Choi v NSW Ombudsman

1. [1]

   The applicant (Ms Choi) has filed an amended summons (supervisory jurisdiction) dated 28 November 2024 in this Court. In the summons originally filed by Ms Choi on 31 July 2024, as the applicant she described herself as “Jae Hee Choi trading as NSW Ombudswoman”. She described the first and second respondent (also referred to in that document as the first and second defendant) as “OFFICE OF THE OMBUDSMAN trading as State Government Entity ABN 76 325 886 267” and “CIVIL AND ADMINISTRATIVE TRIBUNAL OF NEW SOUTH WALES ABN 65 668 163 398” respectively.

2. [2]

   On 14 October 2024, the Registrar substituted the NSW Ombudsman for the entity named by Ms Choi as the first respondent/first defendant in the summons.

3. [3]

   When Ms Choi filed the amended summons on 28 November 2024, she described the parties as follows:

4. [4]

   By the amended summons, Ms Choi seeks to challenge by way of judicial review two decisions of the Civil and Administrative Tribunal of NSW (NCAT). The first decision, by Senior Member Tibbey, is dated 17 March 2022. By this decision, the applicant was refused leave to proceed with a complaint alleging unlawful discrimination and victimisation by the Ombudsman. The second decision is that of Senior Member Montgomery and is dated 26 July 2021. This earlier decision determined several interlocutory matters concerning the applicant’s complaint of unlawful discrimination and victimisation by the Ombudsman.

5. [5]

   NCAT has filed a submitting appearance.

6. [6]

   Notably, the same two decisions were the subject of an earlier unsuccessful judicial review challenge in the Common Law Division of the Supreme Court. On 5 April 2024 Cavanagh J published reasons for judgment and made certain orders in Choi v NSW Ombudsman [2024] NSWSC 352. Shortly thereafter, on 9 April 2024, under the slip rule his Honour republished his reasons and, in addition to the orders made on 5 April 2024, made an order which dismissed motions filed 30 March 2023, 27 April 2023 and 27 October 2023. Ms Choi was ordered to pay the Ombudsman’s costs.

7. [7]

   Subsequently, in Choi v NSW Ombudsman [2024] NSWSC 940, N Adams J determined three notices of motion arising from Cavanagh J’s orders and judgment. Her Honour dismissed Ms Choi’s first notice of motion filed on 18 April 2024 in which she sought to change the name of the first respondent and to remove the Crown Solicitor as the first respondent’s representative.

8. [8]

   A second notice of motion, filed by Ms Choi on 14 May 2024, was also dismissed. It sought to have set aside the Ombudsman’s motion seeking that the costs ordered by Cavanagh J be paid on a gross sum order basis.

9. [9]

   Finally, N Adams J allowed the Ombudsman’s motion that the costs be paid on a gross sum order basis, in the amount of $30,000.

10. [10]

    Turning to the present proceeding, the Ombudsman filed a notice of motion on 10 December 2024, seeking to have Ms Choi’s amended summons dismissed under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or, alternatively, struck out under r 14.28.

11. [11]

    On the same day, Ms Choi filed a notice of motion seeking to strike out the Ombudsman’s notice of motion together with the notices of appearance filed 11 October 2024 and 9 December 2024 on behalf of the Ombudsman.

12. [12]

    On 13 December 2024, the Registrar made orders in Chambers listing the two motions for hearing on 3 February 2025. Orders were also made for the filing of written submissions.

13. [13]

    On 3 February 2025, the two motions were listed for hearing before McHugh JA. At the commencement of the hearing, the applicant sought his Honour’s recusal on the basis that, in 1991-1992, his Honour was a summer clerk at Blake Dawson Waldron for two months when the Honourable Mark Speakman SC MP was a partner of that law firm. Mr Speakman is not a party to the proceeding nor likely to be a witness, but the applicant told McHugh JA that she had “suffered” from Mr Speakman. This is an apparent reference to the applicant’s frustration and dissatisfaction with the Attorney-General’s actions in dealing with Ms Choi’s complaints regarding the University of Technology Sydney, NCAT and the Ombudsman. His Honour declined to recuse himself and the hearing proceeded.

14. [14]

    The hearing was affected, however, by technical difficulties relating to the audio-visual link (AVL). The Court made an order under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) allowing the applicant (who is a litigant in person) to appear from South Korea. The Court persevered for a time but when the technical difficulties recurred, his Honour stood over the hearing of the notices of motion to the referrals Judge on 10 February 2025.

