s120 of the GIPA Act? 22. Should the following apparent errors be set aside under r36.17 of the UCPR rules? (1) The Respondent party name should be "Secretary, Department of Communities and Justice ABN 36 433 875 185" (2) The legal representative should be Lida Kaban (3) The position name General of Counsel should be deleted from the documents at the Court for fairness and justice.
It is apparent, from the above recitation of the questions that Ms Choi sees as arising in the Appeal Proceeding (as well as from the relief sought in the amended draft notice of appeal) that if leave to appeal is granted, Ms Choi is seeking to ventilate issues that go well beyond the impugned decisions (those decisions being simply the refusal to extend time for the filing of the appeal from the decision of the Appeal Panel and the decision as to costs). For example, Ms Choi raises issues as to the decision-making powers within the Department and issues as to the proper entities to be joined to the proceeding. In the relief claimed, Ms Choi seeks release of the "100 pages" that Ms Choi believes have been withheld from her.
As to the reasons why leave to appeal should be granted, in her Amended Summary of Argument Ms Choi raises the following matters.
First, Ms Choi says that the "volume of the matter" is simple; and that the crux of the dispute is whether or not 2020/11594 (being the NCAT application heard by Senior Member Gracie) is a re-litigation of 2019/305164 (being the NCAT application heard by Senior Member Ransome) (Ms Choi maintains that it is not).
Second, Ms Choi contends that natural justice has not been offered (except for a case conference in NCAT). Ms Choi complains that NCAT "cut off" part of an audio recording file of the case conference (a reference to the 11 February case conference where she maintains that Senior Member McAteer determined that her 2020 NCAT application was not a re-litigation of the 2019 application); that Bellew J refused to issue a subpoena for the audio recording file of the case conference; and Ms Choi alleges that his Honour: … refused to provide the written reasons for the orders given orally; was giving oral orders while being instructed by someone; had a private hearing with the Respondent; bullied and cheated me; altered the Transcript and the substance of the reasons for the orders.
Third, Ms Choi maintains that, if leave is not granted, injustice will result in that: there has been a costs order over $8,000 made against her and her "incorrect information" (that she identifies as being information that she is a "false claimer" in an intelligence report made to police) "will remain forever"; and she and her son may be unable to return to Australia.
Fourth, Ms Choi says that this is a matter of public importance, that she is "an extreme or typical case when individual's wrong information is shared among the public agencies". Ms Choi asserts that she is a victim of the Australian Criminal Intelligence Model Strategy and that the material already released to her has revealed misconduct and corruption by various persons (including at NCAT and the appointed guardian ad litem). Ms Choi says that the 100 pages "or all my information kept" by the respondent "could reveal more serious corruption" (by the Attorney-General, the NSW Ombudsman, the University of Technology Sydney and the police).
Finally, Ms Choi invokes the interests of justice, contending that the grant of leave will enhance the interests of justice both at NCAT and in the Supreme Court, Ms Choi submitting that the GIPA Act concerns the conduct of the administrators (about whom she makes a number of complaints) and that the grant of leave "has implications to the most applicants who are self-represented litigant in the GIPA review proceedings".
In summary, Ms Choi's position is that the 9 March 2022 Decision and orders were made irregularly, illegally or against good faith in the meaning of r 36.15 of the UCPR (citing Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 (Heperu) at [16] per the Court (Allsop P, Campbell JA and Handley AJA)) and similarly Ms Choi submits that the costs decision (the 22 March 2022 Decision) should also be set aside or varied under the r 36.15 and/or r 36.16 of the UCPR (again citing Heperu as well as Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2019] NSWCA 187 at [13] per Simpson AJA (Bell P, as his Honour then was, and Macfarlan JA agreeing at [1] and [2]), citing Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 at 302 per Mason CJ; and Coles v Burke (1987) 10 NSWLR 429 at 437 per Kirby P (with whom Samuels and McHugh JJA concurred).
Ms Choi contends that the primary's judge's handing down of "unconsidered and impulsive" decisions damages judicial accountability (citing Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 442 per Meagher JA), emphasising the public nature of court proceedings and judgments as providing an important means of judicial accountability (citing B Debelle, "Judicial Independence and the Rule of Law", (2001) 75(9) Australian Law Journal 556 at 563). Ms Choi submits that if a hearing is conducted by telephone (during COVID-19), the Court "should have put more effort to ensure a transparent process for judicial accountability and eventually, public confidence"; and Ms Choi says that special consideration may be required, given that she is a "self-represented widowed single mother with a nine year-old boy with non-English background and no legal knowledge in Korea" (citing Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57).
Ms Choi complains that her contentions as to obvious jurisdictional errors have not been determined and that investigative agencies have not responded to her complaints. As to the costs of the Appeal Proceeding, Ms Choi contends that the Office of General Counsel has caused the costs and should pay them.
The respondent (who opposed the grant of leave for an extension of time for filing of the summons seeking leave to appeal) contends that, if leave is granted for an extension of time to file a summons seeking leave to appeal, the application for leave to appeal should nevertheless be refused. In substance, the respondent so submits on the basis that: if leave to appeal were to be granted, it would be the fifth time since 2018 that Ms Choi has re-agitated the issues in dispute before NCAT, the Appeal Panel and the Supreme Court, thereby putting the respondent to further significant costs and resulting in injustice to it; the impugned judgments disclose no error of law; Ms Choi has raised no clear grounds of appeal and raises issues not subject to the proceedings before the primary judge; the application raises no issue of principle and no question of public importance; and that Ms Choi has not identified a reasonably clear injustice going beyond something that is merely arguable. The respondent points out that much of the relief sought in the summons seeking leave to appeal goes beyond the appeal sought to be brought against the primary judge's judgment.

