Choi v Secretary, Department of Communities and Justice

The proceedings before this Court

1. On 28 April 2021 Registrar Jones listed the matter for hearing on 21 July 2021, and in doing so made various case management orders including an order that the parties file a joint Court Book on or before 14 July 2021. The respondent provided a Court Book, although for reasons which are not the fault of the respondent, it had not been prepared jointly with the applicant.
2. On 20 and 21 July 2021, my Associate received approximately 25 emails from the applicant, in the course of which she complained (inter alia) that she had not received the respondent's Court Book. There were documents attached to a number of those emails which, as I understood it, were said to constitute (at least in part) the applicant's Court Book.
3. When the matter came before me for hearing on 21 July 2021, the applicant appeared self-represented via audio-visual link from Korea. At the commencement of the proceedings, she repeated the complaint made in the emails sent to my Associate that she had not received the respondent's Court Book. The solicitor for the respondent informed me, and I accept, that the Court Book had been sent to the applicant electronically on 14 July 2021.
4. At the same time, the respondent's solicitor informed me that he too had received a series of emails from the applicant in the period leading up to the hearing which, on his calculation, had attached approximately 3,300 pages of material. In circumstances where those emails had been sent by the applicant within 24 hours of the hearing date, the respondent's solicitor had obviously not had a proper opportunity to read the material which was attached to them.
5. 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: [2] 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.
6. 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: [3] 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.
7. 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.
8. Over the ensuing weeks, my Associate received further emails from the applicant. In total, the applicant's various emails attached approximately 3,000 pages of material which I have treated as the applicant's Court Book. Notwithstanding the orders that I had made, the applicant continued to correspond with my Associate into the latter part of 2021. She also sent emails to the Associates of the Chief Justice and the Chief Judge at Common Law regarding the proceedings, in the course of which she made allegations of impropriety on the part of various persons. All of those allegations are entirely extraneous to any issue I am required to determine.
9. It is against this background that I have come to determine the matter. In doing so, I have taken into account the material in the respondent's Court Book, as well as the material provided by the applicant.