15. [15]

    Justice Kirk was the referrals Judge on 10 February 2025. By email, Ms Choi asked that the hearing be adjourned and she also sought Justice Kirk’s recusal. His Honour granted Ms Choi’s application for the proceeding to be adjourned. The two motions were stood over to be heard by the referrals Judge on 24 February 2025. The following orders were made on 10 February 2025:

Ms Choi’s recusal application

1. [16]

   By an email sent to my Chambers at 4:13pm on 20 February 2025, Ms Choi sought my recusal on several grounds. The email states (without alteration):

2. [17]

   Ms Choi represented herself and appeared by audio-visual link from South Korea, where she now resides.

3. [18]

   After hearing Ms Choi’s submissions in support of her recusal application and considering her evidence in support of that application, I indicated that I would not accede to her request and that I would provide reasons in due course. These are those reasons.

4. [19]

   It is desirable to set out at the outset the well-established principles which apply to an application for recusal of a judicial officer on the basis of apprehended bias.

5. [20]

   The test is whether a fair-minded and reasonably informed lay-observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of a question to be determined (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]).

6. [21]

   The “double might” test involves two (possibly three) steps. The first step is the identification of what it is said might lead the judge to decide a question other than on the merits of that question. The second step is to articulate 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 (Ebner at [8]).

7. [22]

   The third possible step is to determine the reasonableness of the asserted apprehension of bias (see Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59] per Gageler J and Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]).

8. [23]

   The first basis for Ms Choi’s recusal application appears to relate to the fact that my Associate notified Ms Choi and the other parties that a further notice of motion filed by Ms Choi on 18 February 2025 would also be heard by me as referrals Judge on 24 February 2025 together with the two motions filed on 10 December 2024. When my Associate sent that email, my Chambers were aware of the fact that Ms Choi had filed the further notice of motion but were unaware that the Registry had declined to list it for hearing, apparently on the basis that Ms Choi had failed to provide a place in NSW as an address for service.

9. [24]

   In those circumstances, on 21 February 2025, my Associate informed the parties, including Ms Choi, that the only motions listed for hearing on 24 February 2025 were the two motions dated 10 December 2024.

10. [25]

    In paragraph 1 of her email, Ms Choi also complains that I had not been assigned to hear the two notices of motion. The nomination of which particular Judge of Court will sit as the referrals Judge weekly on the Monday is an administrative practice within the Court which is overseen by the head of jurisdiction. Such knowledge can be attributed to a reasonable lay observer. As the High Court stated in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13] (footnote omitted):

11. [26]

    The fact that a Registry document incorrectly stated that no judge had been assigned to hear the matters on 24 February 2025 does not give rise to apprehended bias. The same may be said concerning the notification given by my Chambers to the parties on 20 February 2025 that any application for an adjournment should be made at the outset of the hearing on 24 February 2025.

12. [27]

    All the matters raised by Ms Choi in the first paragraph of her email fall far short of satisfying the relevant principles relating to apprehended bias.

13. [28]

    The second basis relied upon by Ms Choi relates to the fact that, according to Ms Choi, I “worked together with Kirk JA and are close each other” and I have also worked with Macfarlan JA “and has a close personal friendship with Mr Macfarlan JA”.

14. [29]

    Justice Kirk, the now retired Justice Macfarlan and myself were all barristers on the Eleventh Floor Wentworth Chambers. Mr Macfarlan KC was appointed a Justice of the Court of Appeal in September 2008 and retired in February 2023. I left the Eleventh Floor in April 2012 when I was appointed a Justice of the Federal Court. Upon my retirement from that Court in April 2022, I was appointed an Acting Justice of the Court of Appeal. The then Macfarlan JA and I overlapped on this Court for a period of approximately 10 months. Neither that historical fact, nor the fact that Justice Kirk and myself are currently members of this Court and Mr Macfarlan KC is formerly a member of the Court provides a sufficient basis to satisfy the relevant test. Nor does the fact that we were barristers on the same floor for several years. Ms Choi has failed to identify any logical connection between these professional relationships and the apprehension that I may not deal with the motions impartially. (See also Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 at [24]-[29]).

15. [30]

    The third basis for the requested recusal relates to the matters raised by Ms Choi in paragraph 4 of her email.

16. [31]

    It is difficult to understand this complaint. Ms Choi and the other parties were advised by my Associate on 20 February 2025 that if she wished to adjourn the hearing of the motions listed to be heard on 24 February 2025, she should make that application at the commencement of that hearing. I do not consider that a fair-minded lay observer with a knowledge of the basic procedures of the Court might consider that these matters indicate that I might not bring an impartial mind to determining the motions or any application for recusal.