[25]

Appeal Ground 1 - No hearing decision

This proposed ground encompasses the matters raised under the first four headings in the initial draft notice of appeal and, in essence, relate to the decision by the primary judge to determine on the papers Ms Choi's application for leave for an extension of time to file her application for leave to appeal from the decision of the Appeal Panel.
First, Ms Choi relies on the fact that on 21 July 2022 his Honour said "I will adjourn" and did not list a further hearing. Ms Choi contends (at [15] of the Amended Summary of Argument) that the primary judge never revoked the statement "I will adjourn"; that his Honour's word is an order; that a further hearing was not listed; and therefore that the primary judgment is wrong. There is some uncertainty as to the import of this complaint. The respondent says that this appears to be a contention that Bellew J (on adjourning the proceedings on 21 July 2021 so that it could be dealt with on the papers) failed to re-list the proceedings for a further hearing. It appears, however, to be a complaint that it was somehow beyond the power or competence of the primary judge (having adjourned the hearing) then to proceed to determine the matter without a further oral hearing.
The second heading "The orders and FURTHER NOTE given orally" relates to the orders made on 21 July 2021 (set out above) and the second notation thereto (namely, that "Consistent with the earlier observations made by today's proceedings I note that I will proceed to determine this matter on the papers sometime after 10 September 2021").
Ms Choi contends that the notation "made by todays proceedings" was altered (referring to a recording posted by her on YouTube of the proceeding) and says that the "judgment" given orally was in fact that "I have made regarding today's proceedings". The import of such an alteration (even if that contention as to an alteration be correct) is not clear. Nevertheless, Ms Choi contends that this notation "cannot confer the Chamber [sic] to determine the matter on the papers without a hearing" and she maintains that "this note can cause disputes and requires another proceeding". The complaint thus seems to be that it was beyond the power of the primary judge to proceed to deal with the matter on the papers. Complaint is also made that the "earlier observations" referred to in the notation were not identified in his Honour's subsequent written reasons.
Ms Choi maintains that: The order that culminated in ordering to file the parties materials: the principles is [sic] at [61] in Choi v NSW Ombudsman [2021] NSWCA 68. Also, the order "Application to extend time under section 41 of the NCAT act 2013 is dismissed" had no full effect. Leave has not been refused yet. I am entitled to apply for extension of time under s101 of the GIPA Act. On the contrary, the Appeal Panels [sic] made an order which I did not request.
Thus, Ms Choi maintains that the orders and "FURTHER NOTE" are invalid; and should be revoked
The third heading in the initial draft notice of appeal is "3. The hearing date of today is vacated". Ms Choi's complaint under this heading appears to be that it was the primary judge who wanted to have the hearing vacated (saying that the parties wanted to have a hearing); and asserting that a reasonable judge would have continued to proceed with a hearing.
Ms Choi cavils with the accuracy of the matters recorded by the primary judge in the 9 March 2022 Decision as to the proceedings before the Court (saying that nearly all of this section of the judgment is "made-up and baseless"). Ms Choi here takes issue with the suggestion that she was in any way responsible for the listing of the hearing being vacated (in the course of which Ms Choi asserts that for a "standard judge" the one hour and 20 minutes between the sending of the last of her 23 emails (attaching 3,300 pages of documents) and the hearing could be enough time to read her materials "for such a simple matter"); and seems to cast doubt on whether the primary judge "did really vacate the hearing" (on the basis that findings of fact obtained from the oral hearing formed the basis of the principal reason given by his Honour for refusing the extension - i.e., as to the history of the proceeding). Complaint is made in this context that the transcript recorded at [6] and [7] of his Honour's reasons has been manipulated. Ms Choi is adamant that she "did not have to consent to determine the matter on the papers without conditions for the Respondent"; rather, that she said she "could consent with conditions" and that the condition is not recorded in the judgment.
The fourth heading in the draft notice of appeal "4. The decision to determine the matter on the papers cannot be justified" effectively encapsulates the nub of the complaints under Appeal Ground 1, namely that the primary judge made the decision to determine the matter on the papers. In so submitting, Ms Choi opined that the primary judge made various errors in determining the matter on the papers, as to which Ms Choi said the following: "[a]ccording to the oral Judgment and the written Judgment, I am unreasonable and irresponsible […] [o]n the contrary, I am responsible at least".
Complaint is made in this context that the determination of the matter on the papers is not consistent with the "earlier observations" or "what had been discussed" at the oral hearing on 21 July 2022; that the primary judge did not list the matter for a hearing "despite a commitment"; that NCAT and the Department have never responded to the contention that the Department had no jurisdiction to determine whether the information sought by Ms Choi was held by "Victim Services" and the Attorney-General; that the claim that the 2020 NCAT application was the re-litigation of the 2019 NCAT application and (additionally or alternatively) to review Senior Member Ransome's decision of 5 December 2019 is absurd; that the audio recording file of the case conference on 11 February 2020 (which Ms Choi believes to have been edited) is important evidence (in that Ms Choi says that Senior Member McAteer said "no" when Ms Chew said that the GIPA Act review proceeding in 2020 was a re-litigation of the processing charge proceeding in 2019) and the primary judge committed to accepting audio recording files from NCAT. As to the commitment to listing a further hearing, Ms Choi refers to the statement made by the primary judge that: On the understanding that if there is an issue about anything, the matter can be put back before me, but if I hear nothing from anybody, will assume the orders that I have - that I'm about to make have been complied with and I can just go ahead and determine the matter on the papers.
Complaint is also made in this context that, before the hearing commenced, the primary judge and Mr Cahill were having a "private hearing" in Ms Choi's absence "talking about a history of the proceedings and the CourtBook [sic]" and Ms Choi says that it was his Honour who raised an issue of the respondent's Court Book.
Again, Ms Choi says that she said that she could consent to determine the matters on the papers conditionally; one condition being the provision of an audio recording file from NCAT but that the primary judge refused to issue a subpoena. Ms Choi says that this means that the judge's chambers "cheated" her by not complying with the commitment; and thus, the decision to determine the matter on the papers cannot be justified.
Ms Choi complains that the primary judge gave her leave to communicate via email and to conduct the case (and seems to see this as inconsistent with what was recorded in the judgment at [9] about her email communications and the way of conducting her case). (It appears from Ms Choi's Summary of Argument that the email communications in question related to her "informing" the primary judge's chambers of a contempt of court application in relation to another judicial officer "so that his Honour could be careful".) Thus, Ms Choi says that "the negotiation (determining the matter on the papers) was broken".

