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[2026] NSWCATAP 297
General information, not legal advice.
NCAT Appeal Panel
2026-09-18
Hennessy ADCJ, Deputy President G Sarginson, Deputy President
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Wojciechowska v Commissioner of Police, NSW Police Force [2026] NSWCATAP 297
Hearing dates: 22 May 2026
Date of orders: 18 September 2026
Decision date: 18 September 2026
Jurisdiction: Appeal Panel
Before: Hennessy ADCJ, Deputy President
G Sarginson, Deputy President
Decision: (1) The appeal is dismissed.
(2) The Appellant’s application for cost in the proceedings under appeal is dismissed.
(3) The Appellant’s application for costs in these proceedings is dismissed.
(4) The Appellant is to pay the Respondent’s costs of the appeal on the ordinary basis as agreed or, failing agreement, as assessed.
Catchwords: APPEAL – Question of law –where the Appeal Panel is exercising administrative power when determining an appeal under the GIPA Act; whether the Appeal Panel is confined to conducting a merits review of the primary decision --. Effect of the Supreme Court’s decision in Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191
COSTS – where appeal has no tenable basis in law and appellant has failed to comply with procedural directions requiring two compliance hearings – whether special circumstances exist justifying an award of costs
Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009
Privacy and Personal Information Protection Act 1998 (NSW)
The Constitution (Cth)
Cases Cited: Bryant v United Voice NSW Branch [2019] FCA 460
Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Chalik v Chalik [2025] NSWCA 136
Choi v University of Technology Sydney [2018] NSWCATAD 7
DYH v Public Guardian (No 3) [2022] NSWCATAP 34
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378
FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278
John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386
Kudrynski v Orange City Council [2024] NSWCA 33
Malkinson v Trim [2003] 2 All ER 356
McNeill v Clarence Valley Council [2025] NSWCATAP 184
Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223
SZTOG v Minister for Immigration & Border Protection [2018] FCA 112
The Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40
Wojciechowska v Commissioner of Police [2022] NSWCATAD 70
Wojciechowska v Commissioner of Police, NSW Police Force [2025] NSWCATAD 204
Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191
Wojciechowska v Secretary, Department of Communities and Justice [2022] NSWCATAP 226
Wojciechowska v Secretary, Department of Communities and Justice [2026] NSWCATAP 210
ZNX v ZNY [2020] NSWCATAP 41
Texts Cited: None cited
Category: Principal judgment
Parties: Paulina Wojciechowska (Appellant)
Commissioner of Police, NSW Police Force (Respondent)
Representation: Solicitors:
Appellant (Self-represented)
Crown Solicitor (Respondent)
File Number(s): 2025/00348116
Publication restriction: Nil
When NCAT is exercising its internal appeal jurisdiction in relation to reviewable decisions under the Government Information (Public Access) Act 2009 (GIPA Act), it is exercising administrative power, not judicial power: Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191 (Wojciechowska v Secretary CA). However, contrary to Ms Wojciechowska’s submission, the effect of the decision in Wojciechowska v Secretary CA is not that NCAT is restricted to conducting a merits review of the primary decision on appeal. NCAT may exercise all the statutory powers and functions available under its internal appeal jurisdiction including the power to determine an appeal which identifies a question of law as the ground of appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 32 and s 80.
Ms Wojciechowska’s misunderstanding of the effect of the Supreme Court’s decision in Wojciechowska v Secretary CA led her to submit that she did not have to provide grounds of appeal on a question of law. Her failure to do so means that the appeal is misconceived. For that reason, it is dismissed.
Ms Wojciechowska lodged an internal appeal from a decision of NCAT in Wojciechowska v Commissioner of Police, NSW Police Force [2025] NSWCATAD 204 (the primary decision).
The primary decision relates to events in 2018 when police officers went to a property in New South Wales and interacted with Ms Wojciechowska. On 23 November 2021 she applied to the Commissioner of Police, NSW Police Force (the Commissioner) for access to information under the GIPA Act. The Commissioner initially refused to deal with Ms Wojciechowska application. She applied to NCAT for administrative review of that decision. NCAT remitted the matter to the Commissioner for reconsideration.