17. [32]

    As to Ms Choi’s complaint that orders had been made on 3 and 4 February 2025 that her summons should be listed for directions, the orders made on those days simply stood over the summons and both notices of motion to the referrals Judge on 10 February 2025, on the basis that both motions were to be heard on that day.

18. [33]

    In accordance with general practice, the making of directions in respect of the amended summons should await the outcome of the motions in circumstances where the Ombudsman is seeking to have the amended summons summarily dismissed. A reasonably informed lay observer should be attributed with general knowledge concerning basic Court procedures, including the general practice to give priority to the hearing and determination of an application for summary dismissal and to defer giving further directions in the substantive proceedings until the outcome of a summary dismissal application is known.

19. [34]

    As to Ms Choi’s submission that her notice of motion filed 18 February 2025 ought to have been listed to be heard first, as noted above, the Registry declined to list that motion for hearing because Ms Choi had not provided a place in NSW as an address for service.

20. [35]

    Ms Choi also asserts that there is apprehended bias because her proceedings are still being referred to as “Choi v NSW Ombudsman” and not by her preferred name for the first defendant/respondent. Ms Choi has not identified the requisite logical connection between this matter and an apprehension that the motions would not be heard and determined impartially. Describing the proceedings in the same formal manner as described by the Registry could scarcely amount to apprehended bias. The Court was well aware of Ms Choi’s preferred naming of the first respondent, as raised in her 10 December 2024 motion. That is the very matter which was to be heard on 24 February 2025.

21. [36]

    Furthermore, by an email sent to my Chambers on the day of the hearing at 2:40am Ms Choi asked me to disqualify myself “as soon as possible” because she said one of the grounds for her application is that she had filed a complaint against my conduct with the Judicial Commission of NSW. Subsequently, by an email sent on the same day at 11:20am Ms Choi wrote as follows (without alteration):

22. [37]

    Annexed to the email was a copy of a complaint to the Judicial Commission of NSW. The complaint is dated 20 February 2025 and is signed by Ms Choi. Her complaint is as follows (without alteration):

23. [38]

    As at the time of the hearing, no formal notification of the complaint had been received from the Judicial Commission.

24. [39]

    Ms Choi’s email dated 20 February 2025 (see at [16] above), her two emails dated 24 February 2025 and a copy of her complaint to the Judicial Commission were tendered by her (Exhibit 1).

25. [40]

    It is well established that judges should act with appropriate restraint in determining whether or not to accede to a recusal request. In Re JRL; Ex Parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39 Mason J said:

26. [41]

    It is not appropriate for me to comment at this stage on the substance of Ms Choi’s complaint. It will be a matter for the Judicial Commission to determine how it will respond to any formal complaint, including whether or not the complaint should be summarily dismissed pursuant to s 20(1) of the Judicial Officers Act 1986 (NSW), as expressly referred to at paragraph 10 of the pro forma instructions given to complainants by the Judicial Commission.

27. [42]

    As a reasonably informed lay observer would appreciate, I am duty bound to hear and determine the motions consistently with my judicial oath irrespective of whether a complaint has been lodged with the Judicial Commission. In my view it is highly undesirable that a litigant should achieve the recusal of a judge by simply lodging a complaint with the Judicial Commission with the evident purpose of facilitating such a recusal. It may also be noted as part of the procedural history of these matters that Ms Choi also sought the recusal of both Justices McHugh and Kirk.

28. [43]

    Finally, in oral address, Ms Choi sought my recusal on the basis of my association with the Honourable Mark Speakman SC MP on the basis that I was a partner at Blake Dawson Waldron when Mr Speakman SC MLA was also a partner. I resigned my partnership in 1994, when I was called to the NSW Bar.

29. [44]

    It appears that Ms Choi’s grievance relates to her interest in having the Attorney-General become involved as amicus curiae in litigation some years ago when Mr Speakman was Attorney-General. He is currently Leader of the Opposition in NSW. He is not a party to the proceeding or a person with any interest in the proceeding.

30. [45]

    In these circumstances, I do not consider that a fair-minded lay observer with a broad knowledge of the material objective facts and background might apprehend that I might not bring an impartial mind to these proceedings simply because Mr Speakman and I were partners at Blake Dawson Waldron approximately 30 years ago. Ms Choi not only failed to identify what it is said might lead me to decide the motions other than on their legal and factual merits because of my past association with Mr Speakman, she also failed to articulate the logical connection between that distant association and the feared deviation by me from deciding these matters on their merits.

