Wojciechowska v Commissioner of Police, NSW Police Force

Dispensing with the hearing

1. In the directions made by us in relation to the costs application, parties were provided with the opportunity to make submissions in relation to dispensing with the hearing as is required by s 50 (3) of the NCAT Act.
2. Neither party sought an oral hearing on the issue of costs.
3. The parties have had an opportunity to make submissions in relation to a hearing on costs. Having read the respondent's submissions and material in relation to the costs application and given that there has been no response filed by the appellant, we are satisfied that it is appropriate to deal with the application for costs on the papers. The issues for determination can be adequately determined in the absence of the parties by considering the submissions and other documents provided to the Tribunal (NCAT Act, s 50(2)). We are of the view that a hearing would cause the parties to incur further unnecessary costs. Accordingly, we have made an order under s 50(1)(c) of the NCAT Act dispensing with a hearing.

Costs of the Appeal

1. Rule 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) NCAT Rules relevantly states: … (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
2. Under s 60 (1) of the NCAT Act, parties bear their own costs. Under s 60 (2) of the NCAT Act, a cost order can be made if "special circumstances" are established.
3. The respondent makes submissions that there are special circumstances which would warrant the making of a costs decision in the respondent's favour. For the reasons that follow, we are satisfied that there are special circumstances in this appeal which warrant the making of a costs order.
4. Section 60 (3) of the NCAT sets out the matters to which the Tribunal may have regard to in respect of "special circumstances". The respondent relies on para (c), (d), (e), (f) and (g) of s 60(3). We have dealt with each of those matters in turn.

Section 60(3) (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

1. The respondent submits that the appellant's appeal grounds were weak, and they had no tenable basis in fact or law.
2. The notice of appeal set out 35 purported grounds of appeal. As we noted in at [29] of our reasons for decision in the appeal, the appellant herself agreed at the hearing that many of the appeal grounds were repetitive. While we decided to group the grounds and deal with them as issues, the respondent still needed to address most of the grounds.
3. Despite the directions of the appeal panel, the appellant did not provide detailed written submissions in relation to each of the grounds, rather she elaborated on the grounds in oral submissions at the appeal hearing, leaving the respondent having to decipher, prior to the hearing, what many of the appeal grounds were. Although the appellant asserted that the appeal grounds raised questions of law and she sought leave to appeal, not a single ground raised by the appellant succeeded.
4. The appellant also sought a transfer of the appeal proceedings to the Supreme Court and sought for Principal Member Simon to recuse herself from presiding in the appeal proceedings. Those applications were refused.
5. Many of the submissions made by the appellant in relation to the grounds of appeal were unsupported and amounted to no more than assertions: see [89] of the reasons for decision. One of the grounds raised by the appellant was that there were typographical errors in the primary decision under appeal which would justify allowing an appeal. We rejected that ground: [54]-[56]. We also rejected the appellant grounds that the Senior Member who heard the review applicant was biased and found that there was "no basis on which we could make a finding of apprehended, or actual bias on the part of the Senior Member": [64].
6. The appellant also raised a ground that she had been denied procedural fairness and we determined that in circumstances where the appellant herself had left the primary hearing, "it cannot be said she was denied the opportunity to cross examine witnesses, to be heard or to object." [70]. Similarly, in relation to the grounds raised relating to no evidence, a wrong inference, that the onus was reversed and that there had been a tampering with evidence, we determined there was nothing to substantiate those appeal grounds as they were raised: [78], [80] and [82].
7. The appellant also raised a ground regarding confidentiality orders that were made by the Tribunal in relation to certain material. In that regard we held at [51]: It would also have been inappropriate for the Tribunal to allow the appellant the opportunity to inspect material over which an application is being made seeking confidentiality orders. To do so would render the confidentiality application futile.
8. The appellant raised the same issue in relation to the confidentiality of material before us.
9. The appellant persisted in a ground directed to misconstruction of s 53 of the GIPA Act and despite that assertion, the appellant could not demonstrate that an error of law had arisen in that regard: [86].
10. It is our view, almost all the appeal grounds that were raised by the appellant were weak from the outset.
11. Despite the brief submissions the appellant provided in relation to each ground, the respondent addressed each ground as the respondent understood them in the reply to the appeal. Even after receiving that response, the appellant pressed almost all the grounds.

Section 60(3) (d) The nature and complexity of the proceedings

1. While the nature of the appeal processing should not have been complex, the appeal proceedings were made complex because of the number of grounds that were raised, and pressed, by the appellant.

Section 60(3) (e) The proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance.