On 26 April 2022, the Commissioner made a new decision releasing some information, deciding that it did not hold some information and deciding that there was an overriding public interest against disclosure of other information. Ms Wojciechowska chose to go ahead with the application to NCAT for administrative review of the Commissioner’s new decision. However, she submitted that NCAT did not have jurisdiction to decide the proceedings because to do so would infringe the limitation recognised in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 (the Burns v Corbett restriction). We explain that limitation below at [25].
On 2 March 2022 NCAT rejected Ms Wojciechowska’s submission that it did not have jurisdiction to determine the proceedings because to do so would infringe the Burns v Corbett restriction: Wojciechowska v Commissioner of Police [2022] NSWCATAD 70 (the jurisdiction decision). Ms Wojciechowska appealed to the Supreme Court from that decision and from a decision of the Appeal Panel staying an internal appeal in which Ms Wojciechowska had raised the same argument: Wojciechowska v Secretary, Department of Communities and Justice [2022] NSWCATAP 226.
The Supreme Court (Court of Appeal) delivered its judgment on 17 August 2023: Wojciechowska v Secretary CA. The Court (Kirk JA, Mitchelmore JA and Griffiths AJA agreeing) dismissed the proceedings concluding that the “Burns v Corbett restriction” does not apply to any of the impugned functions of the Tribunal in reviewing decisions under the GIPA Act: Wojciechowska v Secretary CA at [105]. The Court also discussed NCAT’s powers under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act), but it is unnecessary to refer to that issue, as this appeal is from a GIPA Act decision.
Following the Supreme Court’s decision, NCAT concluded that, when exercising its administrative review jurisdiction under s 30 of the NCAT Act, it had power to determine the proceedings even though Ms Wojciechowska is not a resident of New South Wales: Wojciechowska v Commissioner of Police, NSW Police Force [2025] NSWCATAD 204 at [44]. Ms Wojciechowska has not appealed from that part of the primary decision.
NCAT went on to affirm the Commissioner’s decisions that he did not hold certain information and that there was an overriding public interest against disclosure of other information. NCAT made the following single order: “The Respondent’s reviewable decision is affirmed.”
On 10 September 2025, Ms Wojciechowska lodged a Notice of Appeal identifying the primary decision as the decision from which she was appealing. We note that Ms Wojciechowska withdrew the following submissions: that the Respondent was not correctly named; that NCAT be added as a second respondent; and that NCAT be ordered to pay the costs of the primary decision.
At the appeal hearing we identified the issues in a particular way and asked the parties to respond orally. Having considered the parties’ oral and written submissions, we have framed the issues differently in these reasons for decision. The substance of the dispute has not changed.
The issues, and our conclusion in relation to those issues, are:
Does the fact that the Appeal Panel exercises administrative power, rather than judicial power, when determining an appeal under the GIPA Act, mean that it is confined to conducting a merits review of the Commissioner’s decision and that an appellant does not have to identify a question of law? (No)
Should the Appeal Panel treat Ms Wojciechowska’s 13 points in written submissions as grounds of appeal on questions of law? (No)
What orders should the Appeal Panel make? (To dismiss the appeal as misconceived)
Does the Tribunal have power to make a costs order when determining an internal appeal on a question of law from a decision under the GIPA Act? (Yes)
Should the Commissioner pay Ms Wojciechowska’s costs on appeal and in the primary proceedings? (No)
Should Ms Wojciechowska pay the Commissioner’s costs on appeal? (Yes)
Ms Wojciechowska filed an affidavit dated 7 April 2026. The following parts of that affidavit are relevant to an issue in dispute: that she lives in Tasmania (para 2) and the procedural history of the primary proceedings (paras 8 – 13 and 15 – 19). We have treated the other information in the affidavit as submissions and taken those submissions into account where relevant to an issue.
