Wojciechowska v Commissioner of Police

NCAT Appeal Panel|2022-04-01

r File Number(s): 2020/00132948

Reasons for Decision

This is an appeal from decisions of the Administrative and Equal Opportunity Division of the New South Wales Civil and Administrative Tribunal (NCAT), made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
The appellant made an application that Principal Member Simon disqualify herself from presiding in the appeal proceedings. That application was refused, and parties were advised that reasons would be provided for that decision with the final decision. The reasons are provided by Principal Member Simon at the end of these reasons and Senior Member Dubler has read those reasons and considered whether Principal Member Simon should disqualify herself and is also of the view that Principal Member Simon should not be disqualified from presiding on the proceedings.

The Appeal

At the hearing, the appellant objected to this appeal panel hearing the appeal on the basis that Principal Member Suthers had previously refused an application made in the appeal for referral of the proceedings to the Supreme Court. The appellant submitted that for us to hear the appeal the President would need to reconstitute the Tribunal proceedings pursuant to s 52 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The orders of the Tribunal made by Principal Member Suthers on 17 November 2021 note that orders sought by the appellant were refused and oral reasons were given. If it is the case that the refusal was in relation to transfer of the proceedings, that would be an interlocutory matter.
Section 52(1) of the NCAT Act relevantly provides: Reconstitution of Tribunal during proceedings (1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if, before the matter is determined, the member - (a) becomes unavailable for any reason, or (b) ceases to be a member, or (c) ceases to have a qualification required for participation in the proceedings, or (d) is directed by the President not to take part in the proceedings.
Principal Member Suthers has determined the interlocutory matter and on that basis, there is no reason to reconstitute proceedings. Section 52 of the NCAT Act would have only been relevant if Principal Member Suthers had considered the matter, but not determined it. Section 52 is not relevant to these proceedings and on that basis, we are of the view that we can proceed to determine the appeal without need for reconstitution.
Decisions the subject of this appeal are internally appealable, and this appeal can be made as a right on any question of law, or with the leave of the Appeal Panel on any other grounds: see, s 80(1) and (2)(b) of the NCAT Act.
The Notice of Appeal is stamped as received on 22 October 2021 and was lodged within time.
The appellant asserts that her grounds raise questions of law and in addition, she seeks leave to appeal if necessary. In her appeal the appellant initially raised 21 purported grounds of appeal.
One of the grounds of appeal was that the Tribunal had no jurisdiction to review the application as it invokes the exercise of federal judicial power.
These appeal proceedings were heard on 1 April 2022. In the intervening period the sought declarations in the Supreme Court and matters were appealed to the NSW Court of Appeal in relation to the issue of jurisdiction. We awaited determination of those appeals before proceeding with this appeal.
On 17 August 2023, the NSW Court of Appeal held that there was no restriction to non-judicial power, regarding the GIPA Act and dismissed that challenge. However, a challenge as regards claims for damages under s 55(2)(a) of the PPIP Act was upheld. (Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191)
On 18 August 2023, the Appeal Panel ordered the parties to provide any further submissions they intended to rely on in relation to the decision of the Court of Appeal.
The appellant did not file any submissions. On 7 December 2023 the respondent informed the Tribunal that the appellant had not provided any written submissions or indicated whether she continued to press the relevant grounds of appeal. The respondent sought that the Appeal Panel determine the appeal based on the submissions filed to date, as the appellant had sufficient opportunity to file any further submissions on the topic.
It has come to the Appeal Panel's attention that a grant of special leave to the High Court has been granted to the respondent. However, neither party has sought a stay of these appeal proceedings and we have determined to proceed to determine the appeal based on the submissions before us.
The appellant is self-represented. In those circumstances and in accordance with established appeal panel practice, we will follow the principles set out in in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]: 'In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.'
However, we also note the comments of McCallum JA in Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21] that "…[T]here may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point."
The appellant's purported appeal grounds contain many and various types of assertions that cannot reasonably be regarded as grounds of appeal. In these circumstances, it is unnecessary for the full detail of the assertions to be addressed in this appeal: Edwards v State of New South Wales [2022] NSWCA 187 at [58], citing Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44]; Secretary of the Department of Planning, Industry and the Environment v Blacktown City Council [2021] NSWCA 145 at [26].
We have not addressed each of the purported grounds individually, rather, doing our best to understand the grounds of appeal, we have reframed the issues raised by the appellant as best as we could understand them and have addressed what appears to be the substance of the appellant's grounds.