The background to the dispute

1. The background to the dispute between the parties was helpfully summarised in the judgment of the Panel handed down on 18 January 2021 which I gratefully adopt: [4] [3] The dispute between the parties has a long and somewhat complicated history, which eventually led to the making of the decision under appeal, in paragraph [15] of these reasons. [4] The broad dispute started in December 2018 when the Appellant (Ms Choi) applied under the Government Information (Public Access) Act 2009 (GIPA Act) for access to information held by the Respondent. The Respondent advised Ms Choi that processing charges applied to the application, and it requested an advance deposit amounting to 50% of the estimated charges for responding to the application. Ms Choi paid the advance deposit of $52.50. [5] Responding to Ms Choi's application took the Respondent longer than it had estimated. On 27 March 2019 the Respondent identified a number of documents it would release to Ms Choi (some of them with redactions), and gave her a list of those documents, but before releasing the documents it asked her to pay a further charge of $155.00. Ms Choi did not pay that amount, but applied to the Information and Privacy Commissioner (IPC) for an external review of the decision, in respect of both the processing charge and the decision not to release some of the information held by the Respondent. [6] The IPC provided its report and recommendation on 7 June 2019. It recommended an internal review by the Respondent of certain aspects of its initial decision. [7] The Respondent's internal reviewer came to the same conclusion as the original decision-maker: all information originally identified for release would be released, and all information originally identified as information that should be withheld because of an overriding public interest against release, would be withheld. [8] The reviewer provided to Ms Choi a Notice of Decision dated 4 July 2019, which attached a Schedule of Documents identified as within the scope of the access request. The Notice of Decision contains this summary of the Respondent's position, at paragraphs 79 to 82 (emphasis in the original): [79] I refer to the attached schedule of documents, which summarises the information released to the applicant on 27 March 2019 and the information withheld due to an overriding public interest against disclosure. I have reviewed the records and have decided to release the same information. I have also decided to withhold the same information as previously decided, due to an overriding public interest against release of that information. [80] I confirm, for clarity, that 849 pages were identified within scope. While it was determined that there is an overriding public interest against disclosure of some information, the vast majority of the information identified as within scope was determined to be released to the applicant. The department has redacted the information for which there is an overriding public interest consideration against disclosure. However, this is only a small amount of the total information to be released. [81] Information will be provided via email in pdf format. [82] However, I note that there are outstanding processing charges in the amount of $155.00. Information will only be released upon receipt of proof of payment of that amount. ... [9] Ms Choi still did not pay the processing charge of $155.00, and so the Respondent did not release the information to her. [10] On 24 September 2019 Ms Choi applied to the Tribunal for an administrative review of the Respondent's decision. That application was out of time - GIPA Act s 101(1) requires applications to the Tribunal to be made within 40 working days - but the Tribunal can extend time under s 101(4). After conducting a hearing on 26 November 2019, the Tribunal (Senior Member Ransome) refused the extension of time and dismissed the application on 5 December 2019: Choi v NSW Department of Justice [2019] NSWCATAD 248. [11] Only then, on 5 December 2019, and on receiving notification that the Tribunal had dismissed her application for review, did Ms Choi pay the processing charge of $155.00. The Respondent released the information to Ms Choi on the same day, by emailing to her the 849 pages identified for release. [12] Ms Choi seems to have been dissatisfied with what was provided to her by the Respondent. She lodged a further Administrative review application form with the Tribunal, dated 31 December 2019. In that form, under the heading 'Grounds for application', she stated: On 14 February, 27 March 2019, 4 July 2019 and on 26 November 2019 at the hearing, the Respondent said it would provide me with approximately 195 pages under the condition that I pay the extra money $155 for the labour fee to redact some information. Thus, on 5 December 2019, I paid the $155. However, the Respondent emailed me only 849 pages. Also, the information the Respondent provided is not congruent with the reasons it said in the past two Notice of Decision. In addition, the public considerations applied are not necessary. Confusingly, the information was released in bulk not under the sub-points. [13] Ms Choi subsequently clarified that the reference in the application form to '195 pages' should in fact be '950 pages'. [14] On 11 February 2020 the Tribunal made orders for the conduct of a preliminary hearing at a later date. The orders also gave Ms Choi the opportunity to provide material to the Tribunal 'to establish that she could only consider [whether to lodge] any [application for] administrative review to the Tribunal after receipt of the information in December 2019 that arose from the decision of 4 July 2019'. The preliminary hearing, to take place on 20 March 2020, would be conducted for the purpose of determining whether Ms Choi should be granted an extension of time, under s 41 of the NCAT Act, to lodge her application for review dated 31 December 2019. [15] Senior Member Gracie conducted the preliminary hearing on 20 March 2020. On 18 June 2020 he dismissed the application to extend time: Choi v Secretary, Department of Communities and Justice [2020] NSWCATAD 154. That is the decision that is now under appeal.

