[2013] HCA 26
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190
[2009] NSWCA 387
Smith v New South Wales Bar Association (1992) 176 CLR 256
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 26
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190[2009] NSWCA 387
Smith v New South Wales Bar Association (1992) 176 CLR 256
Judgment (6 paragraphs)
[1]
[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.]
[2]
JUDGMENT
WARD P: On 1 September 2022, this Court published reasons (Choi v Secretary, Department of Justice and Communities [2022] NSWCA 170) for its decision to dismiss various applications brought by Ms Choi (a summons seeking leave to appeal from the decisions of Bellew J of 9 March 2022 and 22 March 2022, respectively; a summons seeking judicial review of the same decisions of Bellew J; and a notice of motion that had also been filed by Ms Choi seeking a variety of relief).
Since then, Ms Choi has filed a notice of motion dated 13 September 2022 (stamped as e-filed on 13 October 2022) seeking a raft of relief, much of which relates to the formal details appearing on the coversheet of the judgment but also seeking to revoke the orders made dismissing the respective summonses, together with an application for costs on the indemnity basis. The notice of motion invokes rules 36.11, 36.15, 36.16, 36.17 and 36.18 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Ms Choi filed an affidavit affirmed by her on 13 September 2022 (but once again stamped as e-filed on 13 October 2022) in support of the relief sought.
Directions were made by the Registrar. Relevantly, on 20 October 2022, the Registrar directed Ms Choi to file and serve her submissions by 3 November 2022, indicating that the Court proposed to deal with the motion on the papers (the directions providing that if the applicant sought an oral hearing the applicant was to address in her written submissions why the Court ought to permit an oral hearing); on 21 October 2022, those directions were amended to specify a page limit for the written submissions of no more than five pages; and on 7 November 2022 directions were made that an amended motion and submissions be filed and served by 28 November 2022 and that if the applicant did not file and serve her submissions by that date she shall not be permitted to rely upon any submissions in the motion without the leave of the Court.
Ms Choi did not file any amended notice of motion or submissions by 28 November 2022. However, Ms Choi subsequently provided the Court with submissions dated 5 December 2022 on the final page, and 6 December 2022 in the footer of that document, together with an affidavit affirmed on 5 December 2022 (although I note that it is dated 13 September 2022 elsewhere in the document) and attaching an amended notice of motion signed on 28 November 2022. Although leave for the filing of the amended notice of motion has not been given it is appropriate to consider it as the most recent iteration of the relief that Ms Choi seeks.
The amended notice of motion again seeks a raft of relief (invoking the same rules as the original notice of motion) seeking amendments to the coversheet (including as to the names of the parties, the names of counsel and solicitors representing the parties; and other procedural information). The proposed orders include an order to amend the name appearing on the coversheet of the reasons of the presiding judge (from Ward P to President Ward) and to remove the names of Meagher and Leeming JJA.
Relevantly, Ms Choi seeks orders revoking the orders made by this Court on 1 September 2022; for a re-hearing and determination of the matter by three judges pursuant to ss 45A(6) and 46B(5) of the Supreme Court Act 1970 (NSW); for there to be two separate judgments (in relation to the respective proceedings 2022/00170633 and 2022/00123488); for orders and reasons in response to the issues raised in the Contempt Motion and 27 July Notice of Motion; orders "to handle" the 24 July Notice of Motion and (in 2022/00170633) the 27 July 2022 Notice of Motion; an order to "list a hearing"; an order "to handle" Ms Choi's notice of motion in 2022/00123488 with this notice of motion; and various other orders. Indemnity costs are again sought. (The subject matter of the notices of motion in respect of which relief is here sought is described in the principal judgment, namely [2022] NSWCA 170.)
[3]
Background
The background to the present application is set out in some detail in the principal judgment and will not be here repeated unless necessary.
