Choi v Secretary, Department of Communities and Justice

Court of Appeal (NSW)|2022-07-28|Before: Ward P, Gleeson CJ, Hayne JJ, Bell JJ

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Legal Principles

The relevant test, where there is an application for a judicial officer to disqualify himself or herself for apprehended bias is as to whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide. The application of this (double might) test requires two steps: first, identification of what it is said might lead the decision-maker to decide a question other than on the merits of that question; and, second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [16] per Gleeson CJ, McHugh, Gummow and Hayne JJ, as confirmed by the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson) at [31] per Gummow A-CJ, Hayne, Crennan and Bell JJ).
In Ebner, it was said (at [8]) that: The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
All the relevant circumstances of the particular case may be taken into account in applying the test, though only such knowledge of matters of legal or other specialist practice and process as can reasonably be attributed to the lay observer (including, perhaps, matters of which the observer would inform himself or herself before reasonably forming any firm apprehension) will be taken into account (Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 at 584-585 per Toohey J; Najjar v Haines (1991) 25 NSWLR 224 at 239-240 per Clarke JA).
The relevant standard of assessment was set out by Kirby J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [111] namely that: … It is enough to show that "in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it". … (Emphasis in original)
It is important also to bear in mind the caution that judges should not too readily accede to applications for disqualification for apprehended bias, since otherwise litigants may succeed in effectively influencing the choice of the judge in their own court (see (Spedley) at 417-418 per Kirby P, as his Honour then was, his Honour there referring to cases including Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 at 352 per Mason J, as the Chief Justice then was; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 at 276 per Priestley JA, with whom Hope and Glass JJA agreed, and Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 (Fitzgerald) at 49 per Samuels JA, with whom Mahoney and Meagher JJA agreed). In Spedley, Kirby P (as his Honour then was) said (at 418) that: Judges should perform the duties of their office which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness avoiding the relinquishment of their duties which will then necessarily fall to another judicial officer for whom the task may be no more congenial. Such relinquishment will also involve costs, delay and inconvenience to parties who are otherwise entitled to have the decision of the judicial officer appointed to their case [his Honour there referring to Re JRL; Ex parte CJL; Re Polites; Ex Parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 100 ALR 634].

