Wojciechowska v Commission of Police

NCAT Appeal Panel|2021-03-19

REASONS FOR DECISION

On 9 October 2020 the Appeal Panel dismissed an appeal by Paulina Wojciechowska against an order made in proceedings in the Administrative and Equal Opportunity Division for review of a decision under the Government Information (Public Access) Act 2009 (the GIPA Act). Written reasons for that decision were provided on 17 November 2020: Wojciechowska v Commissioner of Police [2020] NSWCATAP 239.
The appeal was against an order made in a case conference held on 21 July 2020, to list the hearing of the administrative review application on 20 October 2020, by telephone. The Appeal Panel determined that to the extent that the impugned order was a "decision" as defined in s 5 of the NCAT Act, it was an "interlocutory decision" as defined in para (i) of s 4 of the NCAT Act, and leave to appeal was required, under s 80(2)(a) of the NCAT Act. Leave to appeal was refused, and the appeal dismissed. Ms Wojciechowska's application for a stay was also dismissed.
On 7 December 2020 the respondent Commissioner applied for an order that Ms Wojciechowska pay the Commissioner's costs of the appeal in the amount of $6,000, or in the alternative, an order that Ms Wojciechowska pay the Commissioner's costs of the proceedings. The Commissioner contends that there are special circumstances warranting an order for costs, under s 60(3)(c), (d), (e) and (f) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).
At call over on 21 January 2021 directions were made for the Commissioner to file and serve evidence and submissions in support of the application for costs by 5 February 2021, and for Ms Wojciechowska to either file and serve her evidence and submissions in opposition to the application for costs, or an application for summary dismissal, by 4 March 2021. The directions included a direction that if an application for summary dismissal was filed the proceedings were to be relisted at the request of either party. If no application for summary dismissal was filed, the application for costs was listed for hearing on 19 March 2021 at 2.15pm.

Costs hearing

The hearing of the costs application was listed for a telephone hearing, and details were notified to the parties on 16 March 2021. On 19 March 2021 the hearing arrangements were changed to AVL, the parties being notified that that was due to statewide interruptions in the Telstra telephone network. At 1.52pm Ms Wojciechowska emailed the Tribunal stating that she was having problems with her computer and as a result was unable to attend the hearing by AVL. Ms Wojciechowska stated that she has never attended anything by AVL; the Tribunal gave her virtually no notice that the hearing was to be run by AVL; and her husband was at work an unable to assist her. Ms Wojciechowska stated "In these circumstances you will have to run your hearing without me".
The Appeal Panel was able to contact Ms Wojciechowska by telephone, and the hearing of the costs application proceeded with her on the telephone and the Commissioner's representative by AVL.
Ms Wojciechowska objected to admission of Ms Mattes' affidavit, on the basis that the tax invoices annexed were not receipts for what was actually paid, and the amounts billed were unreasonable; and objected to the description of the work performed by the Crown Solicitor's Office.
The Appeal Panel reserved on that objection. In light of the decision on the costs application, it is not necessary to rule on Ms Wojciechowska's objections to that affidavit.
The Appeal Panel heard oral submissions from the Commissioner's representative on whether there are special circumstances warranting an order for costs of the appeal. The Commissioner's representative was not in a position to respond to the submissions made by Ms Wojciechowska as to the jurisdictional issue raised in her written submissions of 18 March 2021, those submissions having been served after the date specified in the directions.
The Appeal Panel heard oral submissions from Ms Wojciechowska on the jurisdictional issue raised in her written submissions, and the further grounds raised in her written submissions.
In the course of her oral submissions Ms Wojciechowska requested that the members of the Appeal Panel recuse themselves, on the basis of apprehended bias. The Appeal Panel heard her submissions in support of that application, and submissions from the Commissioner's representative, and reserved on that question.
At the conclusion of the hearing the Appeal Panel made directions for the Commissioner to file and serve submissions in response to Ms Wojciechowska's jurisdictional argument, within 7 days; and for submissions in reply by Ms Wojciechowska within 14 days thereafter. The parties consented to the costs application being determined on the papers, and for any further hearing to be dispensed with.
The Commissioner filed submissions on 29 March 2021, having served them on Ms Wojciechowska by email on 26 March 2021. Ms Wojciechowska filed an affidavit and submissions in reply, dated 10 April 2021, on 19 April 2021.
As discussed below, Ms Wojciechowska had raised the question of whether the Tribunal has jurisdiction in administrative review matters pursuant to s 100 of the GIPA Act in the substantive proceedings below, which were heard on 22 December 2020. The decision in those proceedings has been published: Wojciechowska v Commissioner for Police [2021] NSWCATAD 284. This decision concerns the Commissioner's application for costs of the appeal on the interlocutory order made in the course of the proceedings in the Administrative and Equal Opportunity Division.