In summary, in her submissions, Ms Choi makes broad ranging allegations of corruption by various members of the Court and registry staff (the assertion being that this was to save the Attorney-General and the solicitor on the record from criminal punishment for "stealing" a sum of money - seemingly, a reference to a garnishee order to which Ms Choi refers in her affidavit, affirmed in support of the applications, bearing the date 13 September 2022 but also, on the coversheet, 5 December 2022); as well as allegations against other individuals.
Ms Choi seeks to set aside the judgments and orders made in the Judicial Review Proceeding (2022/00170633) and Appeal Proceeding (2022/00123488) on the basis that the judgments and orders were given, entered or made irregularly, illegally or against good faith (invoking r 36.15(1) of the UCPR). In that regard, Ms Choi says that she relies on the principles in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387(Heperu) at [16] and [20]-[49] per the Court (Allsop P (as his Honour then was) Campbell JA and Handley AJA); Arnold v Forsythe [2012] NSWCA 18 and Violi v Commonwealth Bank of Australia [2015] NSWCA 152 (in relation to judgments set aside because the judgment was given or entered irregularly); and Ms Choi refers also to the setting aside of the judgment in Chand v Zurich Australian Insurance Ltd [2013] NSWSC 102 as it was entered against good faith.
In her submissions, under the heading "Decision1, Decision 2 and Decision 3 from Judgment1 should be removed", Ms Choi contends that what she describes as "Decision1, Decision 2 and Decision 3" from "Judgment1" were made "only" by the presiding judge (i.e., me) "before the hearing" and were given, entered irregularly, illegally or against good faith in the meaning of r 36.15(1) of the UCPR. The reference to those three decisions appears to be a reference to the dismissal of the Judicial Review Proceeding; the dismissal of the application for leave to appeal in the Appeal Proceeding; and the dismissal of the notice of motion dated 21 June 2022 dealt with in the principal judgment ([2022] NSWCA 170).
The contention that the decisions were made before the hearing and only by me appears to be based on an incorrect entry by the Principal Registrar in JusticeLink which recorded the orders entered on 1 September 2022 as having been made on 18 July 2022 (i.e., prior to the hearing on 28 July 2022). That was clearly a typographical error. No orders were made on 18 July 2022. The date on which the orders were made is that recorded in the published judgment ([2022] NSWCA 170) and entered on that day (1 September 2022). Each member of the Court here affirms that the orders were made on 1 September 2022 (not 18 July 2022) and that each concurred with the decision to make those orders for the reasons published on that date (see the separate judgments of Meagher JA and Leeming JA below).
Under the heading "Parties and Case Name should be set aside", Ms Choi next contends that the party and case names recorded in both the principal judgment and the judgment she refers to as Judgment2 (Choi v Secretary, Department of Justice and Communities [2022] NSWCA 172) should be set aside.
Ms Choi contends that illegality is here involved. The complaint made is that the Judicial Review Proceeding (2022/00170633) was recorded as the Appeal Proceeding and that, by so doing, this Court did not have to record the Tribunal and Supreme Court of New South Wales as the "inactive respondents". Complaint is also (again) made as to removal of party names (including "Victims Services trading as State Government Entity trading as State Government ABN 64782244502") "despite no order by the court". Ms Choi contends that this is a breach of r 6.29 of the UCPR (which empowers the Court to remove a person who has been unnecessarily joined, or who has ceased to be a necessary party, to proceedings) and s 2(2) of the Electronic Transactions Act 2000 (NSW) (it may be noted that s 2 of that Act is the commencement provision - it may be that Ms Choi is here referring to cl 2(2) of Sch 1). Lengthy complaint is made as to the manner in which the party names were entered or described in the principal judgment.
These various complaints appear to revisit issues raised and determined in the principal judgment (such as the correct party names and Ms Choi's assertion that Bellew J exercised administrative functions and that there was thus power for judicial review of the decisions of Bellew J). This is in substance an impermissible attempt to challenge the findings and conclusions in the principal judgment.