Jurisdiction

In the initial proceedings the appellant has challenged NCAT's jurisdiction to determine the review proceedings on the basis she is resident in Tasmania. We accept that this issue raises a question of law, and that the appellant would not need leave to appeal on this ground.
The appellant has raised the same challenge to jurisdiction in other NCAT proceedings. It should also be noted that the Appeal Panel dealt with a similar application in relation to jurisdiction made by the appellant in Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179 at [3] - [17] and Wojciechowska v Commissioner of Police (No 2) [2021] NSWCATAP 311 at [27] - [59] and Wojciechowska v Commissioner of Police, NSW Police Force [2023] NSWCATAP 34 at [30] - [37]. In those appeals, the relevant appeal panels found that NCAT has jurisdiction to determine the administrative review.
In Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 the NSW Court of Appeal (per Kirk JA, Mitchelmore JA and Griffiths AJA agreeing) concluded at [104] - [105]): The nature of the relevant decision-making functions at issue here point strongly towards characterising the decision-making functions as involving the exercise of non-judicial power. The process employed by the Tribunal tends to point the same way, if not strongly so. The outcome of the Tribunal process is, at most, a decision varying or substituting the decision of the administrator, which decision is treated as a decision of the administrator, and where the burden of the decision relevantly falls on the administrator. Those characteristics also point strongly towards a non-judicial characterisation. Taking these matters together, there are no matters requiring that the powers at issue be characterised as judicial and significant factors pointing the other way. In the result, none of the impugned functions of the Tribunal in reviewing decisions under the GIPA Act involve exercise of judicial power. They may validly be exercised by the Tribunal in proceedings which, otherwise, would fall within federal jurisdiction..
We find no reasons to go behind reasoning of the decisions of the Tribunal or the Court of Appeal. In so far as the issue in relation to jurisdiction has been raised as part of the appeal grounds, those grounds fail because, in our opinion, NCAT did have jurisdiction to determine the proceedings.

Confidentiality Orders

The appellant raises as a ground of appeal that it was a denial of procedural fairness to make the confidentiality orders in the substantive proceedings. She submits she was not notified that the Tribunal would conduct a confidential hearing and that would be a denial of procedural fairness. The appellant was asked at the appeal hearing what submissions she would have made if she had been told about the confidential hearing and despite being asked the question several times, she did not identify the submissions she would have made.
Section 64 of the NCAT empowers NCAT to prohibit or restrict disclosures concerning proceedings and relevantly provides: (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders- … (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
Section 107 of the GIPA Act specifically provides that: (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
We do not have a transcript of the hearing before us, and we do not know the details of the reasons and orders for confidential hearing in the first instance. However, it would have been inappropriate for the Tribunal to allow the appellant the opportunity to inspect material over which confidentiality orders are sought or to expose them in the confidential reasons. In our opinion the confidentiality orders made over the documents and in relation to the hearing and reasons for the decision were appropriate. To do otherwise would have rendered the GIPA application futile.
The Appeal Panel also makes confidentiality orders over same documents as were made in the proceedings at first instance. Given that we have concluded that there is no basis to the contention that the confidentiality orders should not have been made, we are satisfied that it is desirable to make the same orders in the appeal.
It should be noted that the respondent informed the Appeal Panel and the appellant that they had inadvertently filed a confidential affidavit with the documents. The affidavit had not been filed with the Tribunal in the first instance. The respondent did not rely on it in the appeal. On that basis it is of no relevance to this appeal.