1. Both in the primary proceedings and on appeal, the appellant submitted that the Tribunal lacked jurisdiction to determine the administrative review proceedings. That claim was made on the basis that the appellant is resident in Tasmania. Prior to lodging the appeal, the appellant had already raised the same issue in other proceedings. The appeal ground had already been rejected by the Appeal Panel (differently constituted) in Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179 and at first instance in Wojciechowska v Commissioner of Police [2020] NSWCATAD 310 at [15]-[20]. Those proceedings were raised in the respondent's reply to the appeal and the respondent stated: Continuing to re-agitate the same argument in multiple proceedings is an abuse of process.
2. Prior to the hearing of the appeal before us, the Appeal Panel (differently constituted) had further rejected, on 8 October 2021, the same ground in relation to jurisdiction (in relation to a costs application) in Wojciechowska v Commission of Police (No 2) [2021] NSWCATAP 311 at [27]-[40].
3. The appellant did not distinguish her position in this appeal from the two prior appeal panel decisions and simply re-agitated the same issue which she had raised previously. As we noted at [32] of our reasons for the decision, it was always open to the appellant to file an appeal of the appeal panel decision in Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179. Further, the initiating applications and appeals were made by the appellant and it has always been open to the appellant to commence the proceedings elsewhere, if she was of the view that NCAT did not have jurisdiction to determine the proceedings.
4. It is our view that the appellant's claim that the Tribunal and appeal panel lacked jurisdiction to deal with her administrative review application was lacking in substance. In circumstances where the claim had been rejected in other proceedings commenced by her, the appellant was on notice in that regard, because of the previous decisions made. Her persistence in making the same claim in this appeal, without taking into account the reasons why the claim had been rejected in other proceedings, is a factor relevant to the question of whether special circumstances exist.
5. Given our comments in relation to the overall merits of the grounds of appeal, discussed above, we are of the view that the appeal overall was lacking in substance.

Section 60(3) (f) Refused or failed to comply with the duty imposed by section 36(3) of the NCAT Act

1. Section 36 of the NCAT Act states: (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. …
2. The appellant was self-represented. However, the appellant has experience in NCAT and is familiar with the processes of the Tribunal. The appellant has been involved in a number of administrative review and appeal proceedings in the Tribunal. That includes the appeal proceedings in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 and Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179.
3. The respondent has previously made costs applications against the appellant in other proceedings including in Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAD 310 and the appeal decision, Wojciechowska y Commissioner of Police (No 2) [2021] NSWCATAP 311. On that basis the appellant must at least been aware of the possibility that the respondent could make a costs application. As noted above, it was foreshadowed in the respondent's reply to the appeal.
4. In our view and given the appellant's experience in this Tribunal, the appellant has failed to comply with her obligations under s 36 of the NCAT Act. The appellant continued to press her appeal after receiving the reply from the respondent and in relation to the question of jurisdiction, which had been decided in other appeal proceedings.
5. Further, on 17 December 2021, the appellant sent two emails seeking disqualification of Principal Member Simon from presiding on the appeal and a second document titled "Orders asked by the Appellant", seeking further interlocutory orders for the referral of questions to the Supreme Court. It is noted that a large part of appeal hearing was used to deal with those initial applications and both those applications were refused.
6. At various times in the appeal before us, the appellant failed to progress the appeal in an orderly way. The appellant raised objections such as Principal Member Simon was "manipulating the public record" and was dishonest. The appellant made unsubstantiated allegations of corruption about the Senior Member who heard the proceedings initially. The appellant alleged that Senior Member Lucy was a "yes woman" who did not speak and was at the hearing merely to agree with Principal Member Simon.
7. In our reasons for decision in the substantive appeal we stated at [62]: It is apparent from the transcript that the applicant repeatedly alleges bias in circumstances where a decision is made that is not in her favour. The appellant is not willing to accept the decision of the Tribunal and move on with the hearing.
8. Similarly, in the hearing before us, the appellant wanted our decision in relation to jurisdiction before moving on with the appeal. At [71] of our reasons for decision we stated: The Tribunal was under no obligation to provide a decision or reasons in relation to the whether the Tribunal had jurisdiction immediately. The appellant demanded the same thing of us in the appeal hearing.
9. The appellant was required to file written submissions in support of the appeal by 18 October 2021. She did not do so. That non-compliance required the respondent and the Tribunal to decipher the appellant's grounds of appeal and necessitated a longer time for the oral hearing.

Section 60(3) (g) Any other matter that the Tribunal considers relevant.