31. [46]

    For all these reasons, I declined to recuse myself.

The two motions

1. [47]

   I will address Ms Choi’s motion first. Before doing so I will set out part of Cavanagh J’s reasons for judgment in Choi v NSW Ombudsman [2024] NSWSC 352 at [8]-[32] which summarise (at some necessary length) the relevant background (footnotes omitted):

2. [48]

   Ms Choi’s motion seeks to have the Ombudsman’s motion summarily dismissed primarily on the basis that the Registrar invalidly changed the name of the first respondent. Ms Choi also claims that there is no retainer between the first respondent as named by her in the amended summons and the Crown Solicitor’s Office. Furthermore, she complains that any materials in the proceeding which have been provided by the Crown Solicitor’s Office are invalid because that Office is not authorised to act for the first respondent.

3. [49]

   In her motion filed 10 December 2024 Ms Choi seeks the following seven orders (without alteration):

4. [50]

   I understood Ms Choi to rely upon the same six affidavits which are described at [63] below.

5. [51]

   In her written submissions dated 31 January 2025 in support of her motion, Ms Choi contends as follows:

6. [52]

   Ms Choi also provided further written submissions dated 18 and 19 February 2025 in support of her motion. She repeated her claims concerning the correct name of the Ombudsman as a party in the proceedings and the authority of the Crown Solicitor’s Office to act for the Ombudsman.

7. [53]

   These contentions and claims are rejected. It is plain from the terms of the Ombudsman Act 1974 (NSW) that the NSW Ombudsman is a statutory office holder and, as a legal entity, is able to sue and be sued in that name (subject to relevant provisions in the Ombudsman Act). The first respondent is appropriately named as the NSW Ombudsman or, alternatively, could be referred to as the Office of Ombudsman (which was the title used in Kaldas v Barbour (2022) 107 NSWLR 341; [2017] NSWCA 275 at [231]-[233] per Basten JA).

8. [54]

   Equally, the NSW Ombudsman (or the Office of Ombudsman) is empowered to retain legal representation in legal proceedings, including the Crown Solicitor’s Office. It is evident from the terms of Ms Lewis’ affidavit dated 10 December 2024 that she is a solicitor employed in the Crown Solicitor’s office and that office has been retained by the NSW Ombudsman to represent the Ombudsman in these proceedings.

9. [55]

   Ms Choi’s insistence that the proper name of the first respondent is “Office of the Ombudsman trading as State Government Entity ABN 76 325 886 267” is misconceived. Under ss 24 and 25 of A New Tax System (Australian Business Number) Act 1999 (Cth) (ABN Act), the Commissioner of Taxation is required to maintain an Australian Business Register containing the details of various “entities” and their particular Australian Business Number (ABN). The object of this regime, which was introduced in 1999 alongside the GST system, is to “make it easier for businesses to conduct their dealings with the Australian government”, including by allowing them “to identify themselves reliably for the purposes of taxation laws” (ABN Act, s 3). In furtherance of that object, government agencies are treated as if they are separate “entities” in their own right (ABN Act, s 5); otherwise, for taxation purposes, those government agencies would not be treated as separate entities but rather would form part of the broader body politic, such as New South Wales or the Commonwealth. This regime is not directed to the identification of a legal entity for the purposes of judicial review or any other proceedings in this Court.

10. [56]

    As to Ms Choi’s challenge to the role of the Crown Solicitor as legal representative for the Ombudsman, her complaint appears to be related to her claim that since the Ombudsman has not been given the name she prefers the notice of appearance filed with respect to the other name is invalid. It is well established that the onus of proving that a lawyer lacks authority to represent a client lies on the person who asserts the lack of authority: see Doulaveras v Daher (2009) 253 ALR 627; [2009] NSWCA 58 at [160] per Campbell JA and the cases cited therein. That onus has not been discharged here. I have already explained why the Registry was correct not to use Ms Choi’s preferred name. Ms Choi has failed to make good her complaints regarding the name of the Ombudsman and the associated legal representation.

11. [57]

    There is another problem with Ms Choi’s motion. It impermissibly seeks to reagitate matters which were raised by her previously in her motion filed 18 April 2024, which was dismissed by N Adams J (see at [7] above).