Third, under the heading "On the face of the records", Ms Choi again raises complaints as to the correct name of parties (including in the medium neutral citation for the principal judgment) and as to the identification on the coversheet of the solicitor representing the respondent at the hearing (again revisiting issues already determined by the Court) and as to the description in the coversheet of what Ms Choi refers to as "Judgment2") (my separate judgment in relation to Ms Choi's disqualification application [2022] NSWCA 172). I accept that there is an error in the description of the Department in the medium neutral citation of the respective decisions (the correct reference being to the Department of Communities and Justice). That error will be corrected under the slip rule but nothing turns on this for present purposes (and it may be noted that the Department is correctly identified in the description of the parties to those proceedings). Complaint is also made that no orders were made to dismiss the disqualification application during the hearing (although it should be noted that the transcript reveals that I dismissed that application at the time and indicated that I would provide reasons for so doing in due course - see T 7.23-36).
The requested amendment of "Ward P" to "President Ward" on the coversheet for the principal judgment is inconsistent with the practice in this Court for the production of documents, where the identifier "P" is used to describe the President of the Court of Appeal. In any event, this complaint (as are other complaints as to the judgment coversheet and the structure of the principal judgment) is misconceived. The coversheet forms no part of the dispositive reasons; and the structure of the reasons themselves is a matter for the Court. The judgment, as made clear in its terms, is a judgment of the Court as constituted by the three named judicial officers.
Finally, complaint is made as to a breach of privacy by the reference to certain persons in the reasons without consent (these being persons named in Ms Choi's own documents as persons in respect of whom McKenzie Friend orders were to be sought). There is no basis for this complaint; nor does anything turn on the (correct) recitation in the principal judgment of the erroneous spelling in Ms Choi's own documents of the name of one of those persons.
Under the heading "Deficient Judgment/orders" various complaints are made as to aspects of the principal judgment: the reference in order 1 to dismissal of the summons there described in the Appeal Proceeding (apparently on the basis that when the Judicial Review Proceeding was commenced it was incorrectly listed and given proceeding number 2022/00115722 (see [14]-[15] of the principal judgment); that order 2 (dismissal of the summons in the Judicial Review Proceeding) does not make sense; that, as to order 3, there was no discussion of the 21 June 2022 motion at the hearing; that the direction in order 4 was unreasonable; and that order 5 is unethical and illegal. As to the complaint as to lack of clarity of the orders made, the reasons make clear the basis for those orders and their intended operation. Complaint as to the unreasonableness of the directions or orders goes to the merits of the decision. There is no eludication of the alleged illegality.
Complaint is also made that the Court did not properly deal with various of the notices of motion that Ms Choi had sent to the Registry (see the principal judgment for the description of those orders). The reasons why certain of the unfiled notices of motion were not acted upon is made clear in the principal judgment.
In the "[c]onclusions" section of the submissions, Ms Choi maintains that the judgments that she here impugns "resulted from Secretary's keeping changing identities between Mr Tidball and (an authorised representative) Secretary of Department"; and that the respondent's notice of motion (this seemingly being a reference to the respondent's application for summary dismissal of the judicial review summons) was wrongly filed and should itself have been rejected (and in that sense "the whole Judgments and orders should be set aside"). This focuses on procedural matters relating to the filing of the respective applications and does not raise any irregularity or the like in relation to the entry of the judgments and orders.