The reasons of the Panel

1. When the proceedings came before the Panel an immediate issue arose regarding the applicant's participation. The Panel recounted these circumstances in the following terms: [5] [18] A short time later Ms Choi joined the telephone hearing. Although all other participants could hear Ms Choi clearly, she repeatedly claimed not to be able to hear anyone else. After a few minutes we terminated the call, instructing the participants to try to connect again. At about this time Ms Choi was sending an email to the Tribunal's Registrar saying she had called the connecting number and keyed in the meeting code but 'I cannot hear anything. What is happening?' [19] When Ms Choi joined the resumed telephone hearing she still claimed she could not hear anything. She said this: I'm not sure if you can hear my voice or not. I cannot hear. It's like - actually the Department of Communities and Justice disconnected the networking traffic from New South Wales to Korea to browse www.justice.nsw.gov.au the website. In the same way maybe I cannot access the hearing - the hearing room. That is very nasty, I think. That is really bad. You understand? The Korean people cannot browse the website of the Department of Justice. In the same way I cannot access the hearing ... the phone hearing. It's unbelievable. OK, can you understand? I cannot hear you. But I emailed the Registrar twice.... That is really bad. [20] Curiously, Ms Choi remained completely silent during the ensuing discussion between Deputy President Westgarth and the interpreter, in which the interpreter repeated the claims Ms Choi had made. Only after that discussion finished did Ms Choi speak again: Hello? I'm going to email again. Listen carefully. In Korea, all the people know the Department of Justice disconnected the networking traffic from New South Wales to Korea, and the people in Korea are unable to browse the Department of Justice because the Department of Justice disconnected. ... And I cannot hear because this phone line is from the Department of Justice, right? Not from NCAT. And this is unbelievable. I cannot believe it - this is so nasty. ... The issue is going to be an international issue ... [21] Within minutes Ms Choi had sent two further emails to the Registrar. The first one, at 10:26, said this: 1. I am unable to hear anything. I am unable to browse the www.justice.nsw.gov.au in Korea. I am also unable to access the phone 8688-2222. 2. Who is the Appeal Panel? I disqualify Hennessy ADCJ and President Westgarth. 3. The Respondent did not file and serve a proper notice of representation. I disqualify the lawyer. 4. Therefore, the order should be 'release all the information'. [22] The second of Ms Choi's further emails, her third of the morning, came at 10:37. It said this: A Korean interpreter is organised? The Member and the Respondent are in the hearing room? Can they hear me? My phone is not connected. I cannot hear anything. So frustrating. I am unable to browse www.justice.nsw.gov.au because the Department of Justice blocked the networking traffic from NSW to Korea. [23] With Ms Choi continuing to claim she could not hear the other participants, the hearing could not continue. In different circumstances we may have been inclined to reschedule the hearing to a later date, but it is possible, even likely, we would have experienced the same difficulties the next time. There was also the fact that, as far as we could tell, Ms Choi objected to having Deputy President Westgarth involved as one of the members of the Appeal Panel, and that application needed to be dealt with before we could take the appeal any further. We therefore made orders to give the parties the opportunity to make submissions on the recusal application; Ms Choi's application for Ms Chau Hua not to represent the Respondent; and whether those issues, and the appeal itself, may be determined on the papers, without a further hearing.
2. The circumstances outlined by the Panel in those passages gave rise to a preliminary question, namely, whether a further oral hearing was required, or whether the issues could be determined on the basis of the written material which had been filed. It was the applicant's position before the Panel that a further oral hearing was required.
3. In reaching the conclusion that the issues could be adequately determined without the need for a further hearing, the Panel observed (inter alia) that the applicant's submission that such a hearing was required was based on a number of extreme and unsubstantiated allegations, including blackmail, fabrication of proceedings, concealment of misconduct and corruption. [6] The Panel's reasons for determining that the issues could be properly adjudicated upon on the basis of the written material, and without the need for a further hearing, were expressed as follows: [7] [27] Section 50 of the NCAT Act provides that a hearing is generally required for proceedings in the Tribunal, but there are exceptions to that general rule. [28] One of the exceptions (s 50(1)(a)) is where the proceedings are for the granting of leave for an external or internal appeal. This is such a case, since it is an appeal against an interlocutory decision of the Tribunal and so requires the leave of the Appeal Panel: see [46]-[47] below. [29] Another exception (s 50(2)) is where the Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or other documents or material provided to the Tribunal. In that circumstance the Tribunal can make an order under s 50(1)(c) dispensing with a hearing, but the Tribunal must first give the parties an opportunity to make submissions on whether the matter should be determined on the papers, and must take any such submissions into account: s 50(3). [30] In the circumstances, where the parties had initially expected the proceedings to be conducted by way of an oral hearing, we chose to give them the opportunity to make submissions on whether a further hearing might be dispensed with. The parties have provided written submissions and we have taken their submissions into account. [31] Ms Choi is the only party who considers a further hearing is necessary. Her submission in that regard is not persuasive. It rises no higher than the bald statement that a hearing is required, but she provides no cogent material to support the submission. [32] We are satisfied that the issues can be adequately determined on the papers. Accordingly we order that a further hearing is dispensed with.
4. Having reached that conclusion, the Panel turned its attention to the determination of an application that Deputy President Westgarth recuse himself from the hearing. In doing so, the Panel observed [8] that the basis of that application was not clear, and postulated that it may have been nothing more than the fact that Deputy President Westgarth, either alone or as a member of an Appeal Panel, had previously made decisions that were adverse to the applicant. In the absence of any proper indication as to the substance or basis of the application, the Panel proceeded on the assumption that the applicant asserted apprehended bias on the part of Deputy President Westgarth. [9] Having set out the relevant principles and authorities, the Panel concluded that there was nothing in the material filed by the applicant which satisfied the test for apprehended bias. That application for Deputy President Westgarth's recusal was refused. [10]
5. The Panel then turned to consider an application made that Ms Chau Hua, who had been present at the hearing, not be permitted to represent the applicant. In advancing a submission that Ms Hua should not be permitted to represent her, the applicant alleged that "corruption (was) involved". The Panel regarded that assertion as both "scandalous and unfounded" [11] and concluded that there was no basis to refuse to permit Ms Hua to represent the applicant.
6. The Panel also noted [12] that the decision then under appeal included a decision refusing to extend time for the making of an application to the Panel and was thus an interlocutory decision. The Panel went on to observe [13] that an internal appeal against an interlocutory decision required leave of the Panel and that the applicant had not provided any reasons why leave should be granted.
7. The Panel then identified three substantive grounds of appeal, namely whether: [14] (1) there had been a failure to provide proper reasons; (2) a wrong principle of law had been applied; (3) there had been a failure to afford procedural fairness.
8. In respect of ground 1, the Panel summarised the submissions of the parties, [15] and concluded that the applicant was doing no more than seeking to re-agitate issues that had previously been decided against her. The Panel made reference to the applicant's assertions that there had been a failure to provide proper reasons, as well as her assertion that there had been no evidence to support the various findings of fact which had been made at first instance. [16] The Panel concluded: [17] [63] Ms Choi persists, at [7], [8], [13], [14], [15] and [17] of her submissions dated 28 June 2020, with the claim that the Respondent made a decision on 5 December 2019, or that it was only on 5 December 2019 that the full import of the decision of 4 July 2019 became known. Both claims were definitively rejected by the Tribunal below: at [44], [46]-[47] and [68]. Attacks on the Tribunal's decision or reasoning on the basis that there was no evidence, or that the conclusion was incorrect, or that the reasons were inadequate, are unfounded. They are simply attempts to have the extension of time issue reconsidered on the merits.
9. The Panel found that in these circumstances, ground 1 was not made out.
10. As to ground 2, the Panel concluded [18] that the applicant had misstated the relevant principles. The effect of the Panel's determination was that this ground of appeal lacked merit. [19]
11. In respect of ground 3, the Panel concluded [20] that even when taken at its highest, the applicant's submission was that there had been a technical non-compliance on the part of the Respondent with the Panel's directions. However, the Panel went on to point out that on no measure would such a trivial shortcoming amount to a denial of procedural fairness. The Panel concluded that ground 3 was not made out.
12. Having dealt with the individual grounds of appeal, the Panel [21] identified the relevant principles to a grant of leave to appeal from an interlocutory decision. Having done so, the Panel concluded that the applicant's case did not satisfy those principles and that there was nothing to warrant a grant of leave to appeal. [22] The Panel then refused leave to appeal and dismissed the appeal. [23]