Application for disqualification

Ms Choi's application that I disqualify myself "from the hearing and matter" appears as order 2 of the orders set out in her notice of motion dated 27 July 2022. The basis on which that application is made is that I made a decision that there should be a leave only hearing in matter 2022/00123488 (about which decision Ms Choi complains) at a time Ms Choi says was "even before" her Summary of Argument had been filed and before the respondent's reply to those arguments was filed (see at [13] of Ms Choi's affidavit affirmed 6 June 2022, in support of her notice of motion dated 6 June 2002 which was only formally accepted for filing on 21 June 2022).
Practice Note SC CA 1, issued on 13 December 2017, relevantly provides: CONCURRENT HEARING OF LEAVE APPLICATION AND APPEAL 4. The Court will determine whether to decide the question of leave at a separate hearing, or concurrently with the substantive appeal. 5. Each party should indicate in the summary of argument whether (and if so why) the matter is thought appropriate for a concurrent hearing: UCPR, r 51.12(4)(g). In particular, it should address the following matters: (1) the extent to which the argument on the application for leave is expected to canvas the merits of the appeal; (2) the extent to which the application for leave will require reference to materials which would be relevant to the appeal; (3) whether the appeal will involve an issue of public importance (4) any prejudice which may be suffered as a result of delay flowing from a separate leave application; and (5) any matter relevant to the reason why leave is required in the circumstances of the case.
Parties will be advised as to whether a summons for leave to appeal will proceed by way of a leave only hearing or will be heard concurrently with the appeal by the Registrar, usually at the first directions hearing. In her written submissions dated 6 June 2022, Ms Choi contends that the leave only direction (made by the Registrar at my direction on 10 May 2022) was "even before the proceedings initiated"; "even before [her] Notice of Appeal and White Folder were filed"; and "even before the Respondent received [her] summons" (see at [3] of Ms Choi's written submissions). Ms Choi complains that it was an unfair decision. Insofar as can be discerned from her affidavit and submissions, this appears to be on the basis of an assumption (or apprehension) that a leave only hearing might be likely to fail whereas a concurrent hearing might succeed.
Ms Choi has apparently made a complaint to the Judicial Commission about the making of the leave only direction and contended that this meant that I should not hear the matters that were before the Court on 28 July 2022.
Ms Choi's summons seeking leave to appeal from two decisions of Bellew J (in the Appeal Proceeding, being proceeding number 2022/123488) was listed for a first directions hearing before the Registrar on 9 May 2022; and the order for the leave only hearing was made by the Registrar following that directions hearing on 10 May 2022. Prior to that, as Ms Choi's affidavit and submissions made clear, Ms Choi had sent by email to the Registry her summons, draft notice of appeal and summary of argument and a fee waiver application.
Pursuant to r 4.10(5)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) an officer of the Court may refuse to accept a document for filing until the requisite filing fee is paid or satisfactory payment arrangements have been made. I note this because the making by Ms Choi of the fee waiver application, the consideration of that application, decision and the delay in payment of that part of the fee that was not postponed, explains the time that elapsed between the date of lodgment by email of Ms Choi's summons (6 April 2022) and draft documents and the date on which they were ultimately accepted for filing (20 April 2022). I also note that r 49.19(2) of the UCPR provides that an application for review may not be made in relation to a decision to make (or not to make) an order under cl 11(1) of the Civil Procedure Regulation 2017 (NSW) except as provided by cll 14 and 19 of the Guidelines for the Waiver, Review and Postponement of Fees (published by the Attorney-General).
Relevantly, therefore, at the time the leave only direction was made in May 2022, the Appeal Proceeding had (contrary to Ms Choi's assertion) been instituted; and Ms Choi's draft notice of appeal and Summary of Argument were available to the Court. Thus, before the Court was sufficient material of the kind that would ordinarily be taken into account when making such a decision (the respondent's response thereto was not filed - but there is no complaint from the respondent in that regard).
Subsequent to the making of the leave only direction, Ms Choi has forwarded to the Court by email a voluminous amount of material, some 4,500 pages of material in connection with the two proceedings listed before this Court on 28 July 2022 (the Appeal Proceeding and an application for summary dismissal made by the Secretary of the Department of Communities and Justice in relation to Ms Choi's separate proceeding seeking leave for judicial review of the same decisions of Bellew J). Those materials do not constitute the Summary of Argument for the purposes of the Practice Note to which Ms Choi has referred.

Reasons for refusal of application for disqualification

Applying the "double might" test in Ebner, I was (and remain) of the view that it is not the case that a fair minded lay observer might reasonably conclude that the fact that I had formed the opinion, and made the direction, that there should be a leave only hearing of Ms Choi's application for leave to appeal from the impugned decisions (after the summons seeking leave to appeal, draft notice of appeal and Summary of Argument had been lodged with the Court, and after the summons had been accepted for filing) at the time the first directions hearing at which such a direction would ordinarily be advised to the parties, might lead me ultimately to decide the leave application (after hearing argument and considering material subsequently filed in relation to the application) otherwise than impartially and on its merits. Nor does the fact that Ms Choi has apparently made a complaint about this direction to the Judicial Commission lead me to reach a different conclusion. That complaint will fall to be determined in the ordinary course. Again, it is not in my opinion that a fair minded lay observer might reasonably form the view that the making of a complaint about the leave only decision might lead me to decide Ms Choi's application for leave otherwise than impartially and on the merits.
While there is an understandable attraction, on an application such as this, simply to accede to the application and to leave the matter to be dealt with by another judicial officer, that is not consistent with my judicial duty (as emphasised in the observations of Kirby P, as his Honour then was, to which I have referred above).
For those reasons, I concluded on 28 July 2022 that the application for disqualification for apprehended bias should be dismissed and I proceeded with the matters for hearing on that day. In fact, as it transpired, as a bench of three judges had already been constituted to hear the application for summary dismissal of Ms Choi's judicial review application on that day; the Court was in a position to accede to Ms Choi's wish for there to be a concurrent hearing of her application for leave to appeal, and the appeal itself, and proceeded to do so. Thus, Ms Choi's argument on the leave application in the Appeal Proceeding was not limited to the usual 20 minute hearing; and Ms Choi's contentions as to the appeal she seeks leave to bring were fully canvassed.

Amendments 14 December 2022 - Amendment to MNC DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2022

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (6 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (17)

Cited By (3)