In Ms Choi's affidavit of 13 September 2022, complaint is also made as to the determination of lack of jurisdiction for judicial review of Bellew J's decisions (a matter dealt with in the principal judgment) and Ms Choi speculates as to the observation made by Leeming JA during the course of argument on 28 July 2022 as to jurisdiction to deal with the applications then before the Court. There is no basis for the speculation raised by Ms Choi having regard to what was said at T 24.1-23, namely, Leeming JA's statement that there was no doubt that the Court had jurisdiction to determine the outcome of Ms Choi's summons and no doubt as to Ms Choi's right to put forward submissions as to why the respondent says that there is no jurisdiction for Ms Choi to seek judicial review of Bellew J's orders. There is a distinction between jurisdiction to hear an application (here, the respondent's application for summary dismissal of Ms Choi's summons in the Judicial Review Proceeding) and jurisdiction (which this Court does not have) to entertain judicial review of the decision of a Supreme Court judge exercising judicial functions (as explained in the principal judgment). (See also Leeming JA's judgment below.)
Various other complaints are made in Ms Choi's affidavit of 13 September 2022 of bad faith in the hearing of the applications on 28 July 2022. None goes to the circumstances of entry of the judgment and orders in question (so, for example, the complaints that there was error in the date on which Ms Choi filed her disqualification application and that Ms Choi's application to appoint a McKenzie Friend was ignored).
[4]
Determination
It must be borne in mind that, although various provisions of the UCPR are referred to in the amended notice of motion, the application here made by Ms Choi is put on the basis that the judgment and orders were given, entered or made irregularly, illegally or against good faith (r 36.15(1) of the UCPR). This is not an appeal as to perceived errors made in, or merits of, the respective decisions (and, indeed, any application for leave to appeal from the decisions made in the principal judgment lies elsewhere than to this Court). Although Ms Choi expressly relies on the principles in Heperu at [16], including reference to the fact that on such an application the focus is on an irregularity in the giving, making or entry of judgment or orders, the complaints made in her submissions largely focus instead on matters concerning: the nomenclature of parties and the case name, perceived irregularity in the manner in which the various applications were filed or recorded in the Registry, the structure of the reasons (such as whether there should have been one judgment or two) and the conclusion that was reached in the principal judgment (and disqualification judgment). Those complaints do not properly invoke the jurisdiction under r 36.15 of the UCPR and do not warrant further exposition.
The concept of irregularity includes a contravention or non-compliance with specific provisions governing the making or entry of a judgment or order (which is not the case here); or where (see AV Ritchie, Ritchie's Uniform Civil Procedure New South Wales (LexisNexis Butterworths) (Ritchie's) at [26.15.12]) the judgment is excessive in the sense that it is entered for more than is due or in reliance on an ambiguous admission or contrary to an agreement between the parties (see the commentary in Ritchie's at [36.15.10]). Irregularity does not extend to errors in the merits of the substantive decision or earlier procedural deficiencies (see Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181 at [121] per Garling J, where the judgment wrongly included the costs of a costs assessment). Further, the requirement for sufficient cause has been said to mean that exercise of the power to set aside a judgment or order is not appropriate where the irregularity is inconsequential or causally unrelated to the making of the judgment or order (see the authorities cited in Ritchie's at [36.15.18]).
As to the complaint of lack of good faith, it may be noted that judgments that have been set aside as contrary to good faith include, for example, default judgments signed contrary to an agreement between the parties and judgments contrary to a promissory representation or made for the purpose of defrauding creditors (see Ritchie's at [36.15.17]). The present case involves no such conduct or circumstances.
The setting aside of a judgment on the basis that it is obtained illegally (or by fraud) raises different issues than complaints as to irregularity or lack of good faith. The principles on such an application were considered by Kirby P, as his Honour then was, in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538-539. Such an application should be made in separate proceedings and there must be clear particularisation of the alleged fraud. Moreover, where, as here, allegations of corruption are made against a wide range of individuals (including registry staff as well as legal representatives who are themselves officers of the Court) it would not be appropriate to make findings without the provision of full particulars of the alleged dishonesty and without giving those parties an opportunity to be heard.
It is also relevant to note the importance placed on the finality of litigation (see Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 (at 394) per the Court; Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 at [6] per French CJ, Gummow and Hayne JJ; Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 at 265 per Brennan, Dawson, Toohey and Gaudron JJ, there in the context of applications to re-open and vary judgments).