[27]

Consideration of Appeal Ground 1

It was clearly open to the primary judge, in the exercise of his discretion as to the management of the proceeding before him, to order that Ms Choi's application be heard on the papers. Whether another judge might have taken a different approach is not to the point. There was no House v The King error established in relation to the making of that decision; nor any issue of principle or public importance involved in the making of that decision. Whether or not there had been an opportunity to read the volume of material that Ms Choi had sent the morning of the hearing, and whether or not the respondent's solicitor had been able to proceed on that occasion, the transcript records that it was Ms Choi who suggested (and she does not dispute this) that the matter could be dealt with on the papers. The primary judge endeavoured to make clear to Ms Choi what that would involve and Ms Choi was given the opportunity to provide further submissions and materials in that context. There was no denial of procedural fairness in the making of that decision; nor was it beyond the power of the primary judge to determine to deal with the matter on that basis.
As to the complaint about a private hearing, that is addressed in relation to Appeal Ground 2 below. As to the complaint in relation to the audio recording, there was no "commitment" or obligation on the part of his Honour or the Court to obtain or issue a subpoena for the production of such a recording and the relevance of the audio recording is in any event moot. It appears from Ms Choi's Amended Summary of Argument that Ms Choi is seeking to establish that there was no re-litigation by her of the earlier NCAT application (relevant to the first of his Honour's reasons for refusing the extension of time) in circumstances where Senior Member McAteer had "determined" this to be the case at the case conference. It is difficult to see how any statements to that effect by Senior Member McAteer could be dispositive of that question and hence anything that was recorded of the case conference would not assist in determining whether the primary judge erred in concluding (as the first of his principal reasons for refusing the extension) that Ms Choi was doing little more than re-agitating a series of issues that had been comprehensively addressed by the Appeal Panel.
Thus, Appeal Ground 1 (if leave were to be granted) would fail.

[28]

Appeal Ground 2 - Natural justice was not offered

Ms Choi has raised various complaints as to the events on 21 July 2021: in summary, that the primary judge did not robe and did not wear a wig (which she contends was a breach of the Court Attire Policy); that there was a private hearing held in her absence (or that the primary judge had already started the hearing with the respondent in her absence); that the primary judge allowed his associate to email the respondent, without copying Ms Choi into the correspondence during the hearing; that the primary judge was making orders "while being instructed" by a third party (Ms Choi says the third party can only be Ms Kaban, who is alleged to have instructed the primary judge through Bluetooth); that there was a refusal to give audio recording files and written reasons for the orders; and that one ground on which she had consented to determine the matter on the papers conditionally was that his Honour said he had to go on leave and needed to hand the decision down by the end of 2021 but did not hand the judgment down until far later on 9 March 2022; and that the judgment "is not accountable". As noted, Ms Choi has contended that there was a difference between the official transcript of the oral hearing and her transcript (taken from the unauthorised sound recording).
Ms Choi says that: … at 10:15 AM, I entered the Virtual courtroom. Two men wearing a jacket with no tie had bee [sic] talking about a tortured history of the proceedings since 2018 and the CourtBook [sic]. The courtroom was filmed in a zoom-in and I could see only an [sic] portrait of Justice Bellew who did not robe with no wig. No opening remark. In short, there was a private hearing in my absence. Also, the Associate emailed the Respondent during the hearing. I requested the Associate to send me that email. However, the Chamber ignored my request . A huge difference between the official Transcript and my Transcript. (the big font and cross-out in the Transcript are different). His Honour was being instructed when giving the oral Judgment. I am curious if one man wearing a brown jacket with no tie was his Honour.
Ms Choi argues that wigs and robes are symbols of tradition and justice; and complains that the conduct of this matter "did not reach the Court's expectations and cheap enough to reject my request to provide a sound recording and a full-version transcript including reasons for orders".

[31]