Application for disqualification

Before considering Ms Wojciechowska's jurisdictional challenge to the Commissioner's application for costs, and the Commissioner's application for costs, the Appeal Panel must determine Ms Wojciechowska's application that we disqualify ourselves.
Ms Wojciechowska submitted that the Appeal Panel as constituted should not determine the application for costs as that would be adjudicating on itself, and because she has made complaints against DP Westgarth and PM Pearson. The substance of the latter claim is provided in the written submissions, in which Ms Wojciechowska stated that DP Westgarth has in the past "manipulated the Costs Respondent to be able to give a decision for the Commissioner, used disrespectful language against the Costs Respondent" in directions hearings for two appeal matters, and "acted for the Commissioner during the hearing" of another appeal matter. Ms Wojciechowska stated that DP Westgarth has "co-ordinated his efforts with the Commissioner's to intimidate the Costs Respondent with the costs", having stated in the directions hearing "If you apply for the summary dismissal, you may find this produces the second claim of costs". Ms Wojciechowska stated that PM Pearson "has lied in her reasons for the benefit of the Commissioner's lawyer" in a matter in the Administrative and Equal Opportunity Division.
The Commissioner's representative submitted that the test for apprehended bias had not been met.
A decision maker has an obligation to hear and determine a matter unless a reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]-[36]. The general test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11].
The two step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy at [8]: First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker must not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67], per Gummow ACJ, Hayne, Crennan and Bell JJ.
There is no inconsistency between the panel which heard and determined the substantive appeal, proceeding to determine an application for costs of that appeal; that is the usual course in proceedings in this Tribunal and in the courts. The fact that Ms Wojciechowska has made complaints about the way in which either or both DP Westgarth or PM Pearson have handled other matters in the Tribunal in which she has been involved, or particular directions given or decisions made in those matters, does not establish that either might not bring an impartial mind to the question at issue, that is, this application for costs. Ms Wojciechowska has not established the required connection between the facts and circumstances of any of her previous matters in which DP Westgarth or PM Pearson has been involved, and the asserted conclusion that either might not bring an impartial mind to the resolution of the issues in this costs application.
The application for disqualification is refused.