Reasons Inadequate

In oral submissions before us the appellant raised that the reasons of the Tribunal were inadequate.
A failure to give proper reasons may amount to an error of law: Stoker v Adecco Gemuale Constructions Pty Ltd [2004] NSWCA 449 per Santow JA at [41]; New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 per Bell P (as His Honour then was) at [66].
The appellant did not articulate the basis for this ground except to make general assertions. For example, the appellant submitted that she was not able to determine from the reasons whether the Surveillance Devices Act 2007 (NSW) applied to the body worn footage. The Tribunal reasons for decision at [197] - [218] dealt with exactly that issue and the Tribunal concluded: 217 As I have explained, in this particular case, the information in issue is the applicant's interchange with Sergeant Mills and Constable Sanderson that occurred on her property, as a result of her complaint on the Community Portal that morning. The compliant made by the applicant also concerned her property where the interchange occurred. That is, the information is primarily her personal information and disclosure of the information would not breach the privacy of any other person. Nor is there any evidence to indicate that the footage is required for any further law enforcement purposes, which is what the exceptions to s 40(1) appear to be directed to: see Surveillance Devices Act, s 40(4A) and Surveillance Devices Regulation 2014 (NSW), cl 4. 218 I note s 40(5) of the Surveillance Devices Act makes provision for protected information to be communicated or published by a police officer 'to any person' with the consent of the respondent, if satisfied of the requirements set out in s 40(6) and (7). These requirements include being satisfied that it is necessary or desirable in the public interest for the information to be communicated or published and that the public interest outweighs any intrusion on the privacy of the person to whom the information relates or any other person who may be affected by its communication. In this case, as I have noted, the communication (information) is a recording of what the applicant said and did during her conversation with police on the day in question.
Having considered the entirety of the reasons for the decision, we do not find that there is an inadequacy decision. The decision is lengthy and carefully formulated.
The appellant also submitted that her submissions in relation to the review were not considered by the Tribunal. It is unclear from the assertions, which submissions were not considered.
This ground must fail.

Actual and apprehended bias

The appellant alleges actual and apprehended bias on the part of Tribunal. This ground raises a question of law, and the appellant does not need leave to appeal on this ground.
Beyond making the assertions, the appellant has failed to demonstrate how the Tribunal was bias.
There is no basis on which we could make a finding of apprehended, or actual, bias on the part of the Senior Member. This ground of appeal must fail.

Witnesses

The appellant submits there was a refusal of the Tribunal to issue summonses which she applied for and material witnesses were not made available. The appellant has provided a series of summonses with the appeal documents.
Attached to the notice of appeal is correspondence from the Registrar dated 6 November 2020. It informs the applicant that Senior Member Higgins refused to direct the Registrar to issue the summonses because the appellant had not demonstrated that John Bromhead, Sergeant Mills and John Sanderson, to whom the summons were directed, are able to provide evidence relevant to the matters in issue in the administrative review.
The Appeal Panel in Lonsdale v University of Sydney [2015] NSWCATAP 277 at [32] - [34] held: 32 Allowing the respondent to summons witnesses (whether to produce documents or to attend) who belong to the staff of the agency (or, in a case of the present type, third parties with whom the agency has business relationships) has the potential to subvert the agency's ability to present its case, and introduce into the process persons who it could have called, but has chosen not to call. There would, we think, need to be strong reasons for allowing a summons to proceed to issue in those circumstances. There must be clarity as to the forensic purpose served by such a step. It is open to the Tribunal or the registrar to form a view as to whether the witnesses to be produced by the agency and the material produced in connection with the decision under review including the documents in dispute) provide sufficient, relevant information to enable it to hear and determine the issues that arise. 33. It would, we think, ordinarily not serve any legitimate forensic purpose to allow a review applicant to call witnesses who are bound by the agency's position (its officers) or who support that position (the third parties). Those persons would often have knowledge of the content of the documents for which protection is sought, and there is a real danger that proceedings might be prejudiced or miscarry because of inadvertent disclosures or provision of contextual information. There might be a need to deal with hostile witness submissions. This all has the potential to make the proceedings more prolix. 34 Decisions allowing the issuance of summonses should be mindful, we think, of the emphasis in the NCAT Act on the adoption by the Tribunal of practices that facilitate the just, quick and cheap resolution of the real issues' in proceedings (s 36(1), the guiding principle), and 'are proportionate to the complexity of the subject-matter of the proceedings' (s 36(4)).
Mr Bromhead is a person associated with the applicant's neighbour, with whom the applicant has a grievance. Sergeant Mills and Mr Sanderson were the attending officers. The appellant has not demonstrated that their evidence would be relevant to the administrative review application in relation to a GIPA application.
The applicant has failed to identify a question of law in relation to this ground.

