Case arrested: Tribunal orders appellant to pay police costs

On 23 November 2021, she applied to the Commissioner of Police, NSW Police Force, for access to information under the Government Information (Public Access) Act 2009 (GIPA Act).

The Commissioner initially refused to deal with Wojciechowska’s application.

She applied to the NSW Civil and Administrative Tribunal (NCAT) for administrative review of that decision, in which NCAT remitted the matter to the Commissioner for reconsideration.

The appeal panel found that Wojciechowska had misunderstood the effect of an earlier NSW Court of Appeal decision, which did not prevent NCAT from determining appeals on questions of law under its internal appeal jurisdiction.

The appeal panel dismissed the appeal as misconceived and ordered Wojciechowska to pay the Commissioner’s costs, finding that her appeal had no tenable basis in law and that she had unnecessarily disadvantaged the Commissioner and prolonged the proceedings by failing to identify grounds of appeal.

In dismissing the appeal, the panel said Wojciechowska’s interpretation of the earlier Supreme Court decision was incorrect and that her failure to identify grounds of appeal left the proceedings “misconceived” and without a “tenable basis in law”.

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Wojciechowska lodged an internal appeal against an NCAT decision affirming the NSW Police Commissioner’s decision to release some information, while finding that other information was not held or that there was an overriding public interest against its disclosure.

This appeal stemmed from prior litigation where Wojciechowska disputed NCAT’s authority to review decisions made by the Commissioner – a contention that was ultimately dismissed by the NSW Court of Appeal.

The appeal panel was subsequently tasked with deciding whether Wojciechowska was required to specify a question of law in order to pursue the appeal, as well as whether NCAT possessed the authority to order costs.

Wojciechowska claimed that because NCAT’s appeal panel exercises administrative rather than judicial power, it was required to do a merits review of the Commissioner’s decision and she did not need to identify a question of law.

Despite being given multiple opportunities to provide grounds of appeal, she maintained that the appeal panel should reconsider the merits of the case and instead provided 13 points for its consideration.

The NSW Supreme Court uncovered that NCAT does not exercise judicial power when reviewing decisions under the GIPA Act, disclosing that it could ultimately exercise both its administrative review and internal appeal functions despite the constitutional jurisdiction issue.

The appeal panel determined that Wojciechowska misinterpreted the earlier Supreme Court ruling, with the panel clarifying that the ruling did not restrict NCAT from deciding appeals on questions of law or issuing costs orders.

Further, the panel declined to treat Wojciechowska’s 13 points as grounds of appeal on questions of law, as neither the notice of appeal nor her submissions identified or purported to identify such a ground, and allowing her to amend at that late stage would not be procedurally fair to the Commissioner.

The appeal panel disclosed that Wojciechowska was not entitled to costs in the primary proceedings because she had not applied for costs, and nothing she submitted represented special circumstances warranting costs on appeal.

The appeal panel also said that, even if special circumstances existed, a self-represented litigant may not recover costs for their time spent preparing and conducting the case.

The Commissioner’s application for costs against Wojciechowska was taken into separate consideration based on her failure to comply with directions, the way she conducted the proceedings, and her jurisdiction argument.

The appeal was dismissed, as were Wojciechowska’s applications for costs in both the primary proceedings and the appeal.

Wojciechowska was ordered to pay the Commissioner’s costs of the appeal on the ordinary basis, as agreed or, failing agreement, as assessed.