Jurisdiction to determine costs

Ms Wojciechowska is a resident of Tasmania, and it is not in dispute that the respondent Commissioner has no separate legal identity or existence apart from the Crown in right of the State of New South Wales. If the determination of the proceedings would involve an exercise of judicial power, the dispute between a resident of an Australian State other than NSW and the respondent Commissioner would involve a "matter …between a State and a resident of another State", within the meaning of s 75(iv) of the Constitution.
The Tribunal is not a "court of a State" within the meaning of Chapter III of the Constitution or s 39(ii) of the Judiciary Act 1903: Attorney General for New South Wales v Gatsby [2018] NSWCA 254.
Ms Wojciechowska submits that the Tribunal has no jurisdiction to determine the costs application because in reviewing matters pursuant to s 100 of the GIPA Act the Tribunal is exercising federal judicial power. That submission is expressed in terms sufficiently broad to cover the proceedings at first instance in the Administrative and Equal Opportunity Division (AEOD) in 2020/132948, and the proceedings on appeal, both the substantive determination and this costs application.
The Appeal Panel notes that the question of whether review proceedings in the AEOD under s 100 of the GIPA Act involve the exercise of judicial power has been raised by Ms Wojciechowska in other proceedings. In Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAD 310 SM Molony determined that the Tribunal has power under s 60 of the NCAT Act to award costs in administrative review proceedings under the GIPA Act, that power being ancillary to the Tribunal's administrative review jurisdiction under s 30(1) of the NCAT Act. Similarly Ms Wojciechowska raised the same issue in GIPA Act proceedings concerning Blue Mountains Council. In Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179 an Appeal Panel held that in GIPA Act proceedings the tribunal is exercising administrative power and not judicial power. Accordingly there was no Constitutional impediment to the tribunal exercising jurisdiction.
Ms Wojciechowska challenged the jurisdiction of the Tribunal in the review proceedings below. In those proceedings SM Higgins concluded, for detailed reasons at [33]-[100], that the determination of Ms Wojciechowska's application seeking review of the decision of the Commissioner made under s 100 of the GIPA Act is an exercise of administrative power, and not judicial power: Wojciechowska v Commissioner of Police [2021] NSWCATAD 284 at [101].
The contention that the Tribunal had no jurisdiction to determine a matter arising under the GIPA Act was not raised in the substantive appeal. The contention having been raised in the course of consideration of the Commissioner's application for costs, the Appeal Panel is required to determine the threshold jurisdictional issue. The question is whether in hearing and determining the substantive appeal, or in determining the Commissioner's costs application in respect of the appeal, in an administrative review proceeding under s 100 of the GIPA Act, the Tribunal is impermissibly exercising federal judicial power.
Ms Wojciechowska relies on the indicia identified by Callinan J in Luton v Lessels [2002] HCA 13 (references omitted): 188. It is common ground that it is not always possible to define a power or function as being exclusively administrative or judicial. Powers may overlap, and some functions or powers may be conferred on either a court or an administrative body. It has also been said (in the context of a consideration of the power of a Registrar of Trademarks) that some functions "may, chameleon like, take their colour from their legislative surroundings or their recipient". And as both Harris and Brandy v Human Rights and Equal Opportunity Commission decide, the availability and nature of a review by a court are relevant considerations. 189. I would prefer to state a test by reference to several questions, not all of which will be of equal importance in every case. First, is the exercise to be undertaken under the relevant scheme, one which calls for independence and tenure of a kind traditionally enjoyed by judges? Secondly, does the scheme require the making of findings on disputed facts, or as to the law to be applied? Thirdly, is the relevant decision made by reference to a formula or a fairly standard set of criteria? Fourthly, is the decision appealable? Fifthly, if it is, what is the nature of the appeal? Sixthly, is the decision likely, as a legal or as a practical matter to serve as a precedent for decisions in future similar instances? Seventhly, has the legislature expressed a view about the nature of the process involved? Eighthly, is the process to be followed of a kind that has traditionally been undertaken by courts? Ninthly, does the decision relate to pre-existing rights and obligations, or does it create new ones? Tenthly, is the decision enforceable by the maker of it or by the institution of which he or she is a member? And, last, is there any other feature of the process which is historically of an administrative or a non-judicial kind?
Ms Wojciechowska submits, by reference to those indicia: 1. Independence and tenure: having regard to the importance of the right vested in access applicants under the GIPA Act; the nature of the parties to the dispute, including that the agencies holding government information include various emanations of the State of NSW; and the position of unilateral susceptibility of Tribunal adjudicators in relation to those agencies, the exercise of the power given to the Tribunal under the GIPA Act requires independence and tenure traditionally enjoyed by judges; 2. Findings on disputed facts and as to the law to be applied: review under the GIPA Act requires the Tribunal to decide on the applicability of law, including applicability of secrecy provisions; to make findings of fact including the weight to be given to various considerations in favour of or against disclosure; and to determine questions of law; 3. Decision made by reference to a formula or standard criteria: the Tribunal's review under the GIPA Act is complex and multi-staged and requires application of a public interest test, assessment and weighing of claimed public interest considerations in favour of and against disclosure, and depends on findings of facts, a process that requires advanced analytical skills rather than standard criteria; 4. Limited appeal: the Tribunal decisions can be appealed to the Appeal Panel but as of right only on questions of law, and the decisions of the Appeal Panel can be appealed to the Supreme Court on questions of law, but