Ms Choi may be dissatisfied with the outcome of the proceedings in this Court. However, the present application is not the appropriate way in which to seek to overturn any of the orders made. The contention that two of the members of the Court did not join in the judgment published as a judgment of the Court on 1 September 2022 is without foundation; as is the contention that orders were made prior to the delivery of judgment on 1 September 2022 (there being simply an error in the recording of the dates on which orders were entered in JusticeLink).
Finally, insofar as the amended notice of motion seeks an order to "list a hearing", it is unclear whether by this Ms Choi was seeking to have her present application dealt with in an oral hearing or for various of the notices of motion not dealt with in the principal judgment listed for a hearing. If it is the latter, that is a matter appropriately to be taken up with the Registrar; if it is the former, no submissions were put forward as to why there should be an oral hearing of the notice of motion e-filed on 13 October 2022 or its proposed amendment by the amended notice of motion forwarded with Ms Choi's 5 December 2022 submissions. It is appropriate to proceed on the papers on the present application. Ms Choi has had ample opportunity to make submissions in support of her application and it is not necessary to call on the respondent for submissions in response.
For the above reasons, Ms Choi's application should be dismissed with costs.
[5]
Order
I therefore propose the following order:
1. Dismiss with costs the applicant's notice of motion filed 13 October 2022, as sought to be amended by the amended notice of motion dated 28 November 2022 forwarded by the applicant with the applicant's submissions dated 5 December 2022.
MEAGHER JA: This notice of motion seeks various forms of relief in relation to a judgment of the Court constituted by Ward P, Leeming JA and me (Choi v Secretary, Department of Justice and Communities [2022] NSWCA 170). On 1 September 2022 the Court so constituted made various orders in relation to the three applications then brought by Ms Choi. As a member of the Court I agreed in the orders dismissing each of those applications and with the reasons for the making of those orders.
With respect to the notice of motion now before the Court, I have had the benefit of reading in draft the judgment of Ward P and agree with the order her Honour proposes and her reasons for the making of that order.
LEEMING JA: I participated in the judgment Choi v Secretary, Department of Justice and Communities [2022] NSWCA 170, resolving the applications brought by Ms Choi. Ms Choi's contention that I did not agree to the judgment is without foundation.
Ms Choi makes a separate submission based on an exchange in the transcript under the heading "Leeming JA said Court of Appeal has jurisdiction to deal with my Judicial Review summons during the hearing on 28 July 2022". Ms Choi writes that she was asserting that "this Court has power to handle my judicial review summons", that I interrupted her and assured her that the Court had jurisdiction to hear the matter.
The interchange to which Ms Choi refers is based on pages 23 and 24 of the transcript. Ms Choi is correct to observe that I interrupted her. Unfortunately, hearings conducted by audio-visual link are prone to instances where two people are speaking at the same time. The substantive point is captured in the following exchange:
"WARD P: No, I think there was--
APPLICANT: --Leeming JA said, right?
WARD P: --a bit of confusion there.
LEEMING JA: It's my fault and I apologise for interrupting you. But there's no doubt we have jurisdiction to determine the outcome of your summons, and there's no doubt that your right to put forward submissions about why the Secretary says there is no jurisdiction to seek judicial review of Justice Bellew's orders as opposed to appeal from Just[ice] Bellew's orders."
This Court's jurisdiction extends to hearing and determining the Secretary's submissions that this Court has no jurisdiction to entertain the merits of Ms Choi's summons. "[A]ll courts, whether superior or inferior, have the authority to decide whether a claim that is made in the court is within its jurisdiction. That power can be described as a court having jurisdiction to decide its own jurisdiction": New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [31]. Although it may readily be seen how this could cause confusion, that was the point I was making.
For that reason, and for the reasons given by Ward P which I have read in draft, Ms Choi's notice of motion should be dismissed with costs.
[6]
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