Consideration of the threshold issue of an extension of time

1. It is necessary for me to determine a threshold issue, namely whether the applicant should be granted an extension of time pursuant to r 50.12(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules) to extend the time to file a summons outside the time required by r 50.12(1)(a).
2. Rule 50.12(1) is in the following terms: Leave to appeal (1) A summons seeking leave to appeal must be filed - (a) within 28 days after the material date, or (b) if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or (c) within such further time as the higher court may allow.
3. In the present case, the Pane's judgment was handed down on 18 January 2021 and accordingly, the material date for the purposes of r 50.12(1)(c) was 15 February 2021. The applicant filed the present summons on 24 February 2021 and therefore requires an extension of time.
4. The principles to be applied in determining whether or not an extension of time should be granted include the following: 1. an extension of time is not granted automatically or as of right, and the Rules of Court which govern the time within which steps for pursuing an appeal are to be complied with; 2. the Rules are not to be used to impose any injustice; 3. the object of the Court's power to extend time is to do justice between the parties, and thus the Court will extend time where not to do so would result in an injustice to a party; 4. relevant considerations in exercising the discretion to extend time include 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 the extension of time, the prospects of the appeal's success and any prejudice caused to the respondent by extending the time. [24]
5. In my view, an extension of time should not be granted in the present case for three principal reasons.
6. Firstly, the history of the proceedings weighs against an extension being granted. The applicant was originally refused an extension of time to lodge an application for review under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) by Senior Member Gracie. [25] She then sought leave to appeal against that decision. That application was dismissed by the Panel for the reasons I have outlined. In seeking an extension of time in which to bring an application for leave to appeal against the decision of the Panel, 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. To allow an extension of time in those circumstances would, in my view, visit some injustice on the respondent.
7. Secondly, and making every allowance possible for the fact that the applicant is unrepresented, I do not regard the matters set out in paragraph (48) of the Summons (which are not on oath) as amounting to an adequate explanation of why the summons was not filed within time. This is particularly so in circumstances where, although self-represented, the applicant is an experienced litigant.
8. Thirdly, even if an extension of time were granted, the applicant would require leave to appeal against the Panel's decision. The reasons of the Panel are comprehensive. The multitude of issues which were raised by the applicant were thoroughly considered and dealt with. Each of the conclusions reached by the Panel was open. It follows that any appeal against the Panel's decision would have little or no prospects of success. Further, generally speaking, the summons filed by the applicant fails to disclose any clear ground(s) of appeal. Contrary to what the applicant asserts, there is no point of principle which would warrant a grant of leave to appeal, and the applicant's complaint that the reasons of the Panel were inadequate has no merit whatsoever. All of these factors weigh heavily against a grant of leave to appeal. In those circumstances, granting the applicant an extension of time in which to file a summons seeking such leave would be entirely futile.

ORDERS

1. For these reasons I make the following orders: 1. An extension of time in which to file the summons is refused. 2. The summons is dismissed. 3. Absent agreement as to costs, the parties are to provide written submissions not exceeding one page to my Associate within 7 days.

Endnotes

1. Choi v Secretary, Department of Communities and Justice [2021] NSWCATAP 8.
2. T6.41 - T6.42.
3. T8.3 - T8.12.
4. [2021] NSWCATAP 8 commencing at [3] - [15].
5. At [18] - [23].
6. At [24].
7. At [27] - [32].
8. At [34].
9. At [35].
10. At [35] - [37].
11. At [43].
12. At [46].
13. At [47].
14. At [48].
15. At [57] - [60].
16. At [61] - [62].
17. At [63].
18. At [74] and following.
19. At [74] - [79].
20. At [80] - [83].
21. At [84].
22. At [86].
23. At [87].
24. See Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232 at [87] per Einstein J, cited by Hislop J in Shamieh trading as Consolidated Lawyers v Easy Buy International Pty Limited [2010] NSWSC 970 at [13].
25. Choi v Secretary, Department of Communities and Justice [2020] NSWCATAD 154 and see the reasons of the Panel at [15]. 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: 09 March 2022