only with leave; 5. Precedent: the Tribunal's decisions under the GIPA Act are of precedential value and are used and perceived as such, for example the Information Commissioner's website and publication on NSW Caselaw; 6. Legislature's view: the legislature's view that the power exercised by the Tribunal under the GIPA Act is judicial in nature is evident from the gradation of reviews contemplated under the GIPA Act including internal review, external review by the Information Commissioner, and review by the Tribunal; the fact of entrusting the review to the Tribunal, a body whose processes mimic those of a court; and the reference in the GIPA Act to a right of appearance in the Tribunal proceedings by certain third parties; 7. Decision relates to pre-existing rights: the decision of the Tribunal pursuant to the GIPA Act does not create new rights but determines the scope of the right to government information under s 9 of the GIPA Act at the time of making a valid access application; 8. Enforceability: any decision made by the Tribunal is enforceable by the Tribunal, including under s 72 of the NCAT Act, the contempt provisions under s 73 of the NCAT Act, and enforcement of money orders as judgment debts; 9. Historically judicial features: the Tribunal can only review a decision on an application under s 100 of the GIPA Act; cannot injunct a person under the GIPA Act; and there is a close resemblance between the Tribunal review process and the judicial process, involving submissions by both sides and legal representation as of right.
In her reply submissions Ms Wojciechowska submits that in making the decision and orders on 9 October 2020 the Appeal Panel was exercising judicial power; and in the costs proceeding it is also exercising judicial power, applying the principle in Stack v Commissioner of Patents [1999] FCA 148 at [32] that a statutory power to award costs in respect of proceedings takes its character from the principal power to which the power to award costs is ancillary.
Ms Wojciechowska further relies on the three criteria for characterisation of a power as judicial stated in Attorney-General (Cth) v Breckler [1999] HCA 28 at [84], that it must be derived from a consideration of what the tribunal is authorised to do, whether its functions purport to deprive those affected of access to the courts for resolution of connected legal controversies, and the extent to which the tribunal's decisions are directly enforceable as the orders of courts typically are. Ms Wojciechowska submits that in determining the internal appeal the Appeal Panel was exercising the same judicial powers as those exercised below; the Tribunal decisions pursuant to the GIPA Act may only be challenged in the Supreme Court on questions of law and with leave only; and the determination by the Appeal Panel is final.
The Commissioner submits that the hearing and determination of the appeal involved the exercise of administrative, and not judicial, power. The Commissioner submits that while judicial power is "insusceptible of comprehensive definition" (Love v Attorney General (NSW) 169 CLR 307, 319), the following principles are relevant: 1. The exercise of judicial power involves the binding and authoritative quelling of controversies between parties, a process conducted independently of the consent of those whose legal rights or obligations are determined by its exercise. Not every binding and authoritative decision which determines a dispute constitutes the exercise of judicial power; 2. An exercise of judicial power determines existing rights and obligations according to law, rather than by the formulation of policy or the exercise of an administrative discretion; 3. While some functions such as determination and punishment of criminal guilt are necessarily judicial, others are neither purely executive or purely judicial; 4. A function may be judicial or administrative in nature depending on the manner of its exercise: if an adjudicative body is not bound by the rules of evidence, and whose procedures are informal, that may tend to indicate that the function is administrative; 5. There are functions which when performed by a court constitute the exercise of judicial power but when performed by some other body, do not.
The Commissioner submits that the decision the subject of the appeal, namely the impugned direction as to listing of the hearing of the administrative review application, was made in the exercise of the Tribunal's power under s 38(1) of the NCAT Act to determine its own procedure. That involved the exercise of administrative power, for the following reasons: 1. The order established the date of the hearing and the manner in which it would be conducted, and did not involve the binding and authoritative quelling of any controversy between the parties, and the Appeal Panel held it was a matter of practice and procedure and did not relate to substantive rights; 2. The making of the direction did not involve the determination of existing rights and obligations according to law, rather involved the exercise of an administrative discretion; 3. A procedural direction is not binding and authoritative in the relevant sense because it is not final; 4. The Tribunal is not bound by the rules of evidence and its procedures are informal, which tends to indicate that its functions at least insofar as case management is concerned are administrative in nature; 5. There is no requirement that the presiding member in determining a matter under the GIPA Act be an Australian lawyer, which is a factor which points against the making of a procedural direction involving an exercise of judicial power, and no member of the Tribunal has tenure; 6. The fact that it is conceivable that a failure to comply with a procedural direction might constitute contempt does not alone mean that the making of a procedural direction involves an exercise of judicial power.
The Commissioner submits that in determining the appeal from the impugned direction, the Appeal Panel was exercising administrative power, notwithstanding that it was called upon to consider whether or not the direction was infected by legal error. Deciding a question of law is not necessarily an exercise in judicial power. While the Appeal Panel can render a binding, authoritative decision independently of the consent of the parties, it does not have the power to issue a "curially enforceable" decision. And while the Appeal Panel must be constituted by at least one Australian lawyer, that would not on its own be sufficient to characterise the power being exercised as judicial.
The Commissioner submits that the costs order sought is consequential on the Appeal Panel's determination of the appeal.

