Wojciechowska v Commissioner of Police, NSW Police Force - [2023] NSWCATAP 104 - NSWCATAP 2023 case summary — Zoe

NSWNSWCATAP

Wojciechowska v Commissioner of Police, NSW Police Force

[2023] NSWCATAP 104

NCAT Appeal Panel|2023-04-12

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Source facts

Court

NCAT Appeal Panel

Decision date

2023-04-12

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

REASONS FOR DECISION

This is an application for costs made by the respondent following our substantive decision dismissing the appeal: Wojciechowska v Commissioner of Police, NSW Police Force [2023] NSWCATAP 34. The appeal was from a decision of the Tribunal determining an application for review of a decision of the respondent made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
In the reply submissions made by the respondent on appeal, the respondent had foreshadowed an application for costs if the appeal was dismissed. In our orders, we made directions for the filing and serving of written submissions and documents in relation to any costs application, and for the written submissions to address whether a hearing should be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and the issue of costs determined on the papers.
The respondent sought to obtain the recording of the appeal panel hearing and subsequently sought an extension of time in relation to the timetable for exchange of material regarding the costs application. The extension of time was granted.
On 28 February 2023, the Tribunal received written submissions from the respondent together with an affidavit affirmed by Andrew Bell who is a solicitor in the Crown Solicitor's Office and the sound recording of the appeal hearing. Our directions required the appellant to provide any written submissions and material which the appellant intended to rely on in relation to the costs application within seven business days of the receipt of the respondent's material.
No further documents were received from either party.
On 29 March 2023, the Appeal Panel registry sent the following email to the parties: "The Tribunal received the submissions and material that the respondent is relying on in the application for costs on 28 February 2023. The Tribunal has no record of receiving any submissions or documents from the applicant in response. If the applicant has provided documents or submissions, she is to advise the Registry by 5pm 30 March 2023. Otherwise, the Appeal Panel will proceed to make a decision in relation to the costs application after that date."

[4]

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

The respondent submits that the appellant's appeal grounds were weak, and they had no tenable basis in fact or law.
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.
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.
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.
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].
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].
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.
The appellant raised the same issue in relation to the confidentiality of material before us.
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].
It is our view, almost all the appeal grounds that were raised by the appellant were weak from the outset.
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.

[6]

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

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.
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].
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.
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.
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.

[7]

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

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. …
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.
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.
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.
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.
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.
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.
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.
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.

[10]

Fixed Costs

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.
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.
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.
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.
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.
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.
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.
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.

Wojciechowska v Commissioner of Police, NSW Police Force

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Judgment (13 paragraphs)

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Cases Cited (12)

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