Leave to Appeal

Having considered the grounds of appeal raised by the appellant we find no question of law arises.
We also find no basis to grant leave to appeal. The grounds raise no issues of principle, no questions of public importance or matters of administration or policy. The grounds do not demonstrate an injustice which is reasonably clear or an error that is plain, readily apparent, or concerning. Many of the submissions made by the appellant are unsupported and amount to no more than assertions.
For those reasons leave to appeal is refused and the appeal is dismissed.
The appellant alleges contempt by solicitors from the Crown Solicitor and seeks orders for the respondent to inform the Tribunal if certain police officers are still employed by NSW police officers. Those are not appeal grounds and the appeal panel does not propose to take any further actions in that regard.

Costs

The respondent foreshadowed that they may seek costs if the appeal was unsuccessful. The respondent is to advise the Tribunal and the respondent by 7 October 2024 if they are making an application for costs.

Orders

Accordingly, we make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The respondent is to inform the Tribunal and the appellant by 7 October 2024 if they are making an application for costs.

Application to disqualify - Principal Member Simon

The appellant sought at the outset of the hearing that I disqualify myself from hearing the matter. The applicant alleges actual bias. The basis for the disqualification relates to an order I made on 6 December 2021, on the papers, in unrelated proceedings 2019/00368647, involving the same parties.
In those proceedings, I refused an application made by the respondent, the Commissioner of Police, for the matter to proceed to be determined without further directions. My orders and reasons were as follows: 1. The matter is listed for directions on 14 December 2021 at 2:30PM. Reasons: The respondent has indicated that the matter may proceed to be determined without further directions. The applicant objects. The matter is listed to consider any further directions (if any) which need to be made so that the matter can proceed to final hearing.
On 13 December 2021, the appellant sought that I amend my reasons pursuant to s63 of the NCAT Act for the following reasons and relevantly stated: Requested amendment: Deletion of "The applicant objects." Proposed text of the reasons following the amendment: "Reasons: The respondent has indicated that the matter may proceed to be determined without further directions. The matter is listed to consider any further directions (if any) which need to be made so that the matter can proceed to final hearing." Reasons for the request: the Applicant did not object. I will rely on this letter in any cost proceedings related to or in connection with this matter . I believe that Principal Member T. Simon entered the sentence "The applicant objects" not in good faith, but in order to enable further harassment of the Applicant with costs proceedings. Accordingly, I consider that Principal Member Simon does not enjoy any protection granted by s 89(3) of the CAT Act. If I suffer any adverse consequences as a result of this falsification of the public record, I will seek a costs order against Principal Member including but not limited to pursuant to s 60 of the CAT Act or s 98 of the Civil Procedure Act 2005 (NSW).
On 14 December 2021, I refused the appellants request to amend my reasons. On 15 December 2021, the applicant sought reasons for my declining to amend the reasons.
The appellant alleges I entered false information in my orders and that I refused to change the orders or provide reasons when requested.
The decision I made on 6 December 2021 was based on an email from the respondent dated 2 December 2021. The appellant had also sent an email in which she referred to the request of the respondent as a "meritless proposition" and asked for the Tribunal to advise if they sought further comment and to "otherwise, please relist the matter for directions as ordered by SM Goodman." It was on that basis that I had stated that the applicant objects in the reasons provided on 6 December 2021 and why I refused to amend my reasons.
The appellant also refers to a hearing on which I presided on 17 December 2021. She states that I allowed documents of the respondent to be admitted in those proceedings against her objections.
Having considered the request to recuse myself, I am not of the view that there is actual or apprehended bias which would disqualify me from hearing the appeal.
The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is objective: "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Having considered the appellant's submissions, as reproduced above, and the test for disqualification, I do not find that I should disqualify myself from the Appeal Panel determining the application. The basis for the appellant's assertions in relation to my alleged breaches and entering false information are unsupported. The decisions I made in the other proceedings were interlocutory matters, dealing with how the matter should proceed and what can be considered. Nothing in those decisions has any logical connection with the issues required to be determined in this appeal. On that basis the request to disqualify myself from hearing the appeal is refused.

Orders 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The respondent is to inform the Tribunal and the appellant by 7 October 2024 if they are making an application for costs. 4. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the material filed by the respondent on a confidential basis is prohibited. 5. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the material filed by the respondent on a confidential basis, to the appellant is prohibited.

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: 01 October 2024

Surveillance Devices Regulation 2014(NSW)

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (15)