Discussion and findings

It is apparent from the above summary that the parties diverge as to how to frame the issue for determination. Ms Wojciechowska's focus is on the characterisation of the administrative review proceedings initiated when she made her application to the Tribunal under s 100 of the GIPA Act. Her contention is that in those proceedings the Tribunal is exercising judicial power; that as a consequence the Appeal Panel in hearing an internal appeal in those proceedings is also exercising judicial power; and that in determining a costs application it is also exercising judicial power.
The Commissioner, on the other hand, has considered the characterisation of the decision the subject of the appeal, being the procedural direction made as to listing of the hearing of the administrative review proceeding. The Commissioner contends that the power exercised in making that direction was administrative, and not judicial; and that as a consequence, in determining the appeal, the Appeal Panel was exercising administrative power.
The Appeal Panel is satisfied, for the following reasons, that whichever approach to the question is adopted, the Appeal Panel was not exercising judicial power in determining the appeal, and is not exercising judicial power in determining the Commissioner's application for costs of the appeal.
The Tribunal has four kinds of jurisdiction: general, administrative review, appeal (including external and internal appeals) and enforcement: NCAT Act, s 28(2). The application initiated by Ms Wojciechowska under s 100 of the GIPA Act was an application made in the administrative review jurisdiction of the Tribunal, as defined in s 30 of the NCAT Act. Section 30 relevantly provides: 30 Administrative review jurisdiction (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Note - See section 9 of the Administrative Decisions Review Act 1997. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings.
Section 9 of the Administrative Decisions Review Act 1997 (the ADR Act) provides that the Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under that Act of any such decision (or class of decisions) made by the administrator. Section 100 of the GIPA Act, the enabling legislation, confers that jurisdiction on the Tribunal.
In R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374-5; [1970] HCA 8, Kitto J described what was generally involved in the exercise of judicial power: …Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified.
In conducting an administrative review, the task of the Tribunal is "to decide what the correct and preferable decision is having regard to the material then before it": ADR Act s 63(1). While the Tribunal is required by s 63 of the ADR Act to have regard to any relevant factual material, and any applicable written or unwritten law, that is a more limited exercise than the inquiry into the law and facts described by Kitto J. The Tribunal must give effect to any relevant government policy "except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case": ADR Act, s 64.
In an administrative review the Tribunal is undertaking the same task as that of the administrator whose decision is the subject of the review, and in doing so may "exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision": s 63(2). The Tribunal may affirm, vary or set aside the decision, and its decision is deemed to be that of the administrator: ADR Act, s 66. The Tribunal does not have the power to make a binding determination of a breach or contravention of the law; and its decision is not final, and is subject to the internal appeal provisions of Part 6 Div 2 of the NCAT Act, and ultimately to the supervisory jurisdiction of the courts.
The Tribunal is not bound by the rules of evidence, and while its procedures resemble those of the courts, the Tribunal has power to determine its own procedure, and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(1), (2). The Tribunal has limited powers to punish for contempt under s 73 of the NCAT Act, and proceedings for an offence under the NCAT Act or a contravention of a civil penalty provision may only be commenced by the Minister or a person authorised by the Minister: NCAT Act s 75.
An administrative review of the decision under the GIPA Act does not call for the independence and tenure of a kind traditionally enjoyed by judges; and while independent, Tribunal members do not have tenure. There is no suggestion by the legislature that the Tribunal is exercising a judicial power in determining an administrative review under the GIPA Act, that jurisdiction having been conferred on a tribunal, rather than a court. In such a review the Tribunal is not making a determination of existing rights and obligations according to law, but rather is exercising an administrative discretion.
The Appeal Panel is satisfied that in determining an application for administrative review of a decision made by an agency under the GIPA Act, the Tribunal is exercising administrative power, and not judicial power.
Section 30(2)(a) of the NCAT Act confers power on the Tribunal in the exercise of its administrative review jurisdiction to make ancillary or interlocutory decisions. The order made as to the listing of the hearing of the administrative review application was, if a "decision" of the Tribunal as defined in s 5 of the NCAT Act, an "interlocutory decision", being a decision on an interlocutory issue before the Tribunal: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal.
The impugned direction determined when and in what manner the hearing of the substantive proceedings was to take place. That was an interlocutory issue before the Tribunal in the proceedings. The source of the power to make that decision was Part 4 of the NCAT Act, in particular s 38(1) of the NCAT Act which provides that the Tribunal may determine its own procedure in relation to any matter for which the NCAT Act or procedural directions do not otherwise make provision: Wojciechowska v Commissioner of Police [2020] NSWCATAP 239 at [43]. That was not an exercise of judicial power.