1. We are also alive to the fact that these were initially administrative review proceedings under the GIPA Act and that the objects of that GIPA Act are set out as follows in s 3: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. Parties should not be deterred from acting to access government information from agencies because they are concerned that they may be bound to submit to a costs order on an application for review of a decision by the Tribunal or on appeal. An award of costs should not act as a deterrent for applications for administrative review. However, we are also mindful that every costs application must be considered on its own merits.

Conclusion on Special Circumstances

1. Having considered the respondent's submissions, we are satisfied that the matters raised by the respondent amount to special circumstances which warrant the making of a costs order in favour of the respondent. In particular: 1. The appellants appeal was weak. Many of the appeal grounds were lacking in substance. 2. The appellant contributed to making the appeal complex by raising and pressing so many grounds of appeal, even after receiving the respondent's reply to the appeal which should have alerted her to the weaknesses in many of her grounds. 3. The appellant, although self-represented, is experienced in the Tribunal. 4. The appellant failed to comply with the duty imposed by section 36(3) of the NCAT Act and hampered the progress of the appeal proceedings by failing to provide written submissions and by her conduct at the appeal hearing before us.
2. Even taking into account the objects of the GIPA Act, and the object in the NCAT Act to ensure that the Tribunal is accessible (s 3(c)), we are of the view that those factors amount to special circumstances.

Fixed Costs

1. The respondent is seeking a costs order for a fixed amount of $8,000. In Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294, Beazley P, Meagher and Payne JJA set out the principles in relation to a fixed costs order at follows [12] - [18]: [12] The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002) NSWCA 213 at 742-723 (21)-(22); Beach Petroleum NL v Johnson (No 2)(1995) 57 FCR 119 at 123. [13] The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamad v New South Wales (2011] NSWCA 375 at (818) per Beazley JA (Giles and Whealy JJA agreeing). [14] A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; (1999) FCA 673 at 5 (16); Penson v Titan National Ply Ltd (No 3) (2015] NSWCA 121 at [7]. [15] The courts have typically applied a discount in assessing costs on a gross sum basis: Hamad v New South Wales at (814]. ... [18] The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamad v New South Wales at [816]-[817] is apposite.
2. The respondent states that the following factors favour making a lump-sum order: a. The pattern of litigation in this appeal, and all the other proceedings cited by the Appeal Panel between the parties, evidence that a costs assessment process would be lengthy, complex, and expensive; b. The sum sought is modest; c. The Appeal Panel is well-placed to adjudge the costs on the materials available, as it has all the invoices issued by the Crown Solicitor's Office and a detailed understanding of the history of the matter and the appeal grounds. It also accounts for the erroneous invoicing of a sound recording request ($45) which should have been invoiced to the Commissioner on a different file involving the appellant.
3. The respondent also submits that if the appeal panel is not minded to award costs in the amount sought by the Commissioner, it should award a lesser amount as it sees fit as that course does better justice as between the parties than declining to award costs at all.
4. In his affidavit, Mr Bell states that the respondent has incurred legal costs in the amount of $9,133.45 (including GST). Attached to that affidavit are invoices in relation to those legal costs. The respondent seeks a lump-sum costs order in the amount of $8,000, which the respondent submits, represents a discount of more than $1,000. The respondent submits that amount would comfortably account for any discount eventuating from formal assessment.
5. We are of the view that costs claimed are a modest sum and that formal assessment of the costs would only add to the costs burden on the respondent and the costs will become disproportionate if they are referred to assessment.
6. Having considered the affidavit of Mr Bell and the invoices attached to it, we are satisfied that we can determine an appropriate sum of the costs and having considered the costs we are satisfied that the costs which have been incurred are reasonable.
7. The degree to which there should be any deduction made to the costs is matter of impression. In Huang v Drumm [2017] NSWSC 1006, Adamson J at [10] considered that a 20% deduction for solicitor's fees was reasonable. In Starr-Diamond v Diamond (No 4) [2013] NSWSC 811, Slattery J ordered a 20% reduction.
8. A discount of $1,133.45 is a deduction of a little over 12%. In line with the authorities, we have instead decided to deduct an amount of 20% from the legal costs of the respondent. That amounts to a deduction of $1,823.69. On that basis we award a lump sum of $7,309.76 to the respondent.

ORDERS

1. The Appeal Panel makes the following orders: 1. An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The appellant is to pay the respondent an amount of $7,309.76 on or before 5 May 2023.

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

Amendments 12 April 2023 - 12 April 2023 - "in relation" removed from first sentence in paragraph [1]. 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: 12 April 2023