Appeal Ground 3 - The three principal reasons

Ms Choi's complaint under this appeal ground is that the principal reasons given by the primary judge for his refusal to extend (for nine days) the time for filing her summons seeking leave to appeal were incorrect; and that a wrong principle in Shamieh trading as Consolidated Lawyers v Easy Buy International Pty Limited [2010] NSWSC 970 (Shamieh) per Hislop J was applied.
As to the first of the three reasons given by his Honour (i.e., that this was a re-agitation of a series of issues already comprehensively dismissed by the Appeal Panel), Ms Choi says that the Appeal Panel applied a wrong principle (in Champion Homes Pty Ltd v Guirgis [2013] NSWCATAP 54 (Champion Homes) and Collins v Urban [2014] NSWCATAP 17 (Collins) - those cases considering principles relevant to the grant of leave to appeal, and to which Bellew J had referred); and that his Honour wrongly outlined the Appeal Panel's reasoning (at [29]).
Ms Choi maintains that she was legally exercising her rights to review the decision; that the matter was simple; that Ms Chew (a solicitor in the Office of General Counsel at the Department) determined other agencies' items; and that there was no problem with the history of the proceeding (and NCAT "cut off this part from the audio recording file").
Ms Choi points to the statement in his Honour's reasons that the Appeal Panel had concluded that her case did not satisfy the principles in Champion Homes and Collins; but Ms Choi says that the Appeal Panel concluded that her case did not "remotely approach any of the principles" (citing the Appeal Panel's decision at [86]). In this regard, Ms Choi appears to see an inconsistency between a statement that her case did not "remotely approach" any of the relevant principles and the statement that her case did not satisfy those principles. If that be her complaint, then it is a pure question of semantics - a case that did not remotely approach the relevant principles must logically be one that did not satisfy those principles. In any event, Ms Choi says that she did not have to "approach" any of the principles; rather, that she just complied with Senior Member McAteer's order dated 11 February 2020 for an extension of time.
Ms Choi says that the finding that "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" (at [29]) comes from the "private hearing" on 21 July 2021 with Mr Cahill in her absence and is contrary to natural justice. In this regard, Ms Choi refers to the statement recorded on the transcript as having been made by his Honour that "[t]his is clearly a matter which has a long and some might say tortured history". That has been referred to above.
Ms Choi thus maintains that the first of the three principal reasons "is a result from wrongly applied principles, procedural irregularities and unfairness".
As to the second reason (lack of a satisfactory explanation for the delay), Ms Choi says that it is unclear whether her four reasons were rejected due to "no oath" or due to no adequate explanation or due to the litigation experience referred to in the judgment. Ms Choi says that she "filed four reasonable grounds on oath" (referring to her affidavits of 31 March 2021 and 11 June 2021) (however, it is unclear from those affidavits what the "four reasonable grounds" explaining the delay indeed are, rather the affidavits are directed towards the merit of the appeal). Ms Choi further says that Bellew J erred in law not by raising an issue as to the lack of an oath before determining the matter on the papers. Ms Choi also cavils with the observation by his Honour that she was an "experienced litigant", saying that this has been shown to be erroneous by her inability to find the "venue" (presumably, meaning forum) in which to lodge the summons. Ms Choi says that she is "not an experienced litigant with appeals from non-judicial Member to the Supreme Court"; that she is "new with appeal from non-judicial Member's decision[s]"; and that an irrelevant consideration was here taken into account.
Ms Choi maintains that a nine-day delay in filing the summons was not unreasonable in her circumstances, here pointing to her circumstances (a single mother in circumstances of the COVID-19 pandemic) (and referring to the decision of Macfarlan JA, RA Hulme and Wright JJ who extended time having regard to evidence of the COVID-19 pandemic in GAR v R [2021] NSWCCA 265).
Ms Choi also complains that his Honour did not provide adequate reasons for the conclusion as to delay (merely relating to the issue of the oath "or his Honour's belief that I should have lodged summon [sic] within the time despite the organ broker's threat [sic] caused by the Supreme Court of New South Wales").
Ms Choi says that the principles in Pell v Hodges [2007] NSWCA 234 (Pell) at [30] per Handley AJA (with whom Tobias and Basten JJA agreed) and Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA (Lachlan) 130 at [29] per the Court (Bathurst CJ, Beazley P (as Her Excellency then was) and McColl JA) "would be relevant"; and she maintains that the respondent would not suffer even though a nine-day extension of time be granted whereas she would suffer if the extension was not granted (since she must amend the wrong information kept by the public agencies before she returns to Australia). Ms Choi emphasises that the Court "must seek to act in accordance with the dictates of justice".
As to the third of the reasons given by his Honour (relating to prospects of success), Ms Choi asserts that there is a prospect of success "if a fair-minded judge deals with the matter" (again saying that at the case conference on 11 February 2020, Senior Member McAteer had already determined that her GIPA Act review application was not a re-litigation of the processing charge application). Ms Choi says that the first NCAT hearing sought the revocation of the processing charge of $155, whereas the relief sought in the second NCAT hearing was for the release of the 100 pages and removal of the redactions. Thus, Ms Choi argues that the nature of the two proceedings is different. (As noted earlier, however, the first application also related to a complaint as to the documents not released to Ms Choi, therefore the distinction here drawn by Ms Choi is more apparent than real.)
Ms Choi maintains that she could only consider any administrative review application after receipt on 5 December 2019 of the information that arose from the decision of 4 July 2019; and so an extension of time under s 41 of the CAT Act should be granted. Further, Ms Choi maintains that the respondent implicitly consented to extend the time to review to 13 January 2020 by, in its notification of 4 July 2019, seeking payment of the charges by 13 January 2020.
Ms Choi complains that the Appeal Panel did not explain why the 2020 application was a re-litigation of the 2019 proceeding; that NCAT found the decision was a reviewable processing charge decision under s 80(j) as well as 80(c) of the GIPA Act; and therefore it should be said that NCAT concluded that the 2020 application was not a re-litigation of the 2019 application; and that the issue is about delegation (that the decisions made by the solicitors not by administrators are invalid and that the legal representatives under the General Counsel are not entitled to represent the respondents (the Department, Victim Services and the Attorney-General).

[32]

Respondent's submissions as to the above complaints

As to the principal reasons articulated by Bellew J for declining to grant an extension of time in which to file the summons seeking leave, the respondent contends that Ms Choi is an experienced litigant (pointing to the fact that she has, since 2017, commenced approximately 30 sets of proceedings against (among others) the NSW Ombudsman, the Legal Aid Commission of NSW, the Commissioner of NSW Police and the University of Technology, Sydney before the Tribunal, in the Supreme Court and in the High Court) (annexing a list of those proceedings to the respondent's submissions) and reiterates its position that this was simply a proposed re-litigation of matters previously disputed.
The respondent submits that his Honour applied the correct principles in determining whether to extend time at [27] of his reasons (referring to those in Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232 (Currabubula Holdings) at [87] per Einstein J, cited by Hislop J in Shamieh at [13]) and that there was no error disclosed in his Honour's reasons.
The respondent says that the cases referred to by Ms Choi (see above) have no relevance to whether time should be extended for the purpose of r 50.12(1)(c), noting that Pell concerned an application for an extension of time under r 1.12 of the UCPR to file a statement of claim; and that Lachlan concerned an application to extend time to comply with consent orders that were based on an underlying contract. The respondent argues that different considerations apply to whether to grant an extension of time in which an appeal can be instituted; noting that they include factors specific to an appeal, such as 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 an extension of time, the prospects of the appeal's success and any prejudice caused to the respondent by extending the time (reference being made to Currabubula Holdings per Einstein J at [47]).
Thus, the respondent says that there was no error of law by his Honour in the exercise of the discretion under r 50.12(1)(c) within the principles stated in House v The King.