80 Making of internal appeals
(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.
Note.
Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1).
(2) Any internal appeal may be made—
(a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
Under the heading “Grounds of Appeal” in the pro forma Notice of Appeal document, Ms Wojciechowska inserted a question mark (“?”). On the same form, Ms Wojciechowska ticked the “No” box indicating that she was not asking for leave to appeal on any ground other than a question of law: NCAT Act, s 80(2)(b).
Ms Wojciechowska identified the orders she was asking the Appeal Panel to make as: setting aside NCAT’s order of 12 August 2025, a costs order in her favour and that the Commissioner pay her damages for a breach of s 18 of the Australian Consumer Law 2010 (NSW). We have not considered Ms Wojciechowska submission that she is entitled to damages because she did not provide any supporting submissions. In those circumstances, we take her to have abandoned that ground of appeal.
These proceedings were first listed for call-over on 7 November 2025. The Appeal Panel directed Ms Wojciechowska to lodge “amended grounds of appeal” because no grounds of appeal had been listed or clearly identified in the Notice of Appeal. She was also directed to lodge evidence and written submissions by 16 January 2026.
On 11 December 2025, Ms Wojciechowska lodged a document with the heading “Annexure ‘?’ regarding grounds of appeal”. In that document she said that she does not provide any grounds of appeal “as according to case law that is not something she could possibly be required to do.” Citing Wojciechowska v Secretary CA, Ms Wojciechowska submitted that “it appears that NCAT performs merits review at all levels, including the Appeal Panel.”
Ms Wojciechowska did not lodge any evidence or identify any grounds of appeal by 16 January 2026. The Tribunal extended time for compliance with that direction to 27 January 2026. Ms Wojciechowska did not comply with that direction by that date and the matter was re-listed. On 18 February 2026, time was extended to 9 March 2026. The original hearing date of 13 March 2026 was vacated.
Ms Wojciechowska did not comply with the Tribunal’s direction by 9 March 2026. A further compliance hearing was held on 25 March 2026. Time was extended for a further and final time to 8 April 2026. The Appeal Panel noted that the appeal would be dismissed if Ms Wojciechowska failed to comply by that date.
On 8 April 2026 Ms Wojciechowska filed a document headed “Submissions of the Appellant”. Ms Wojciechowska submitted that:
As noted before, the Appeal Panel is meant to conduct a merits review. This means that s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) are modified in relation to this proceeding in that the Appeal Panel is not limited to questions of law only. In fact, it would be impermissible for the Appeal Panel to consider questions of law only, as this would involve the exercise of judicial power. As the only judicial power in respect of this proceeding is judicial power of the Commonwealth, the Tribunal would be proceeding without jurisdiction if it were limiting itself to questions of law only. The Appeal Panel has to proceed like the Tribunal at the Division level, i.e. by considering the merits of the application. The onus, as per Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”), is on the NSW Police Force to justify its decision: GIPA Act, s 105.
In the same document, under the heading “Assistance with Review” Ms Wojciechowska listed 13 points “for the assistance of the Appeal Panel”. Of those 13 points: one is a repeat of the jurisdiction issue set out above (point 10); another is that, as the Tribunal made findings only, no appeal on a question of law is available (point 9); three were mere assertions (that the Commissioner had not discharged the burden of proving that the decision is justified (point 5) and that the Tribunal had assigned too much or too little weight to certain considerations (points 6 and 7); three were about the sufficiency or relevance of the Commissioner’s evidence and what inferences could be drawn from that evidence (points 1, 2, and 4); and one was about the form of the Tribunal’s orders (point 12).
The other points were that the Tribunal failed to make non-publication orders but did not ensure that Ms Wojciechowska had access to the withheld information (point 11) and that the Tribunal denied her procedural fairness (point 8). Point 13 was that the Tribunal did not make an order for costs against the Commissioner.
