Choi v Secretary, Department of Communities and Justice

By an amended summons filed on 11 March 2021 Jae Hee Choi (the applicant) has sought a number of orders arising out of a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (the Panel) [1] constituted by Deputy President Westgarth and Senior Member Frost. The applicant appeared self-represented in the proceedings before this Court. The orders she seeks, and the grounds upon which she relies, are pleaded in the following terms:

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.

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.

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.

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.

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]

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]

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.

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.

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 between the parties was helpfully summarised in the judgment of the Panel handed down on 18 January 2021 which I gratefully adopt: [4]

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]

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.

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]

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]

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.

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.

The Panel then identified three substantive grounds of appeal, namely whether: [14]

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]

The Panel found that in these circumstances, ground 1 was not made out.

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]

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.

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]

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).

Rule 50.12(1) is in the following terms:

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.

The principles to be applied in determining whether or not an extension of time should be granted include the following:

In my view, an extension of time should not be granted in the present case for three principal reasons.

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.

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.

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.

For these reasons I make the following orders: