Wojciechowska v Commissioner of Police, NSW Police Force [2026] NSWCATAP 114;

Donohoe v Albulario [2025] NSWSC 9

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [8]; [2000] HCA 63; 205 CLR 337

Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Jones v Dunkel (1959) 101 CLR 289; [1959] HCA 8

Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32

Kudrynski v Orange City Council [2024] NSWCA 33

Lonsdale v University of Sydney [2015] NSWCATAP 277

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

New South Wales v Wojciechowska [2025] HCA 27

O'Brien v Women's Housing Company Limited [2026] NSWCATAP 3

QP v RP [2014] NSWCATAP 59

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15

Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Ros v Commissioner of Police [2020] NSWCATAP 70

STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98

Theophilas v Chief Commissioner of State Revenue [2016] NSWCATAP 111

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Wojciechowska v Commissioner of Police [2022] NSWCATAD 70

Wojciechowska v Commissioner of Police, NSW Police Force [2024] NSWCATAD 46

Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191

Wu v Fairfield City Council [2023] NSWCATAP 288

Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85

Commissioner of Police, NSW Police Force (Respondent)

[2024] NSWCATAD 46

1. On 26 February 2024 the Tribunal affirmed a decision of the Commissioner of Police to refuse to deal with Ms Wojciechowska's application for access to certain information. On 26 March 2024 Ms Wojciechowska filed a Notice of Appeal seeking to internally appeal the Tribunal's decision.
2. Ms Wojciechowska is the appellant in the appeal proceeding and was the applicant in the first instance proceeding before the Tribunal, while the Commissioner is the respondent in both proceedings.
3. For the following reasons we have decided that the appeal should be dismissed.

1. On 8 March 2023 the appellant applied for access to certain information under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act") said to be held by the respondent ("access application").
2. On 14 April 2023 the respondent decided to refuse to deal with the appellant's access application on the basis that it would require an unreasonable and substantial diversion of the respondent's resources. On 29 September 2023 the appellant applied for administrative review of that refusal decision.
3. On 16 October 2023 the Tribunal conducted a case conference and made the following orders:

"(1) The respondent is to file and serve their evidence and material relied upon, on or before 4 December 2023;

(2) The applicant is to file and serve the evidence and material that they rely upon, including notice of any witnesses required for cross-examination at hearing and submissions as to why the matter is suitable to determine on the papers, on or before 29 January 2024;

(3) The respondent is to file and serve a reply (if any) and also to file and serve submissions as to whether the matter is suitable to determine on the papers. Such material to be filed and served on or before 12 February 2024;

(4) Paulina Wojciechowska is allowed to be represented by agent: Krzysztof Bolejko pursuant to s 45(1)(b)(i) of the Civil and Administrative Tribunal Act 2013 for today's case conference;

(5) The proceeding is listed for hearing on 21 February 2024 at 10:00am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for three hour(s) in person. Leave to applicant to appear at hearing by AVL as they continue to reside interstate. This date may be vacated if allocated Member determines in Chamber in week commencing 12/02/2024 that the matter can be adequately dealt with in the absence of the parties (on the papers); and

(6) Notes: The parties note and agree that at present there is no evidence before the tribunal to indicate that the application for administrative review has been lodged out of time. (If there was evidence then the matter could only be one day out of time). On this basis the respondent indicated that they would not press the lateness or oppose any order under s 101(4) of the GIPA Act 2009 - should at some future time the need for such an application by the applicant become apparent.

(7) Notes: Matter to be referred to allocated member on or as soon after 12 February 2024 to determine in chambers whether matter can be dealt with in the absence of a hearing. If so, the hearing date of 21 February 2024 can be vacated."

1. Those 16 October 2023 orders were amended by the Tribunal on 7 December 2023 to allow a three day extension of time.
2. On 14 February 2024 Senior Member Riordan, who also determined the substantive proceeding, made the following orders:

"1. The parties having been given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and being satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.

2. The hearing listed on 21 February 2024 is vacated."

1. On 26 February 2024 the Tribunal determined the substantive proceeding, making an order that "The decision under review is affirmed" and publishing reasons: Wojciechowska v Commissioner of Police, NSW Police Force [2024] NSWCATAD 46.

1. An appellant is entitled to internally appeal the decision under appeal on any question of law or, with the leave of the Appeal Panel, on "any other grounds": s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act").
2. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]- [40] ("Cusumano"), the Appeal Panel set out the authorities and principles concerning questions of law within s 80 of the NCAT Act, including:

(1) Absent leave to appeal, the question of law is the subject matter of the appeal and the question of law should be articulated with precision;

(2) A question of law means a pure question of law;

(3) A "pure question of law" does not depend on facts not found;

(4) A mixed question of fact and law is not a question of law.

(5) An appeal is "on" any question of law and must not be hypothetical or arid; and

(6) An appeal is against orders and not reasons.

1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ("Prendergast") at [13], the Appeal Panel identified a failure to afford procedural fairness as a question of law. In Cusumano (at [32(3)]), after summarising potential questions of law identified in Prendergast the Appeal Panel listed a number of further questions of law and considered a question of law could include bias (actual or apprehended):

"Whether the Tribunal's decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question: Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) 643."

1. It may be appropriate and necessary, in an internal appeal when a question of law arises as to whether proceedings were procedurally fair, to make findings about what occurred in the proceedings: Donohoe v Albulario [2025] NSWSC 9 where Basten AJ observed at [33]:

"To the extent that there is a fact/law dichotomy, the facts which are not to be reviewed by the appeal court dealing with a question of law are the facts relevant to the matter in dispute. There is a categorical distinction between the facts in dispute (what part of the building was completed?) and facts relating to the composition or conduct of the Tribunal." (footnote omitted)

1. In an internal appeal, an appellant must demonstrate that either an error was made on a question of law, or that leave to appeal should be granted. It is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: Brahmbhatt v Osorio [2023] NSWCATAP 188 at [28].
2. The Appeal Panel has a discretion to grant leave which will generally only be exercised in the following circumstances: Collins v Urban [2014] NSWCATAP 17 ("Collins v Urban") at [84(2)]:

"Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, (citations omitted)"

1. We proceed on the basis of those legal principles.

1. The "Grounds of Appeal" attachment to the Notice of Appeal of 24 March 2024 set out four grounds of appeal as follows:

"Grounds of Appeal

Please note some errors outlined below operate together and/or overlap

(1) Denial of procedural fairness due to:

- actual bias of SM Riordan;

- apprehended bias of SM Riordan and the NCAT;

- breach of the fair hearing rule;

- no sufficient notice that the hearing would be vacated.

(2) The Tribunal below had no jurisdiction to review the Applicant's application as its review by the Tribunal involves the exercise of federal judicial power.

(3) The Tribunal proceeded ultra vires due to determining the matter without a hearing. This resulted in inability to cross-examine the witness.

(4) Acting without jurisdiction (all orders made without jurisdiction).

1. On 15 September 2025 the appellant filed "Amended Grounds of Appeal" with a further five grounds of appeal and additions underlined, as follows:

"Amended Grounds of Appeal

Please note some errors outlined below operate together and/or overlap

(1) Denial of procedural fairness due to:

(a) - actual bias of SM Riordan;

(b) - apprehended bias of SM Riordan and the NCAT;

(c) - breach of the fair hearing rule;

(d) - no sufficient notice that the hearing would be vacated.

(2) The Tribunal below at the division level had no jurisdiction to review the Applicant's application as its review by the Tribunal involves the exercise of federal judicial power.

(3) The Tribunal at the division level proceeded ultra vires due to determining the matter without a hearing. This resulted in inability to cross-examine the witness.

(4) Acting without jurisdiction (all orders made without jurisdiction).

(5) In the alternative to ground (2), the Tribunal at the division level purported to exercise judicial power, instead of conducting merits review.

(6) In the alternative to ground (2), the NSW Police Force did not provide the Tribunal at the division level with all the documents relevant to the merits review.

(7) The Tribunal at the division level erred in assigning any weight to the unsworn statement of Ian Steptoe.

(8) Senior Member Riordan did not act in good faith.

(9) In the alternative to grounds (1)(a), the NCAT engaged in misleading and deceptive conduct in trade or commerce by supplying the appellant with the services by Senior Member Riordan."

1. During the appeal hearing on 16 October 2025, under objection from the respondent, the appellant was granted leave to amend the Notice of Appeal to rely on the amended grounds of appeal set out above, on the basis the respondent was on notice of the amended grounds of appeal and had addressed those grounds of appeal in his written submissions.
2. Also, in oral submissions at the appeal hearing the appellant sought to include a further ground of appeal, appeal ground 10, namely that the respondent failed to discharge its onus. The Appeal Panel also granted leave for the appellant to amend the Notice of Appeal to rely on further appeal ground 10.
3. In order to afford procedural fairness to the parties, particularly the respondent following the late raising a further ground of appeal, at the conclusion of the hearing the Appeal Panel made orders providing an opportunity for the respondent to provide further written submissions regarding further appeal ground 10 and related issues by 27 November 2025 (extended by consent on 28 November 2025 to 18 December 2025) and for the appellant to reply by 22 January 2026.
4. In oral submissions at the appeal hearing the appellant indicated she no longer pressed appeal grounds 1(a) and 8, relating to issues of actual bias. As a result, the Appeal Panel will not consider those grounds in this decision.
5. The appellant did not provide written submissions in relation to each of the grounds; instead, she elaborated on the amended grounds of appeal (including ground 10) in oral submissions at the appeal hearing.
6. Where an appellant is legally represented, the appellant is expected to identify questions of law with some precision, where it is asserted that the Tribunal made an error on one or more questions of law: STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 at [14]- [27]; Theophilas v Chief Commissioner of State Revenue [2016] NSWCATAP 111 at [24]. We do not apply this principle in this appeal because the appellant represented herself.
7. However, the appellant is a legal practitioner practising in another State of the Commonwealth. As a result, we also do not adopt the "more generous or benevolent approach" endorsed by the Court of Appeal (Griffiths AJA, Meagher and Kirk JJA agreeing) in Kudrynski v Orange City Council [2024] NSWCA 33 at [50]- [51] to discern questions of law in this appeal because the appellant is not a self represented litigant without legal qualifications or experience.
8. As was stated by the Appeal Panel in O'Brien v Women's Housing Company Limited [2026] NSWCATAP 3 at [131]:

"In dealing with the appeal grounds and submissions, the Appeal Panel is not required to engage with every argument or issue raised if the arguments are repetitive, overlapping, or irrelevant to the disposition of the appeal (Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 at [276] and [278]; Boensch Trust v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]- [8])."

1. Applying the same approach, given the overlap between the grounds of appeal, rather than addressing each ground of appeal individually, we have addressed each of the substantive issues raised by the appellant and deal with each of those in turn below.
2. Further, at the conclusion of oral submissions at the appeal hearing the appellant submitted the Appeal Panel should review for itself the Tribunal's decision for error. We decline to do so because of the appellant's legal qualifications as discussed above (which should mean she is able to identify legal error to some extent) and potential unfairness to the respondent in adopting such a course.

1. The Notice of Appeal of 14 March 2024 specified the Tribunal's decision of 26 February 2024 as the decision the subject of the appeal and the 26 February 2024 published decision was attached to the Notice of Appeal.
2. While the Tribunal's decision to determine the matter without a hearing was not specified in, nor attached to, the Notice of Appeal, the decision to vacate the hearing and determine the matter "on the papers" was clearly the subject of some of the appellant's grounds of appeal. On that basis at the appeal hearing the Appeal Panel granted leave for the Notice of Appeal to be amended to include the Tribunal's decision of 10 February 2024 as a decision subject to this appeal.
3. The Appeal Panel also, to the extent necessary, extended time and granted leave for the making of an appeal against the Tribunal's orders of 10 February 2024 in these appeal proceedings.

1. The appellant sought to provide additional evidence in the appeal, being an affidavit sworn by the appellant on 11 September 2025.
2. A party seeking to rely on further evidence in an appeal may only do so with the leave of the Appeal Panel: QP v RP [2014] NSWCATAP 59 at [34]- [37]. The principles relevant to a grant of leave to rely on further evidence in internal appeals were set out in Ros v Commissioner of Police [2020] NSWCATAP 70 at [33]:

"There are a number of other authorities which set out the principles on which the Appeal Panel might consider an application for admission of further evidence. Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25]..."

(1) Personal and professional details of the appellant.

(2) A short history since 2019 of the appellant's issues with the respondent and other NSW agencies by way of background to the access application the subject of these proceedings.

(3) In the nature of submissions as to the appellant's views and criticisms of the Tribunal, the courts, and the respondent as well as to allegations as to collusion (e.g. at paragraphs 11 and 23).

(4) Estimates as to the costs of various proceedings to which the appellant has been a party including the costs of the Tribunal and the respondent as well as comparisons to support the appellant's submission, as we understand it, that a relevant consideration for the Tribunal and the respondent in respect of the proceedings is that it would be cheaper to provide the documents than oppose access on the basis that to do so is an unreasonable diversion of resources.

(5) Assertions of bias of the Tribunal and the Senior Member in other proceedings, such as statements including "I have observed the blatant bias of Senior Member Riordan" at paragraph 39.

(6) At paragraphs 42 to 46 the appellant's understanding of the Tribunal's orders of 16 October 2023 beginning at paragraph 42 that provides:

"I now turn to the NCAT division proceeding 2023/00309534, which is the proceeding under appeal. In that proceeding I was invited to make submissions as to "why the matter is suitable to be determined on papers" in the circumstances of the matter being otherwise set for a hearing. In other words, I was informed that if I want the hearing to be vacated, I should make submissions as to why should be vacated. I was not informed that I should make any submissions as to why the hearing should not be vacated. As I had no notice that there was any proposal to vacate the hearing and as I did not want the hearing to be vacated, I made no submission on the topic."

(7) The circumstances and interactions with the respondent via a person called "Leanne" as to the access application including narrowing of the scope of the access application.

1. To the extent the affidavit provided fresh and/or further evidence, primarily being the appellant's evidence as to her understanding of the Tribunal's orders made in the proceedings that was not before the Tribunal at first instance, applying the guiding principle under s 36 of the NCAT Act, leave is granted for the appellant to rely on the affidavit on the basis the Appeal Panel considers the respondent had a sufficient opportunity to address that evidence.
2. Given much of the affidavit is more in the nature of submissions and contentions, the remainder of the affidavit will still be considered as material before the Appeal Panel provided by the appellant in these appeal proceedings subject to relevance as considered below.
3. Therefore, in summary, the following material was before the Appeal Panel in this appeal:

(1) The Notice of Appeal of 14 March 2024 (as amended).

(2) The Reply to Appeal filed 13 March 2025.

(3) An Appeal Book and written submissions provided by the respondent, filed 7 October 2025.

(4) The "Amended Grounds of Appeal" document (the contents of which are set out above (at [18])) of 11 September 2025.

(5) An affidavit of the appellant sworn 11 September 2025.

(6) The respondent's further written submissions and a transcript of the appeal hearing filed on 19 December 2025. While provided one day out of time, applying the guiding principle under s 36 of the NCAT Act we consider this material should be before the Appeal Panel in this appeal because we do not consider there was any prejudice to the appellant given the appellant had until 22 January 2026 to provide material in reply with the benefit of a transcript of the appeal hearing. No reply material was received from the appellant by the Appeal Panel following the hearing.

1. No reasons were provided for the 14 February 2023 decision to dispense with a hearing in the proceedings. There is no requirement to provide reasons for such a decision: s 62(2A)(a) of the NCAT Act.
2. The Tribunal's reasons of 26 February 2023 (the Reasons) in the substantive proceedings set out:

(1) Details of the application for access to information;

(2) Relevant interaction between the appellant and the respondent regarding the access application ([2] to [12] of the Reasons);

(3) The procedural history of the proceedings ([14] to [21] of the Reasons);

(4) The evidence of the respondent's witness as to his experience and the respondent's conduct, actions, capacity and capabilities regarding the access application ([22] and [24] to [38] of the Reasons);

(5) That the appellant had not responded to the evidence of the witness and had not notified the respondent that the witness was required to appear for cross examination ([23] of the Reasons);

(6) Consideration and a determination that the Tribunal had jurisdiction to determine the proceedings ([40] to [43] of the Reasons);

(7) Relevant legislative provisions ([44] to [56] of the Reasons) and

(8) Details and a summary of the respondent's submissions ([57] to [82] of the Reasons), noting the appellant had not filed any submissions ([83] of the Reasons).

(1) Addressed the requirements of the discretion to refuse to deal with an application under s 60(1) of the GIPA Act, observing: the "high threshold" before an agency can exercise such discretion given the relevant statutory presumptions in favour of facilitating access to government information; and that it must be established dealing with the access application is both a substantial diversion of resources as well as that such substantial diversion is unreasonable.

(2) Addressed the requirement that considerations in s 60(3A) of the GIPA Act are to outweigh the s 60(3B) considerations before the discretion (to refuse to deal with an access application) can be exercised.

(3) Noted the relevant pre-condition under s 60(4) of the GIPA Act that an agency must give an applicant of an access application a reasonable opportunity to amend the access application ([88] of the Reasons) and determined the Tribunal was satisfied s 60(4) had been complied with ([106] of the Reasons).

(4) Noted the effect of s 60(3B)(b)(ii) of the GIPA Act required an applicant to establish a "plausible basis" why the information might assist them in exercising a legal right, but did not require an applicant for access to information to show how information they did not yet have access to was of demonstrable importance to them in a positive or specific sense ([101] of the Reasons).

1. In assessing the s 60(3A) considerations, the Tribunal accepted the respondent's evidence as to the estimates of 890 pages and approximately 70 hours to review the material on the basis the estimates were "based on transparent and reasonable assumptions" and concluded "Doing the best I can" based on the respondent's evidence, that the access application would require a significant utilisation of the agency's resources ([108] and [109] of the Reasons). On a similar basis the Tribunal also determined ss 60(3A)(a) and (b) factors should be given moderate weight ([110] to [113] of the Reasons). The Tribunal gave the general 20 day decision period "some weight" ([116] of the Reasons).
2. In assessing the s 60(3B) considerations, the Tribunal first noted the general public interest in government information was to be given primary weight, with secondary weight to there being specified limitations and exceptions, including one applicable to the proceedings. The Tribunal also noted there was no evidence to establish any of the information requested in the access application was personal information of the appellant nor that the information was required to establish a legal right ([117] and [118] of the Reasons).
3. In balancing the ss 60(3A) and (3B) considerations, the Tribunal determined ([119] of the Reasons):

"Based upon Mr Steptoe's evidence, I am satisfied that the GIPA request would involve a substantial utilisation of the resources that are available to the agency for dealing with GIPA requests. As there is no evidence regarding the demonstrable importance of the information to the applicant, I am satisfied that the degree of utilisation would be unreasonable."

1. A jurisdictional error raises a question of law: Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [202].
2. The appellant holds the view that as she is now resident of Tasmania, the Tribunal and Appeal Panel do not have jurisdiction to deal with matters in which she is a party, including in proceedings under the GIPA Act, because the proceedings involve the exercise of federal judicial power which cannot be conferred otherwise than in accordance with Chapter III of The Constitution (Cth).
3. This issue was resolved by the Court of Appeal in respect to proceedings under the GIPA Act in Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 (and by the High Court regarding proceedings under privacy legislation in New South Wales v Wojciechowska [2025] HCA 27).
4. In considering the Tribunal's functions under the GIPA Act, the Court of Appeal (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."

1. Consequently, it is clear these appeal proceedings, as an internal appeal of administrative review proceedings under the GIPA Act, do not involve the exercise of judicial power. Therefore, whether or not the appellant is a resident of another State of the Commonwealth, the Tribunal at first instance had jurisdiction to make its decision and the Appeal Panel has jurisdiction to determine this appeal.
2. On the issue of jurisdiction, the appellant also contended there was a distinction between merits review and judicial power/judicial review that affected the task of the Tribunal in the proceedings. The Tribunal considered jurisdiction, as noted above at [39(6)]. The Reasons do not disclose, as alleged by the appellant, any purported exercise of judicial power or judicial review by the Tribunal. Instead, we are satisfied the Tribunal identified and performed the proper task of determining the correct and preferable decision as required by s 63 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act").
3. The appellant has not established any error as to jurisdiction by the Tribunal. It follows the amended grounds of appeal based on errors as to jurisdiction are not made out.
4. For completeness, we note that the appellant raised a further issue as to jurisdiction; namely if any error on a question of law or leave ground were made out, an error of jurisdiction would have occurred as a consequence. Given our findings in these reasons (above and below), this further issue as to jurisdiction does not arise.

Dispensing with a hearing (appeal grounds 1(c), (1)(d) and 3)

1. We understand the appellant to contend that she was denied procedural fairness as a result of: the apprehended bias of Senior Member Riordan and the Tribunal; a breach of the fair hearing rule; and there being insufficient notice that the hearing would be vacated, with a lost opportunity to make oral submissions and cross examine the respondent's witness Mr Steptoe.
2. The appellant also made submissions that, as a result of what she was told in her first case conference in the Tribunal in other proceedings, she did not ever have to do anything in proceedings under the GIPA Act because the onus rested with the respondent and she was therefore under no obligation to take any steps in proceedings.
3. The issue of bias will be dealt with below (at [106]-[116]).
4. As set out above (at [13]) an error on a question of law may arise where there has been a failure to provide procedural fairness in the conduct of the proceedings: Donohoe v Albulario [2025] NSWSC 9 at [36]- [39].
5. Further, the rules of natural justice require that a person be given a fair hearing before decisions are taken that affect their interests: see s 38(2) of the NCAT Act and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [41] (Gleeson CJ), [142] (Kirby J) and [170] (Hayne J).
6. In the circumstances, we consider appeal grounds relating to alleged denial of procedural fairness and breach of the fair hearing rule because of the Tribunal's decision to dispense with a hearing each raise a question of law.
7. To be successful on appeal, an error established on such questions of law must be material to the outcome: Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 at [53]- [54].
8. Unlike the factual circumstances of Wu v Fairfield City Council [2023] NSWCATAP 288, where the Appeal Panel reviewed the sound recording of a directions hearing, following which an order was made for a hearing to be dispensed with, no transcript or sound recording of the case conference on 16 October 2023 was before the Appeal Panel in these proceedings. The procedural directions made in these proceedings on 7 March 2025 amended on 10 March 2025 make clear that if a party is relying upon what occurred at a hearing in the Tribunal at first instance as part of the appeal, a sound recording and transcript of the relevant parts must be provided to the Appeal Panel.
9. The failure to provide a sound recording and transcript by an appellant who bears the onus of proving the decision (or conduct of a hearing) contained an error on a question of law, or otherwise that leave to appeal should be granted, is often fatal to the prospects of success of the appeal: Butto v NSW Land and Housing Corporation [2025] NSWCATAP 111 at [43].
10. Accordingly, in the absence of a sound recording or transcript of the case conference held on 16 October 2023, the Appeal Panel in these proceedings can only look to the orders and reasons for decision and the material before the Appeal Panel in the appeal proceedings to assess and determine the relevant circumstances.
11. Under s 50(2) of the NCAT Act the Tribunal may dispense with a hearing (that is, determine a matter 'on the papers') if satisfied "the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal". Under s 50(3) of the NCAT Act the Tribunal cannot make an order dispensing with the proceedings unless the parties have been given an opportunity to make submissions and any such submissions have been taken into account.
12. Parties have a duty to both "give effect to the guiding principle" and "comply with directions and orders of the Tribunal": s 36(3) of the NCAT Act.
13. On 16 October 2023 the Tribunal made the following orders in the nature of procedural directions:

"1. The respondent is to file and serve their evidence and material relied upon, on or before 4 December 2023.

2. The applicant is to file and serve the evidence and material that they rely upon, including notice of any witnesses required for cross examination at hearing and submissions as to why the matter is suitable to determine on the papers, on or before 29 January 2024.

3. The respondent is to file and serve a reply (if any) and also to file and serve submissions as to whether the matter is suitable to determine on the papers. Such matters to be filed and served on or before 12 February 2024.

4. Paulina Wojciechowska is allowed to be represented by agent: Krzysztof Bolejko pursuant to s 45(1)(b) (i) of the Civil and Administrative Tribunal Act 2013 for today's Case Conference.

5. The proceeding is listed for hearing on 21 February 2024 at 10:00am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for three hours in person. Leave to applicant to appear at hearing by AVL as they continue to reside interstate. This date may be vacated if allocated Member determines in Chambers in week commencing 12/2/2024 that the matter can be adequately dealt with in the absence of the parties (on the papers).

6. Notes:

The parties note and agree that at present there is no evidence before the Tribunal that the application for Administrative Review has been lodged out of time. (If there was evidence then the matter could only be one day out of time). On this basis the respondent indicated that they would not press the lateness or oppose any order under s 101(4) of the GIPA Act 2009 - should at some future time the need for such an application by the applicant become apparent."

1. On 7 December 2023 the Tribunal extended time for the 16 October 2023 orders by three days for each of direction 1 and direction 2.
2. The appellant filed no material in accordance with direction 2 nor did she notify the respondent of any witness required for cross examination before the relevant extended deadline of 1 February 2024.
3. The appellant submits she was not required to provide submissions to the Tribunal on the issue of dispensing with a hearing because orders of 16 October 2023 only directed the appellant to provide submissions "as to why the matter is suitable to determine on the papers" and she was of the view it would not be suitable to determine the proceedings on the papers.
4. The appellant also contends she "had no notice that there was any proposal to vacate the hearing" (paragraph 42 of the appellant's affidavit).
5. Relevantly, the Tribunal's orders of 16 October 2023:

(1) directed the appellant to give: "notice of any witnesses required for cross-examination at hearing and submissions as to why the matter is suitable to determine on the papers" (direction 2).

(2) directed the respondent to give: "submissions as to whether the matter is suitable to determine on the papers" (direction 3).

(3) listed the proceedings for hearing and noted "This date may be vacated if allocated Member determines in Chambers in week commencing 12/02/2024 that the matter can be adequately dealt with in the absence of the parties (on the papers)" (direction 5).

1. We are unable to accept the contention of the appellant that she had no notice there was any proposal to vacate the hearing, particularly in light of direction 5 and in the absence of a sound recording or transcript of the case conference.
2. The Tribunal's orders of 16 October 2023 clearly foreshadowed consideration would be given by the Tribunal to determining whether the proceedings would be determined 'on the papers', particularly because of the note within direction 5.
3. While the words "or not" were not included after the word "whether" in directions 2 and 3, we consider the parties were provided with sufficient notice the proceedings might be determined without a hearing and a sufficient opportunity to provide submissions, for the purposes of s 50(3) of the NCAT Act, as to whether the Tribunal should dispense with a hearing.
4. We consider the parties were provided with an opportunity to provide submissions to inform consideration as to whether a hearing should be dispensed with in the proceedings by virtue of directions 2 and 3 and in light of direction 5, and that it was a "sufficient opportunity" to do so.
5. The appellant filed no material including written submissions and did not notify of any witness required for cross examination before the relevant extended deadline of 1 February 2024. Further, following the making of the order dispensing with a hearing on 10 February 2024 and before the Tribunal's decision of 24 February 2024, the appellant lodged no objection to the dispensing of the hearing, nor did the appellant seek to appeal against the orders of 10 February 2024 in that time period. As a result, we consider that the Tribunal was entitled to assume, particularly in light of s 36(3) of the NCAT Act and the orders of 16 October 2023, that any and all intended material from the appellant was before the Tribunal and that the Respondent's evidence was not challenged by the appellant.
6. In submissions on the appeal, the appellant contends the fair hearing rule was breached and that she was denied procedural fairness because she was denied an opportunity to cross examine Mr Steptoe. However, as noted by the Tribunal (at paragraph 23 of the Reasons) the appellant "...did not notify the respondent that she required Mr Steptoe to appear for the purposes of cross-examination at a hearing". Direction 2 clearly set out such a requirement. As a consequence, had there been a hearing on 21 February 2024, the relevant witness would not have been required to attend the hearing for the purpose of cross examination.
7. Further, at the hearing of the appeal the appellant declined to provide any indication or examples of potential oral submissions or any line of questioning to establish how the outcome may have been different if a hearing had occurred, stating only that she had been denied an opportunity to make oral submissions or test Mr Steptoe's opinions. The appellant, who bears the onus, has not demonstrated any potential difference of outcome if a hearing of the first instance proceedings had occurred.

1. In all the circumstances we therefore do not consider the appellant has established a breach of the fair hearing rule or a denial of procedural fairness as a result of a missed opportunity for cross examination or the making of oral submissions.
2. We are also satisfied the appellant was provided sufficient opportunity to make submissions for the purpose of s 50(3) of the NCAT Act, and no error on the part of the Tribunal, in deciding to determine the matter on the papers without a hearing, has been established. Accordingly, no appeal ground in respect of the Tribunal's decision to dispense with a hearing is made out.

Errors regarding documents and failure to discharge onus (appeal grounds 6 and 10)

1. The appellant contends that the respondent did not provide all relevant documents to the Tribunal at first instance.
2. In oral submissions, the appellant described further appeal ground 10 as being that the respondent "at the division level" did not discharge the onus of proof that rested with the respondent to justify the decision under the GIPA Act to refuse to deal with her application for access to information.
3. Such action might be considered a misapplication of a statutory requirement, and we consider this issue may raise a question of law because the allegation is essentially that the Tribunal applied the wrong principle: see Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [40]- [45].
4. As result of the onus resting with the respondent to justify its original decision before the Tribunal below (s 105 of the GIPA Act), the appellant submits the Tribunal should have had before it:

(1) a GIPA Act "Guidelines and Procedure" document she located on the NSW Police Force website (annexed to the appellant's affidavit of 11 September 2025 as "PW5");

(2) a "GIPA Instruction Sheet" (included in the guidelines at PW5) completed by the respondent in respect of her access application under review;

(3) the approximately 890 documents identified by the respondent as potentially responsive to the appellant's access application;

(4) documents to support the evidence provided by the respondent's witness; and

(5) documents relevant to legal costs arising as a result of other administrative review proceedings.

1. As acknowledged by the appellant, there is no requirement for a decision maker in proceedings under the GIPA Act to provide every relevant document upon which its decision is based, as proceedings under the GIPA Act are not proceedings to which the requirement under s 58(1)(b) of the ADR Act applies.
2. It is unclear what, if any, assistance the documents described above would have provided to the Tribunal in determining the correct and preferable decision in the proceedings.
3. Upon inspection, the documents identified at [82(1)] and [82(2)] above, namely the GIPA Act "Guideline and Procedure" and "GIPA Instruction Sheet", on their face do not disclose any error or inconsistency on the part of the respondent in dealing with the access application, nor of the Tribunal in conducting an administrative review of the respondent's decision in respect of the access application.
4. Further, it is incorrect (if not incongruous) for the appellant to suggest that the respondent should have put before the Tribunal the 890 "potentially responsive" documents, in proceedings where the respondent had determined to refuse to deal with the application for access to information on the basis that the process of obtaining and reviewing those very same documents would require an unreasonable and substantial diversion of the agency's resources. We also do not agree with the appellant's submission made at the hearing that the Tribunal must be provided with those documents because it is not able to "step into the shoes" of the respondent to conduct the required merits review without them.
5. As result of the respondent failing to provide those documents, the appellant also submits the Appeal Panel should draw a Jones v Dunkel (1959) 101 CLR 289; [1959] HCA 8 adverse inference in respect of that failure and those documents. However, the appellant has not articulated a basis for her assertion that in failing to ensure the respondent provided the specified documents, or consequently in failing to consider those documents, the Tribunal erred.
6. We note the Tribunal at first instance was not invited to draw a Jones v Dunkel inference.
7. As previously set out by the Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [55], the respondent is entitled to decide how to run their case including deciding what evidence to adduce to support their claim. While, as the appellant noted, that decision considered a failure to call a witness, we consider the general principle from that decision is equally applicable to provision of evidentiary material including documents.
8. Further, we consider such principle is of particular relevance to administrative review proceedings under the GIPA Act where there is a specific absence of a statutory duty to provide particular documents, by operation of s 103 of the GIPA Act which (as noted above) switches off the usual requirement of s 58(1)(b) of the ADR Act for an administrator to provide every document in the administrator's possession or control relevant to a decision under review.
9. Therefore we do not consider the appellant has established any error founded on the basis the documents described above (at [82]) were not before the Tribunal at first instance.
10. We are also satisfied the Tribunal came to it its own conclusions as to the weight the Tribunal attributed to relevant factors when applying the balancing test as demonstrated by the Tribunal attributing moderate weight to ss 60(3A)(a) and (b) factors (as described at [41] above) when the respondent's submission was that those factors should be given significant weight (respondent's appeal bundle p 125).
11. It follows we consider no appeal ground is made out founded on that either: specified further documents should have been before the Tribunal; nor in respect of the discharge of the onus applying to the respondent in respect of the respondent's material before the Tribunal; nor that the Tribunal applied a wrong principle.

Errors regarding the evidence of the witness (appeal ground 7)

1. The appellant contends the Tribunal erred in relying on (or giving any weight to) the "unsworn" signed statement of Mr Steptoe an officer of the respondent, filed 7 December 2023, submitting such evidence was "practically irrelevant".
2. We understand the appellant's submission to be a submission there was no evidence to support the decision made by the Tribunal. A ground based on such a submission raises a question of law: Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 at [90]- [91].
3. The Tribunal is not bound by the rules of evidence (s 38(2) of the NCAT Act) and can receive unsworn evidence subject to relevance and weight: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [34].
4. The Reasons disclose the Tribunal set out the evidence of Mr Steptoe at [22] to [38] of the Reasons. We do not consider that evidence to be "irrelevant" to the issues before the Tribunal. We are satisfied that the Tribunal considered his evidence in the context of all the material before the Tribunal, and in the absence of evidence as to whether the information requested in the access application was of importance to the appellant, when performing the relevant statutory test (at [117]-[119] of the Reasons). We discern no error on the part of the Tribunal in doing so.
5. Further, as previously and similarly considered by the Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [50]- [57], the respondent's choice of Mr Steptoe as a witness instead of the original decision maker was a matter for the respondent in its choice of how to run its case.
6. Alleged errors on the part of the original decision maker are not relevant for the purposes of Tribunal proceedings in the nature of administrative review of a decision of an agency under the GIPA Act: see Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [21] and Lonsdale v University of Sydney [2015] NSWCATAP 277 at [29]- [31]. We do not consider the appellant has established any error resulting from the respondent not providing the original decision maker as a witness, nor from the Tribunal not requiring evidence or the presence of the original decision maker at the first instance hearing.
7. It follows this ground of appeal is not made out.
8. In the event the appellant's submission is instead better characterised as an "against the weight of evidence" ground, of the kind discussed in Collins v Urban at [77(2)]:

"The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach" (citations omitted)

for the same reasons as set out above, and because the appellant did not indicate, as required by the Tribunal's procedural directions, Mr Steptoe was required for cross examination, we do not consider the Tribunal's decision, relying on the evidence of Mr Steptoe, to have been against the weight of evidence so as to make out such a ground of appeal.

Tribunal misleading and deceptive (appeal ground 9)

1. Appeal ground 9 is stated to be that the Tribunal "engaged in misleading and deceptive conduct in trade or commerce by supplying the appellant with the services by Senior Member Riordan". This appears to be an allegation of a breach of s 18 of the Australian Consumer Law on the basis of a submission of the appellant that the Tribunal advertises itself as "providing dispute resolution for everyone" and charges statutory fees.
2. We cannot accept that submission of the appellant and consider this ground of appeal to be misconceived. The Tribunal's jurisdiction can only be what the law allows, it is not at large. Also, a Member of the NSW Civil and Administrative Tribunal is immune from civil liability: Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73 at [30]. Further, we do not consider any action of the Tribunal's registry or the Registrar as to "advertising", nor charging fees determined by regulation, are actions that ground an internal appeal under s 80 of the NCAT Act from administrative review proceedings under the GIPA Act.
3. In the circumstances, we do not consider this ground to raise a question of law, nor do we consider there is any basis to grant leave on this ground.
4. Therefore, this ground of appeal fails.

1. The appellant contends the Tribunal member exhibited bias towards her in making a determination as to jurisdiction in 2022 proceedings (Wojciechowska v Commissioner of Police [2022] NSWCATAD 70, a decision upheld in that respect in Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191). The appellant submits the Tribunal member has previously conducted tribunal proceedings without notice to the appellant.
2. At the appeal hearing the appellant clarified the bias alleged is apprehended bias and not actual bias.
3. As referred to above (at [12]), the Appeal Panel in Cusumano (at [32(3)]) considered a Tribunal decision vitiated by apprehended bias could raise a question of law. We agree with that approach.
4. The test for determining 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": Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [8]; [2000] HCA 63; 205 CLR 337 at p 345.
5. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15, Kiefel CJ and Gageler J at [37]-[38] observed:

"[37] The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion 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". The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability.

[38] Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer."(citations omitted)

1. The making of orders and procedural directions in proceedings, as well as conducting hearings is part of the Tribunal's power to determine its own procedure (s 38 of the NCAT Act) and is an ordinary way in which Tribunal proceedings are conducted.
2. We consider that the Senior Member conducting and then determining other tribunal proceedings to which the appellant was a party would not, of itself, cause a fair minded lay observer to reasonably apprehend the Senior Member might not bring an impartial mind to the resolution of the matters required to be determined by the Tribunal in the proceedings the subject of this appeal.
3. The appellant has identified the Senior Member's alleged previous conduct in conducting proceedings without notice to the appellant as a factor that might have led the member to resolve the matters required to be determined by the Tribunal in the proceedings the subject of this appeal other than on its legal and factual merits. However, the appellant has not:

(1) provided evidence supporting her claim that such conduct had in fact occurred;

(2) articulated the logical connection between that factor and an apprehended deviation from deciding the proceedings the subject of this appeal on its merits; or

(3) established an assessment of the reasonableness of an apprehension from the perspective of a fair-minded lay observer.

1. The appellant has therefore not demonstrated apprehended bias on the part of the Senior Member.
2. The appellant also alleged apprehended bias on the part of "the Tribunal" but provided no evidence or basis to support any such submission.
3. It follows the appellant's grounds of appeal relying on the issue of apprehended bias of the Senior Member, and/or of the Tribunal, are not made out.

1. While the appellant did not indicate she sought leave in her Notice of Appeal, nor did she address the issue of leave when invited to do so in oral submissions, for completeness we will consider the issue of leave.
2. In all the circumstances, and for the reasons set out above in relation to each substantive issue, we consider the appellant, who bears the onus, has not established any issue of principle, nor question of public importance, matter which might have general application, nor reasonably clear injustice, nor unreasonable or mistaken factual error, nor unorthodox Tribunal fact finding. We do not discern any such error on the part of the Tribunal. Therefore, so far as leave might be required, we would not grant leave.

1. The appellant sought to support a submission, via the material provided by the appellant, that the respondent would have been better off providing the information to her, given an assessment of the costs incurred, including costs incurred by the respondent. Essentially, the appellant submits it would have been cheaper in the circumstances to give her the information she seeks. However, the respondent's obligation was to make a decision in accordance with the GIPA Act and the Tribunal's role was to determine whether that decision was the correct and preferable decision in respect of the appellant's application for access to information. The issue of costs incurred and whether it would have been cheaper to provide documents, in the circumstances of an administrative review of a decision under the GIPA Act, is not a relevant consideration for either the respondent or the Tribunal. Such submission cannot be accepted by the Appeal Panel and does not raise a question of law, nor does it provide a basis to grant leave in an internal appeal.

1. As none of the grounds of appeal are made out, and no leave is granted, the appeal is dismissed.

1. In submissions, the respondent sought his costs of the appeal in the event that the appellant was unsuccessful in the appeal. The appellant also sought costs, including of the first instance proceedings.
2. A timetable was provided for the provision of submissions as to costs at the conclusion of the hearing on 15 October 2025. However, amendment of that timetable on 28 November 2025, by consent, removed the opportunity for parties to address the Appeal Panel on costs.
3. As a consequence, procedural directions are made to allow an opportunity for the parties to make any submissions and provide any relevant material in support of their respective positions as to costs.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) The respondent is to file and serve any application for costs on the appeal, together with evidence (if any) and written submissions, within 3 weeks of publication of these reasons for decision.

(4) The appellant is to file and serve evidence (if any) and written submissions on costs in response, within a further 3 weeks.

(5) The respondent is to file and serve further evidence (if any) and submissions on costs in reply, within a further 1 week.

(6) The parties are to include in their submissions their views as to whether the issues for determination in relation to the making of any order for costs on the appeal can be adequately determined on the basis of the written material lodged with the Tribunal, in the absence of the parties and without a hearing, under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

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.

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.