12. [58]

    Finally, in oral address, Ms Choi made extensive submissions concerning a consent judgment/order dated 31 July 2024 filed at 5:42pm, which she claimed to be forged. The document, which is recorded as relating to proceedings involving the “Office of the Ombudsman ABN 76 325 886 267” as first applicant and Ms Choi as first respondent, states that it was filed by Ms Choi. Ms Choi drew attention to different times stamped on documents filed by her. She also relied upon an email dated 17 February 2025 which she sent to the Registry and inquired about the consent judgment. The Registry replied and explained that Ms Choi had filed a new summons as a consent judgment/order on an existing matter instead of creating a new matter.

13. [59]

    Ms Choi has failed to provide any credible and admissible evidence to make good her serious allegation that the consent judgment was forged. A far more plausible explanation for what occurred has been provided by Mr Keevers, who appeared for the Ombudsman. It is to the effect that it appears that Ms Choi inadvertently filed the consent judgment/order relating to proceedings that had been commenced in 2022. Subsequently, when she queried the matter with the Registry and suggested that the Ombudsman had fraudulently sought to enter the consent judgment/order she was informed of her error and was told that she should commence new proceedings. As previously mentioned Ms Choi then filed her original summons (supervisory jurisdiction) on the same day, being 31 July 2024.

14. [60]

    In any event, as the Court sought to point out to Ms Choi during the course of the hearing, it is difficult to discern any prejudice arising from the consent judgment/order. Ms Choi was also permitted to file an amended summons (supervisory jurisdiction) on 28 November 2024. It is not the case that she was prevented from filing that document because of the uncertain events surrounding the consent judgment/order filed 31 July 2024.

15. [61]

    For these reasons, Ms Choi’s motion filed 10 December 2024 will be dismissed, with costs.

16. [62]

    The Ombudsman relies on an affidavit dated 10 December 2024 affirmed by Ms Lisa Lewis. The exhibit to her affidavit was tendered as Exhibit A. Ms Choi confirmed that she had been served with an electronic copy of the Exhibit. Ms Lewis describes the lengthy procedural history of the matters, including the proceedings before Cavanagh J which resulted in orders dated 5 and 9 April 2024, as well as further proceedings before N Adams J, which culminated in orders dated 31 July 2024 in which Ms Choi’s notices of motion filed on 18 April and 13 May 2024 were dismissed. Her Honour upheld a notice of motion filed on 3 May 2024 by the Ombudsman.

17. [63]

    Ms Choi relies on six affidavits by her filed on 10 December 2024, 30 January 2025, 31 January 2025, 8 February 2025, 19 February 2025 and 24 February 2025. She also tendered voluminous exhibits, which in many instances repeated documents included in earlier exhibits. Some of the material in the affidavits was scandalous and contained assertions of corruption on the part of several named judges and other individuals, including the Attorney-General. Rather than take up extensive time addressing the many portions of the evidence which were scandalous, the Ombudsman adopted the sensible course of submitting that the material should be admitted subject to relevance. Large parts of Ms Choi’s affidavits are in the nature of submissions rather than evidence.

18. [64]

    For completeness, I should confirm that I have considered Ms Choi’s affidavits and their exhibits not only in respect of the Ombudsman’s motion but also in respect of her own motion.

19. [65]

    Both Ms Choi and the Ombudsman filed written submissions.

20. [66]

    Rule 13.4 of the UCPR empowers the Court to dismiss proceedings generally or in relation to any claim for relief where, amongst other things, no reasonable cause of action is disclosed or the proceedings are an abuse of process.

21. [67]

    Under s 91 of the Civil Procedure Act 2005 (NSW), although generally a plaintiff is not prevented from bringing fresh proceedings where earlier proceedings have been dismissed, there is an exception in s 91(2). That exception is if, following a determination on the merits in any proceedings, the proceedings and any claim for relief in the proceedings are dismissed, the plaintiff is not entitled to claim any relief in respect of the same cause of action in any subsequent proceedings commenced in that or any other court.

22. [68]

    I accept the Ombudsman’s submission that s 91(2) applies to the present proceeding because Ms Choi is claiming relief in respect of the same cause of action which was dismissed by Cavanagh J following his Honour’s determination on the merits in the earlier judicial review proceeding in Choi v NSW Ombudsman [2024] NSWSC 352. As noted above, that proceeding related to the same two decisions which are challenged in the amended summons.

23. [69]

    For these reasons, the Ombudsman’s motion should be upheld, with costs. Ms Choi’s amended summons will be dismissed.

Conclusion

1. [70]

   For these reasons, the amended summons filed 28 November 2024 will be dismissed. Ms Choi must pay the Ombudsman’s costs of and incidental to the motion filed 10 December 2024.

2. [71]

   The applicant’s motion filed 10 December 2024 will be dismissed, with costs.