[35]

Solicitor on the record

First, complaint is made as to the identification of the General Counsel as the solicitor on the record (heading 7 of the previous draft notice of appeal).
Ms Choi makes lengthy submissions as to the proposition that the respondent has never filed a proper "Notice of Representation" (or notice of appearance); and cavils with the Appeal Panel's finding at [31] of the Appeal Panel's decision that, at its highest, Ms Choi's submission was that there was some minor technical non-compliance by the respondent with directions but that this did not amount to a denial of procedural fairness. Ms Choi maintains her complaint as to the legal representation for the respondent in the relevant proceedings (and accuses the Attorney-General of thereby attempting to conceal breach by the Office of General Counsel of the GIPA Act). Complaint is made by Ms Choi as to the power of Ms Kaban to act as a legal representative at court for Mr Tidball; and maintains that Mr Cahill had no power to be a delegate of Ms Kaban. This is Ms Choi's jurisdictional argument, (i.e., whether the Office of the General Counsel had jurisdiction to represent the respondent) and whether there was power for the respondent to "delegate" the General Counsel to represent it (there being much complaint as to the lack of evidence of any instrument of delegation). Ms Choi also appears to perceive some form of conflict in the Reporting Services Branch being responsible for transcription and audio recording files and (she says) also being "supervised" by the Office of the General Counsel. As noted, much complaint is made that Mr Cahill is a delegate of Ms Kaban (the solicitor on the record). Ms Choi says that there is no instrument of authorisation from the Secretary; and that this is illegal.
Finally, Ms Choi also invokes the rule that, ordinarily, there should be only one solicitor on the record for a party (citing Konneh v New South Wales (No 2) [2013] NSWSC 390 at [77] per Garling J); unless leave were granted under the Supreme Court's inherent power (citing Elphick v Westfield Shopping Centre Management Company Pty Ltd (2011) 216 IR 41; [2011] NSWCA 356 at [5]-[10] per Young JA).
As to this complaint, the respondent notes that Ms Choi did not raise this issue before Bellew J but in any event the respondent says that there is no defect in the notice of appearance filed by the respondent on 9 March 2021.

[52]

Secretary's submissions

The Secretary argues that each of the grounds of review raised in Ms Choi's summons focusses on the 9 March and 22 March Decisions (even though the relief sought goes beyond those decisions and includes relief relating to the earlier decisions of the Appeal Panel and Senior Members Gracie and Ransome of NCAT).
It is noted that Ms Choi's summons alleges that Bellew J: reached a wrong conclusion in refusing Ms Choi an extension of time to file a summons seeking leave to appeal (see at [58] of the summons); identified "a wrong issue or a wrong question" and made a finding of fact not supported by evidence (see the sub-heading to [59] and [63] and [84]-[87] of the summons); made an error of law on the face of the record and relied on irrelevant materials (see at [66]-[72] and [79]-[83] of the summons); did not issue "proper reasons" (see at [75]-[78] of the summons); afforded Ms Choi "procedural unfairness" (see at [87]-[107] of the summons); did not take into account the material filed by Ms Choi on 30 March 2021 (see at [108]-[109] of the summons); and was unreasonable, committed "procedural irregularities" and demonstrated "apprehended bias" (see at [110]-[113] of the summons).
The Secretary contends that each of those grounds of review (leaving aside the direction for the "leave-only" hearing in the Appeal Proceeding, the complaint as to which is now otiose) arose from and (additionally or alternatively) relates to judicial decisions made by Bellew J. In that regard, the Secretary relies on authority in this Court for the proposition that there cannot be judicial review of the judicial decisions of a Supreme Court judge, citing Penson v Titan National Pty Ltd [2015] NSWCA 404, where Meagher, Gleeson and Simpson JJA said (at [8]-[10]): 8. Section 69 of the Supreme Court Act provides for a procedure that replaces the prerogative writs for which the common law provided. Those writs did not lie against a superior court: The Queen v The Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union [1953] HCA 60; 89 CLR 636. A judge of the Supreme Court has no power to direct an order in the nature of prohibition against another judge of the same Court: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 at [36]; Barton v Walker [1979] 2 NSWLR 740. Nor is there power to make an order in the nature of certiorari, as sought by Ms Penson in Order 5 of her application. Section 69 has not altered that position. The orders of judges of the Supreme Court, including of the Court of Appeal, are not amenable to review under s 69. Ms Penson's application in this respect is misconceived and should be dismissed. 9. Apparently in recognition of the absence of any power in this Court to review the judicial decisions of Ward and Leeming JJA, Ms Penson sought to characterise the judgments as administrative, rather than judicial. Even if this characterisation were correct, s 69 would not be available to permit review: R v Wright; Ex parte Waterside Workers' Federation of Australia [1955] HCA 35; 93 CLR 528 at 541; and see the commentary to s 69 in LexisNexis Butterworths, Ritchie's Uniform Civil Procedure NSW, vol 2, 2005. 10. In any event, the decisions are clearly judicial, the first being the refusal of leave to appeal. Such a decision involves, among other things, an evaluation of the prospects of success of the proposed appeal. The second decision, refusal of leave to reopen the earlier decision, also involved the exercise of a judicial function.
Even if the leave-only decision is in the exercise of an administrative function the Secretary says that the function is conferred on "the Court" as a whole, not a particular judicial officer; and the Secretary argues that the Court has no jurisdiction to cure a perceived administrative injustice, referring to the observation by Brennan J, as his Honour then was, in Attorney General (New South Wales) v Quin (1990) 170 CLR 1; [1990] HCA 21 (at 35-36) that: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
As to the second ground relied on by the Secretary, it is said that Ms Choi requires an extension of time in which to file her summons pursuant to r 59.10(2) of the UCPR, on the basis that her summons was filed on 13 June 2022 and therefore Ms Choi is late in filing an application for judicial review in respect of the various decisions referred to in her summons by a range of time from two years and three months to two days (the only matter in respect of which Ms Choi is not out of time being the impugned costs decision of Bellew J, which the Secretary maintains is not amenable to judicial review in any event).
The Secretary argues that there has been no explanation (and therefore there can have been no adequate explanation) as to why Ms Choi was not able to seek judicial review within the time prescribed by r 59.10(1) of the UCPR (particularly of the decisions of NCAT) and says that it should be inferred that there is no reason for the delay which could assist Ms Choi to resist the Secretary's application for dismissal (cf Ye v Chen [2021] NSWSC 1098 per Harrison AsJ at [45]).
The third ground relied upon by the Secretary for summary dismissal is the duplication of proceedings. The Secretary identifies the overlap between the issues in dispute in the Appeal Proceeding and those in the Judicial Review Proceeding, by reference to the summons filed in each proceeding, as follows: 1. review of the Secretary's decisions of 27 March 2019 and 4 July 2019 (order 3 in the summons in the Judicial Review Proceeding; orders 19 and 20 in the summons in the Appeal Proceeding); 2. order for the release of information to which Ms Choi was denied access (orders 4, 15, 16 and 17 in the summons in the Judicial Review Proceeding; orders 13 and 14 in the summons in the Appeal Proceeding); 3. orders sought to quash the decisions of Bellew J, the Appeal Panel and Senior Members Gracie and Ransome (orders 5, 13, 14, 32 and 34-46 in the summons in the Judicial Review Proceeding; orders 5, 23 and 28 and [116] in the summons in the Appeal Proceeding - and see [55] in the draft notice of appeal); 4. dispute as to General Counsel's right to appear and instruct legal representatives ([79], [80] and [115] and order 3 in the summons in the Judicial Review Proceeding; [48] in the draft notice of appeal in the Appeal Proceeding).
The Secretary refers to the decision of RA Hulme J in Whitehead v Nickells [2013] NSWSC 1446, where his Honour noted (at [5]) the principles set out by Johnson J in Hamzy v Commissioner of Corrective Services (NSW) (2011) 80 NSWLR 296; [2011] NSWSC 120 at 300 as to summary dismissal applications, those being that: 13. .. [A] very clear case is required before summary dismissal is granted and ... the power to make such an order should be sparingly employed: Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125 ("General Steel") at 129; Webster v Lampard [1993] HCA 57; 177 CLR 598 at 602-3. 14. The test is not whether the Plaintiff would probably fail in his action against the Defendants, it is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard at 602. Where the court is asked to summarily dismiss a plaintiff's case, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial and that an application to deprive him of that right will succeed only in the clearest of cases: Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 at 944. Usually, a party is not to be denied the opportunity to place his case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. For a summary dismissal application to succeed, a high degree of certainty is required about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; 201 CLR 552 at 575-6. 15. By bringing an application for summary dismissal, the Defendants undertake the burden of establishing that there is no triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11. The General Steel test remains the primary touchstone for such an application. The mere fact (if it be the case) that a plaintiff's prospects of success might be characterised as slim would not be enough to strike out a pleading: Esanda Finance Corporation Limited v Peat Marwick Hungerfords [1997] HCA 8; 188 CLR 241 at 271; Preston v Star City Pty Limited [1999] NSWSC 1273 at [31]. The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the Plaintiff a right to relief, or which, although weak, is properly debatable and has some apparent legitimate basis if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Limited at [37].
In summary, the Secretary's position is that the Judicial Review Proceeding should be dismissed as being frivolous or vexatious and (additionally or alternatively) an abuse of the Court's process: that there is a high degree of certainty that the proceedings must fail due to the significant difficulties in ascertaining Ms Choi's case; that the proceedings reflect a re-agitation of matters that have already been determined and because Ms Choi appears to seek judicial review of the decisions of a Supreme Court judge; that the summons was filed well out of time to seek judicial review of many of the decisions with which Ms Choi takes issue and has low prospects of satisfying the Court she should be granted an extension; and that there is a large amount of duplication between this proceeding and the Appeal Proceeding. The Secretary maintains that the continuance of this proceeding would be unjustifiably vexatious and oppressive for the reason that it seeks to litigate a case that has already been disposed of in earlier proceedings (cf Hammond v State of New South Wales [2015] NSWCA 304 at [29] per the Court (Emmett and Gleeson JJA)).