The internal appeal jurisdiction of the Tribunal is specified in s 32: 32 Internal appeal jurisdiction of Tribunal (1) The Tribunal has internal appeal jurisdiction over - (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.
An internal appeal against an interlocutory decision of the Tribunal at first instance requires leave of the Appeal Panel; and for any other kind of decision, including an ancillary decision, may be made as of right on a question of law, or on any other grounds with the leave of the Appeal Panel: NCAT Act, s 80(2). The powers of the Appeal Panel in determining an internal appeal are provided in s 81: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
In determining the appeal from the direction as to listing of the administrative review application, the Appeal Panel was not exercising judicial power, for the following reasons. The Appeal Panel must be constituted by at least one member who is an Australian Law: NCAT Act s 27(1)(a). However that is not sufficient to characterise the power being exercised as judicial. Most importantly, in determining the appeal, the Appeal Panel could decide to deal with the appeal by way of a new hearing, exercising all the functions conferred or imposed on the Tribunal at first instance: NCAT Act, s 80(3), 81(2). While the Appeal Panel was required to determine questions of law, that is not of itself an exercise of judicial power. Any opinion reached by it on a question of law is not binding or authoritative, the decision of the Appeal Panel being subject to the right of appeal on a question of law to the Supreme Court, with leave of that court: NCAT Act, s 83. The Tribunal, including the Appeal Panel, remains subject to the supervisory jurisdiction of the Supreme Court.
Section 32(2) of the NCAT Act confers jurisdiction to make an "ancillary decision", which includes a decision to award costs, as defined in s 4 of the NCAT Act: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings.
In Stack v Commissioner of Patents (1999) 161 ALR 531 Drummond J held: 29. Courts exercising judicial power have long had wide discretionary powers to award costs. That, however, does not mean that the costs power is necessarily stamped with an exclusively judicial character. There is authority that powers may be committed to a court which are not themselves exclusively judicial, but which are capable of being administrative in character, in a different context, because they are ancillary to or incidental to the exercise of strictly judicial power. See R v Davison [1954] HCA 46; (1954) 90 CLR 353 at 368. 30. The power to award costs cannot, in my opinion, be described as an essential element of the exercise of judicial power. It is well-established that the common law courts of general jurisdiction had no authority to order costs in the absence of a statute conferring that power on them - see, eg, Garnett v Bradley (1878) 3 App Cas 944 and Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 557 - even though the Court of Chancery long asserted the right to award costs in proceedings before it and this is sometimes described as an inherent power of that Court. (There is a view, however, that the chancery jurisdiction in costs is also statutory in origin: see Andrews v Barnes (1888) 39 Ch D 133 at 139.) 31. Legislatures have not confined the costs power to courts but have long acted to confer it on administrative bodies charged with determining controversies between persons. Some examples in the Commonwealth area of the conferral by the Parliament of this power on a range of administrative bodies are provided by the Administrative Appeals Tribunal's power to award costs in proceedings brought to it under various Acts: see, eg, s 67 the Safety, Rehabilitation and Compensation Act 1988 (Cth) and s 69B the Administrative Appeal Tribunal Act 1975 (Cth); by s 174 the Copyright Act 1968 (Cth), which empowers the Copyright Tribunal to order that the costs of any proceedings before it incurred by any party be paid by any other party and by s 347 the Workplace Relations Act 1996 (Cth), which authorises the Australian Industrial Relations Commission to make orders for costs in certain circumstances in proceedings before it. 32. In my opinion, the true position is that statutory power to award costs in respect of proceedings before a decision-maker, judicial or administrative, takes its character from the principal power to which the power to award costs must always be ancillary: Cominos v Cominos [1972] HCA 54; (1972) 127 CLR 588 at 591 and cf R v Quinn at 10. 33 Whether costs are awarded by a court or some other body, the power to do that will necessarily be ancillary or incidental to some other power exercised by that Court or body. R v Quinn at 10 and Brandy at 267 show that the fact that the power or function to which the awarding of costs is ancillary may involve a determination after a contested hearing inter-parties is not sufficient of itself to stamp the exercise of the principle function as exclusively judicial because that principal power or foundation may be an administrative or even a legislative one. See also Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 414.
The Tribunal's power to award costs is statutorily conferred, in s 60 of the NCAT Act. As held by Drummond J, that power takes its character from the principal power being exercised, the power to award costs being ancillary to that power. The power to award costs of the appeal is ancillary to the Tribunal's internal appeal jurisdiction, and in exercising that power the Appeal Panel is not exercising judicial power.