[53]

Ms Choi's submissions

In response to the Secretary's submissions on the summary dismissal application, Ms Choi contends that: first, there was a "fraudulent appearance" in the Judicial Review Proceeding and hence no notice of appearance under the UCPR has been filed (Ms Choi complaining as to the notice of appearance filed 24 June 2022 being filed for the named first respondent; a lack of any instrument of authorisation or delegation having been filed to demonstrate that Mr Tidball (the Secretary) was so authorised; that a name for the solicitor on the record is missing - and instead the notice of appearance simply provides that the solicitor on record is the "General Counsel" and that the General Counsel has no power to represent the first, second and third respondent; and complaint is made that Mr Cahill has no power to be a delegate of Ms Kaban); second, that there is no motion within the meaning of the UCPR (since it has a coversheet filed on-line headed "Written Submissions"; no filing fee was paid for a motion; and there are incorrect details as to the parties and their representatives; and, third, Ms Choi maintains that the affidavit filed in support of the motion is not reliable (and that Mr Cahill witnessed a liar)).
Ms Choi refers to the decision of this Court (Meagher, White and Brereton JJA) in which the Court exercised jurisdiction for judicial review of the Appeal Panel's decision in Choi v NSW Ombudsman.
Ms Choi accepts that there is a question as to whether the primary judge in the present case exercised a judicial function in making the orders and further note given orally on 21 July 2021 and in the 9 March 2022 and 22 March 2022 Decisions. However, Ms Choi's submission is that Bellew J exercised an administrative (not judicial) function in relation to the matters and that her case thus falls within the exception identified by Leeming JA in Singh v State of NSW; Singh v Lekhwar [2021] NSWCA 260 at [7], namely that : … it will be seen [from Penson v Titan] that the Court of Appeal constituted by three judges there stated that orders of judges of the Supreme Court are not amenable to review under s 69. It may be that there are exceptions to the universal proposition stated by the Court of Appeal, for example if a judge of the Supreme Court is exercising a function conferred upon him or her personally which is an administrative function.
Ms Choi advances the following reasons for the proposition that the primary judge was here exercising an administrative function: first, that the primary judge was not wearing a wig and a robe (rather, a light brown suit, a white shirt and no tie) and "did not introduce me to the name etc" (thus contending that Bellew J "chose to act like an administrator"); second, that his Honour determined the matter in accordance with the "further note" dated 21 July 2021 given orally during the vacated hearing (Ms Choi contending that complying with the orders does not give a judge a judicial function to determine the matter on the papers); and that Bellew J determined the matter on the papers by complying with the "further note"; third, that Bellew J vacated the 21 July 2021 hearing but then relied on the communications exchanged during the vacated hearing; fourth, Ms Choi asserts that his Honour altered the oral orders "as if a junior administrator acted" then rejected her application for the reasons for the oral orders, sound recording and a full-version of the transcript without giving reasons; and "manipulated a transcript against my interest and put down made-up words in the Judgement; and gave the oral orders being instructed by a third party through a Bluetooth"; and, finally, Ms Choi asserts that his Honour "directly cheated" her by committing to rely on an audio sound recording which Ms Choi would file but not issuing a subpoena. As to the last, Ms Choi complains that Ms Kaban, who she describes as the Director of the Reporting Services Branch for NCAT and the Supreme Court, refused to provide her with an audio sound recording of the case conference by Senior Member McAteer on 11 February 2020.
Thus, Ms Choi submits that Bellew J (despite having a judicial function conferred on him) did not exercise a judicial function but determined the matter by exercising an administrative function. Alternatively, Ms Choi submits that his Honour "might have exercised 70% of administrative functions and 30% judicial functions".
Ms Choi maintains that her claims for judicial review are arguable and therefore says that her summons is not frivolous or vexatious and that serious injustice would result if the summons seeking judicial review were to be dismissed (complaining that over $8,000 of legal costs were imposed on a widowed single mother with a ten year old son; that "[n]one of the opportunities to give materials was offered"; and that she was excluded).
In her written submissions Ms Choi then sets out in some detail (which is not here reproduced) her complaints as to the failure of the agencies to respond to her GIPA Act access application (rather that it was Ms Chew, a solicitor at the Office of the General Counsel, that made a "not-held" decision on behalf of Victims Services and on behalf of the Attorney-General of New South Wales) and her contention that the Department (or the Secretary) does not have jurisdiction to determine the Victim Services access application without an Instrument of Authorisation or Delegation, Ms Choi contending that Victim Services is a separate public agency under the GIPA Act governed by the Government Sector Employment Act 2013 (NSW).
For the reasons set out in her submissions, Ms Choi contends that Victim Services has the power to handle GIPA Act applications and that it should do so (independent from Ms Kaban's control).
Ms Choi also makes complaint as to the making by solicitors of administrative decisions, saying that their roles are administrative duty; and makes a number of submissions as to administration within the government (including as to the proliferation of party names - such as Department of Communities and Justice or DCJ or Secretary, Department of Communities and Justice or The Secretary, Department of Communities and Justice).