Application for costs

The general principle with respect to costs of proceedings in the Tribunal is that each party should pay their own costs: NCAT Act, s 60(1). The Tribunal may only award costs where it is satisfied that there are special circumstances that warrant an award of costs: NCAT Act, s 60(2). In determining whether there are special circumstances, the Tribunal may have regard to the factors set out in s 60(3), which provides: … (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant.
"Special circumstances" are circumstances that are out of the ordinary, and are not necessarily exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21. If the Tribunal is satisfied that special circumstances exist, the question then is whether the discretion to make an order for costs should be exercised: Andrew Kennedy Funeral Directors Pty Ltd v Commissioner of Fair Trading [2020] NSWCATAD 195 at [15]. It does not necessarily follow that if one or some of the factors mentioned in sub-section (3) have been made out, that an order for costs should be made: eMove Pty Ltd v Kermode Homes Pty Ltd [2014] NSWCATAP 120 at [11].
The respondent Commissioner submits that there are special circumstances warranting an order for costs, relying on s 60(3)(c), (d), (e) and (f) of the NCAT Act, as follows: 1. The appeal had no tenable basis in fact or law (s 60(3)(c): the appeal did not involve complex legal or factual issues, and this was simply a case where Ms Wojciechowska disagreed with a case management order that was made in the case management powers of the Tribunal. The appeal itself was unmeritorious, and the Appeal Panel agreed with the Commissioner's position that there was no basis for any of the ten grounds identified in the appeal; 2. The appeal was frivolous and lacking in substance (s 60(3)(e)): the application for a stay of the listing direction "or the whole proceedings .." created doubt as to whether the applicant was pursuing the appeal proceedings because they had merit or whether it was an attempt to delay the underlying proceedings from being heard. The fact that the appeal was over a procedural direction that the hearing proceed by telephone during such exceptional circumstances as have been presented by the COVID-19 pandemic was plainly frivolous. The appellant was unable to demonstrate a factual basis for her complaints regarding the conduct of the case conference, and the transcript confirmed that each case management decision made on 21 July 2020 was the subject of discussion and consultation with the appellant, the Commissioner's representative and the Tribunal member; 3. The appeal had no connection with the real issues for determination (s 60(3)(d)): the nature of the appeal had no connection with the real issues for determination in the underlying proceedings, those issues being discrete, and to the extent that any issues with the hearing being conducted by telephone or AVL were to actually produce error or injustice those matters could be challenged by appeal following determination of the underlying proceedings; 4. The appeal was unnecessarily complicated (s 60(3)(d)): the appeal was unnecessarily complicated by a number of factors instigated by the appellant at the expense of the Commissioner, including an application for a stay of the underlying proceedings, the assertion of 10 separate grounds of appeal on the issue of a single case management order, and the filing of voluminous material, which went beyond the question of whether the impugned order should be varied or set aside; 5. Restraining basic case management (s 60(3)(f)): in asking the Appeal Panel to stay the whole underlying proceedings in circumstances where the Tribunal was not listing matters for hearing in person, the appellant was essentially asking the Appeal Panel to indefinitely adjourn the underlying proceedings, which was inconsistent with the Tribunal's guiding principle; and the lodging of the appeal essentially with a view to restraining the basic case management practices of the Tribunal was a waste of the respondent's time and the Appeal Panel's resources.
The Commissioner submits that Ms Wojciechowska has been on notice since 28 August 2020 of the respondent's intention to seek costs in this matter, in the respondent's submissions of 28 August 2020 and 6 October 2020, and at the conclusion of the hearing on 9 October 2020.
Ms Wojciechowska submits that there are no special circumstances that warrant an award of costs against her in favour of the Commissioner: 1. The costs application is an abuse of process, because the Commissioner does not seek to recoup his entire costs; and the costs threats and costs application were harassment, intimidation and bureaucratic torture, the purpose of which is to discourage her from appealing the Tribunal's decisions and pursuing her quest to obtain further evidence of the Commissioner's corruption; 2. The Commissioner has failed to establish any relevant special circumstances: 1. The Commissioner failed to make a genuine offer of compromise, and the notice of intention to seek costs was not a genuine offer of compromise but disclosed the Commissioner's intention to blackmail and intimidate her and consequently its rejection does not amount to any special circumstance; 2. The grounds of appeal were at least fairly arguable and some would win if considered by an unbiased decision maker. The responsibility for the number of grounds of appeal is that of the Tribunal and the Commissioner; 1. There are special circumstances attributable to the Commissioner and/or the Tribunal and/or the State of NSW, such that they must bear her costs of the appeal as well as this costs application; 2. The Commissioner did not win the appeal on any of his arguments, but won only because the appeal was decided by biased decision makers; the Appeal Panel acted for the Commissioner, did not consider most of her evidence, and did not exercise its powers in good faith; and the Commissioner provided false information to the Tribunal; 3. The Commissioner breached his model litigant duties by going back on a promise that the matter would wait until it could be heard in person, argued a view of the law that was not reasonably arguable, claimed that her affidavit of 24 September 2020 was irrelevant, provided false information to the Tribunal that the order under appeal was made during a hearing, and failed to withdraw false information. The Commissioner also did not discharge his duties under s 36(3) of the NCAT Act; 4. The Appeal Panel decision was made without jurisdiction because the Tribunal has no jurisdiction, the Appeal Panel did not give reasons at the time of giving the decision on 9 October 2020 nor within a reasonable time afterwards, and there was bias or apprehended bias of the Appeal Panel members; 5. The appeal was caused by the Commissioner and the Tribunal, because on 21 July 2020 it was the Tribunal itself that decided to conduct the hearing by telephone without her consent; 6. The appeal was brought in the public interest and was in the nature of a test case, which was to result in the Appeal Panel explaining that "just, quick and cheap" dispute resolution requires balancing of all three requirements rather than one of them disregarding "just" and "cheap", to test whether a member could make non-consent orders without a hearing and without an order dispensing with a hearing, to test whether the Tribunal's powers include power to prevent a party from attendance in person, and because the underlying proceedings are in the public interest; and 7. The Commissioner could have merely filed an appearance and not argued the case, thus saving costs.
Ms Wojciechowska submits that the reasons in the substantive appeal should not be used as evidence as they are hearsay, and are unfairly prejudicial as they were made by biased persons who were aware they should have dismissed the appeal. She submits that there are special circumstances that warrant an award of costs against the Commissioner and in her favour, and special circumstances attributable to the Tribunal and/or the State of NSW that warrant a costs order in her favour.
In supplementary submissions provided to the Tribunal on 19 April 2021 Ms Wojciechowska submits that the Appeal Panel decision was made on 9 October 2020, the date of the orders, and the Commissioner is in error in referring to the date the reasons were provided, 17 November 2020. She submits that the impugned direction, which the Commissioner refers to as a "procedural direction", was made in the exercise of a strictly judicial power. Ms Wojciechowska states that the amount she is seeking as her costs is the appeal fee of $435.00.

Discussion and findings

There were 10 grounds of appeal. The Appeal Panel concluded that ground 10 was not a proper ground of appeal. Grounds 1, 2, 5, 6, 7, and 8 related to the power of the Tribunal to make the impugned direction; ground 3 asserted a denial of procedural fairness in the making of that direction; and grounds 4 and 9 related to whether any discretion as to the making of the impugned direction was exercised having regard to relevant considerations.
At [45] the Appeal Panel concluded that there was no basis for the contention that the impugned direction was made without power or contrary to any of the applicable procedural requirements under the NCAT Act. At [52]-[59] the Appeal Panel explained the reasons why there was no denial of procedural fairness in the making of the direction. At [63] the contention that there was a failure to have regard to relevant considerations was rejected.
The Commissioner's Reply to Appeal contended that the grounds as described in the Notice of Appeal did not identify any arguable error made by the Tribunal, and nor did they have merit. The Commissioner accepted that grounds 1, 2, 5, 6, 7 and 8 raised potential questions of law, however contended that those grounds did not disclose any arguable error. While the relative strengths were ultimately found to be in favour of the Commissioner's position, that does not necessarily mean that the appeal had no prospects of success, or was frivolous or lacking in substance, as referred to in s 60(3)(e) of the NCAT Act.
It does not necessarily follow from the rejection of all of the grounds of appeal that the appeal disclosed no arguable error of law or fact, or, to use the words of s 60(3)(c), had no tenable basis in fact or law. The Commissioner accepts that the Appeal Panel did not use the term "no tenable basis" in the reasons for decision.
Section 60(3)(d) refers to the nature and complexity of the proceedings. The Commissioner's position is that relevant to that question is that the appeal had no connection with the real issues for determination, those issues being the question of access to information under the GIPA Act. However, the appeal was a challenge to the making of a case management step in the course of having those proceedings prepared for hearing and determination by the Tribunal, which if it was a "decision", was an interlocutory decision. It is not apparent how the nature and complexity of the underlying proceedings is relevant to whether there are or are not special circumstances warranting an order for costs of the appeal from that case management direction.
Ms Wojciechowska sought a stay of the impugned direction, the hearing of which was listed for 9 October 2020 together with the appeal. The application for a stay was dismissed on 9 October 2020 as part of the orders made dismissing the appeal, and the hearing listed for 20 October 2020 was confirmed. The lodging and hearing of the appeal did not delay the hearing of the underlying proceedings. In those circumstances it is not apparent how the appeal caused an "unnecessary complication" to the proceedings, also said to be relevant to s 60(3)(d) of the NCAT Act.
Further, for the appellant, as a self represented litigant, to file and serve voluminous material would not be out of the ordinary, or of itself constitute special circumstances.
It is also not clear how the lodging of an appeal from a case management direction, or to request the grant of a stay, is of itself inconsistent with the duty of a party to proceedings in the Tribunal to co-operate with the Tribunal to give effect to the guiding principle stated in s 36(1) of the NCAT Act, which is to facilitate the just, quick and cheap resolution of the real issues in dispute. Section 80(2) of the NCAT Act requires leave for an appeal from an interlocutory decision, and as discussed at [64] of the reasons in Wojciechowska v Commissioner of Police [2020] NSWCATAP 239, as a question of practice and procedure any application for leave to appeal had to be approached with restraint. While there are significant hurdles for an appellant in pressing such an appeal, the mere fact of lodging the appeal from a direction which the appellant opposed when it was considered at the case conference, and continued to oppose thereafter, could not of itself constitute a failure to comply with the duty imposed under s 36(3) of the NCAT Act, as contemplated by s 60(3)(f).
The Appeal Panel concludes that while Ms Wojciechowska was unsuccessful on all of the 10 grounds of her appeal, the circumstances are not such as to be special circumstances warranting a costs order against her.
The Appeal Panel is also not persuaded that there is any basis on which to find special circumstances such as to warrant a costs order in her favour, for the following reasons.
Ms Wojciechowska's submissions take issue with a number of matters addressed in the substantive appeal reasons. Her objections to what she submitted was a misdescription of the case conference on 21 July 2020 as a "hearing" and an error in the name of the Commissioner's representative in the transcript provided for the appeal were dealt with at [26] in Wojciechowska v Commissioner of Police [2020] NSWCATAP 239. The authority for the listing of the hearing by telephone, including in the circumstances of the Tribunal's management of its workload having regard to the restrictions imposed as a consequence of the COVID-19 pandemic, was addressed in [42]-[45] of those reasons. Ms Wojciechowska's contention that there was a denial of procedural fairness or a failure to have regard to relevant considerations in how the decision to list the matter for a telephone hearing was made was addressed at [54], and [63] of those reasons. Any asserted error in the Appeal Panel's reasoning on any of those matters is not a relevant matter in determining this costs application, but rather for the exercise of any right of appeal from the decision.
Ms Wojciechowska contends that the Appeal Panel decision was tainted by jurisdictional errors. We do not agree, for the following reasons. Ms Wojciechowska's submission as to the exercise of judicial power is addressed above. We made orders dismissing the appeal and refusing the stay at the conclusion of the hearing on 9 October 2020, stating that written reasons for the decision would be provided. Those reasons were provided, and to the extent that any subsequent request for written reasons is relevant, were provided within the period specified in cl 27 of Sch 1 to the NCAT Act. There is no basis for any submission that there was jurisdictional error. The claim of apprehended bias has been addressed above.
The Appeal Panel does not agree that the costs application is an abuse of process. The Commissioner, as respondent to the appeal initiated by Ms Wojciechowska, is entitled to make an application for costs under s 60 of the NCAT Act; whether or not he could succeed in establishing that there are special circumstances warranting such an order is a separate question. Costs orders are not a punishment to an unsuccessful party but are made to compensate the successful party for the expense occasioned by the proceedings: Latoudis v Casey 1990] HCA 59; Oshlack v Richmond River Council [1998] HCA 11. In the context of proceedings before the Tribunal, this position is modified by the general proposition in s 60(1) that each party is to bear their own costs, and that the Tribunal's power to award costs only arises where special circumstances, as discussed above, exist.

Conclusion

The Appeal Panel is not satisfied that there are special circumstances warranting an award of costs in favour of the Commissioner, or Ms Wojciechowska. The appropriate order is that provided in s 60(1) of the NCAT Act, that each party to these proceedings pay their own costs.
The Appeal Panel orders: 1. The application for an order for costs is refused, and each party is to pay their own costs of these proceedings.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 08 October 2021

Administrative Appeal Tribunal Act 1975(Cth)

Workplace Relations Act 1996(Cth)

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