[54]

Determination

As to the first of the grounds raised by the Secretary, while it has been recognised that there is no bright line distinction between judicial power and executive or administrative power, and indeed that line can be very blurred (see McHugh J at 57 in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64; Palmer v Ayers (2017) 259 CLR 478; [2017] HCA 5), judicial power inherently involves the ascertainment, declaration and enforcement of rights and liabilities of the parties as they exist or are deemed to exist (see Waterside Workers' Federation (Aust) v JW Alexander Ltd (1918) 25 CLR 434; [1918] HCA 56). It involves the determination of controversies between subjects, and between the State and its subjects (Huddart Pty Ltd, Parker and Co v Moorehead (1909) 8 CLR 330; [1909] HCA 36).
Judicial power involves a "decision settling for the future, as between defined persons or classes of persons, a question as to the existence of rights or obligations, so that an exercise of the power creates a new charter by reference to which that question is in the future to be decided as between those persons or classes of person" (see R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; [1970] HCA 8).
The nature of executive power or administrative functions on the other hand is perhaps less amenable to definition than "judicial power", except, perhaps, by framing it negatively as that power, or those functions, which are neither judicial nor legislative in nature. Thus, the issuing of a search warrant, for example, has never been conceived of as an exercise of judicial power but, rather, as an administrative function (see, for example, R v Turner; Ex parte Marine Board of Hobart (1927) 39 CLR 411; [1927] HCA 15 at 442, 450).
What is clear, however, is that one looks to the nature and character of the function that is exercised in order to characterise it as either judicial or administrative: it is undoubtedly a matter of substance rather than form (or, as here suggested by Ms Choi, attire). Thus, whether or not the primary judge was wearing a wig says nothing about whether he was exercising judicial power. (Indeed, as may become apparent if Ms Choi pursues her foreshadowed application for special leave to the High Court, the judges of our ultimate appellate court do not wear wigs; but it would surely not be suggested that in hearing appeals and determining litigious controversies in the High Court without wearing wigs their Honours were exercising administrative rather than judicial functions.) Similarly, what colour suit the primary judge may have worn (Ms Choi expressing the opinion that judges wear black) or whether his Honour was wearing a tie, says nothing about the functions there being exercised.
The submissions made by the Secretary are well-founded. There is no power for this Court to exercise judicial review of the impugned decisions of its own judges; and therefore whether or not the judicial review application duplicates the summons for leave to appeal (and it clearly does) the application is untenable and Ms Choi's summons for judicial review should be dismissed as untenable and an abuse of process.

[56]

Teoh direction

Finally, at the hearing on 28 July 2022, submissions were sought from the parties as to the making of a direction of the kind made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324 (Teoh v Hunters Hill Council), wherein Handley AJA (with whom Allsop P, as the Chief Justice of the Federal Court then was, and Beazley JA, as Her Excellency then was, agreed) made the following direction: The Registrar is directed, should the applicant file a further motion seeking, in substance, leave to appeal from the judgment of Sheahan J of 31 July 2009 in Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432 to promptly vacate the return date, notify the parties, and refer the papers to a judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mrs Teoh should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.
The respondent embraced the making of such a direction. Ms Choi did not address it in terms (but that may be because Ms Choi was not focussed on the enquiry that had there been made).
It is no small thing for this Court to impose a requirement that Ms Choi obtain leave before proceeding with any further motion based on the matters she has to date litigated in more than 30 proceedings in the past few years. Restricting a person's right to access the courts is an extreme interference with a basic right. However, there can be no dispute as to the existence of such power (Teoh v Hunters Hill Council; Hassan v Sydney Local Health District (No 5) [2021] NSWCA 197 and see Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital [2021] HCASL 230 and Samootin v Shea [2013] NSWCA 312. It is clear that the Vexatious Proceedings Act 2008 (NSW) does not displace this Court's inherent power to make such an order, because that is what s 7 provides. It is also clear that there is power to make orders appropriately adapted to the circumstances of the case; see for example Ghosh v Miller (No 2) [2018] NSWCA 212.
The features which make this a clear case for making such an order are the quantity of proceedings commenced by Ms Choi, the disproportionality between the number of those proceedings and the matters in issue, the thousands of pages of material which regularly accompanies them (to none of which was this Court taken on the present applications) and the seriousness of the allegations made in circumstances where, if they were made by a legal practitioner, there would be a clear breach of the applicable professional rules. Among other things, Ms Choi has made allegations that: the Supreme Court issued a "fraudulent official transcript" of the hearing before Bellew J on 21 July 2021; there has been manipulation and/or removal by the Registry of part of the White Folder; the primary judge is in contempt; there has been a breach of the Privacy and Personal Information Protection Act 1998 (NSW) by the Registrar who provided assistance to Ms Choi by drafting a notice of change of address for service; and the primary judge has made orders under instructions from a third party. It is clear that Ms Choi has no compunction in making very serious allegations of fraud and corruption against any number of persons involved in the proceedings (without the necessary detail required to make such serious allegations).
Moreover, following the hearing, Ms Choi has continued to inundate chambers with email correspondence making serious allegations against parties to the proceedings and inappropriate requests of the Court and the other parties. This has the inevitable result that Court time has been occupied in dealing with the matters and the respondents' time and costs have been expended in responding to them.
In addition, there is the absence of any place of address in New South Wales at which Ms Choi may be served, and against which, if necessary, execution can be levied. We do not express a view as to whether there has been conduct which amounts to either or both of a serious contempt of court and a serious breach of the Court Security Act by what has been published on YouTube, but the potential criminality as well as the practical difficulties in enforcing the costs orders that regularly accompany Ms Choi's unsuccessful applications make the absence of the local address required by UCPR r 4.5 more than a merely technical breach.
In short, all persons enjoy an important right to invoke the jurisdiction of this Court. However, that right comes with concomitant responsibilities, and it must not be thought that this Court is powerless to prevent its processes from being abused. It is appropriate in those circumstances and having regard to case management principles and the overriding purpose mandated by s 56 of the Civil Procedure Act to make such a direction in the present case.
As to costs, there is no reason that costs should not follow the event.

Parties

Applicant/Plaintiff:

Choi

Respondent/Defendant:

Secretary, Department of Communities and Justice

Legislation Cited (9)

Civil and Administrative Tribunal Act 2013(NSW)

Civil Procedure Act 2005(NSW)

Civil Procedure Regulation 2017(NSW)

Court Security Act 2005(NSW)

Government Information (Public Access) Act 2009(NSW)

Government Sector Employment Act 2013(NSW)

Privacy and Personal Information Protection Act 1998(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Vexatious Proceedings Act 2008(NSW)

Cases Cited (92)

rnment Insurance Office (NSW) (1997) 48 NSWLR 430 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Champion Homes Pty Ltd v Guirgis [2013] NSWCATAP 54 Chandrasekaran v Navaratnem [2021] NSWSC 1446 Choi v NSW Department of Justice [2019] NSWCATAD 248 Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68 Choi v Secretary, Department of Communities and Justice (No 2) [2022] NSWSC 301 Choi v Secretary, Department of Communities and Justice [2020] NSWCATAD 154 Choi v Secretary, Department of Communities and Justice [2021] NSWCATAP 8 Choi v Secretary, Department of Communities and Justice [2022] NSWSC 190 Choi v Secretary, Department of Justice and Communities [2022] NSWCA 172 Choi v University of Technology Sydney (No 2) [2020] NSWCA 342 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64 Clarke v State of New South Wales [2015] NSWCA 27 Coffs Harbour City Council v Noubia Pty Ltd [2022] NSWCA 32 Coles v Burke (1987) 10 NSWLR 429 Collier v Lancer (No 2) [2013] NSWCA 186 Collins v Urban [2014] NSWCATAP 17 Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232 Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Elphick v Westfield Shopping Centre Management Company Pty Ltd (2011) 216 IR 41; [2011] NSWCA 356 Fitness First Australia Pty Ltd v Dubow (2011) 251 FLR 241; [2011] NSWSC 351 Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30 GAR v R [2021] NSWCCA 265 Ghosh v Miller (No 2) [2018] NSWCA 212 Gibson v Drumm [2016] NSWCA 206 Hammond v State of New South Wales [2015] NSWCA 304 Hamzy v Commissioner of Corrective Services (NSW) (2011) 80 NSWLR 296; [2011] NSWSC 120 Hassan v Sydney Local Health District (No 5) [2021] NSWCA 197 Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital [2021] HCASL 230 House v The King (1936) 55 CLR 499; [1936] HCA 40 Huddart, Parker and Co v Moorehead (1909) 8 CLR 330; [1909] HCA 36 Konneh v New South Wales (No 2) [2013] NSWSC 390 Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130 Micallef v ICl Australia Operations Pty Ltd [2001] NSWCA 274 Moran v Armidale Local Aboriginal Lands Council [2019] NSWCA 220 Palmer v Ayers (2017) 259 CLR 478; [2017] HCA 5 Pell v Hodges [2007] NSWCA 234 Penson v Titan National Pty Ltd [2015] NSWCA 404 Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; [1970] HCA 8 R v Turner; Ex parte Marine Board of Hobart (1927) 39 CLR 411; [1927] HCA 15 Samootin v Shea [2013] NSWCA 312 Shamieh trading as Consolidated Lawyers v Easy Buy International Pty Limited [2010] NSWSC 970 Singh v State of NSW; Singh v Lekhwar [2021] NSWCA 260 Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Waterside Workers' Federation (Aust) v JW Alexander Ltd (1918) 25 CLR 434; [1918] HCA 56 Whitehead v Nickells [2013] NSWSC 1446 Ye v Chen [2021] NSWSC 1098 Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2019] NSWCA 187 Texts Cited: B Debelle, "Judicial Independence and the Rule of Law", (2001) 75(9) Australian Law Journal 556 Category: Procedural rulings Parties: Jae Hee Choi (Applicant) Secretary, Department of Communities and Justice (Respondent) Representation: Counsel: JH Choi (Applicant in person) J Cahill (Solicitor, Respondent)

Cited By (10)

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