In Wojciechowska v Secretary CA at [42] the Supreme Court described the Burns v Corbett restriction as being that “if resolution of the issue in question would involve exercise of the judicial power of the Commonwealth in a matter falling within ss 75 or 76 of the Constitution then it can only be resolved in a court authorised by federal legislation to exercise that power.” The proceedings fell within ss 75-76 of the Constitution because the dispute was between Ms Wojciechowska (a resident of Tasmania) and the State of NSW. The State of NSW accepted the proceedings were of a kind potentially falling within ss 75-76 of the Constitution (at [45]) . NCAT is not a court in the relevant sense. The issue was whether resolution of the claim or dispute would involve exercising “the judicial power of the Commonwealth” as that term is employed in s 71 of the Constitution.
At [15] the Supreme Court characterised the substantive issue as “. . . whether the Tribunal (including the Appeal Panel) was and is precluded from dealing with the application made to it under s 100 of the GIPA Act with respect to decisions made on behalf of the Secretary under that Act, being reviewable decisions pursuant to s 80(d) and (e) of the Act.”
The Court decided at [46] – [105] that the Tribunal, both in its administrative review jurisdiction and its internal appeal jurisdiction, does not relevantly exercise judicial power under the GIPA Act. That conclusion is clear from the scope of Ms Wojciechowska’s appeal in those proceedings, particular parts of the Court’s judgment and the orders it made.
Ms Wojciechowska sought relief in the Supreme Court directed both to NCAT when exercising it administrative review jurisdiction and when exercising its internal appeal jurisdiction: Wojciechowska v Secretary CA [13]. One ground of relief was that “the Appeal Panel and the Tribunal cannot exercise judicial power of the Commonwealth”. Ms Wojciechowska submitted to the Court that the Burns v Corbett restriction means that neither the Appeal Panel nor the Tribunal can exercise judicial power.
The Court summarised the legislative framework of the GIPA Act, the administrative review process under the Administrative Decisions Tribunal Act 1997 (NSW), the constitution of the Tribunal including the qualification of members and the right of parties to be legally represented. The Court then considered the nature of appeals and judicial reviews from decisions made under the GIPA Act. At [69] the Court expressly noted that an appeal may be made to the Appeal Panel of the Tribunal as of right on any question of law and with the leave of the Panel on other grounds. The Court cited s 32 of the NCAT Act, which establishes the Tribunal’s internal appeal jurisdiction, and ss 80 and 81, which govern the making and determination of internal appeals.
After setting out the nature of the decision making functions exercised by the Tribunal at [71] – [88], the Court considered the nature of the decision making body and the process by which it makes decisions. In that discussion, the Court noted at [90] that the Appeal Panel must have one lawyer but that not all members need to be lawyers. The Court also set out several procedural features of Tribunal hearings and the power to award costs. The Court concluded at [96] that “all these factors together . . . militate in favour of characterising the Tribunal as undertaking an administrative process, exercising administrative power”.
The Court concluded at [105] that:
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 fall within federal jurisdiction.
The “powers at issue” and the “impugned functions” referred to by the Court at [105] are the powers and functions of the Tribunal when exercising both its administrative review jurisdiction and its internal review jurisdiction in relation to applications for review of reviewable decisions under the GIPA Act.
The Court dismissed both the appeal from the Tribunal’s jurisdiction decision and the appeal from the Appeal Panel’s decision in Wojciechowska v Secretary, Department of Communities and Justice [2022] NSWCATAP 226 to stay the proceedings.
Ms Wojciechowska submits that the effect of the decision in Wojciechowska v Secretary CA is that NCAT cannot exercise any powers or functions in its internal appeal jurisdiction which would be the exercise of judicial power. That includes determining an appeal on a question of law and determining a costs application. Instead, she says NCAT is confined to exercising “administrative power” by considering the merits of her application under s 80(3) or s 81(1)(e) of the NCAT Act.
Ms Wojciechowska’s submission that the powers and functions of NCAT in this context can be divided into administrative and judicial powers and functions, and that NCAT is prevented from exercising the judicial powers, misunderstands the decision in Wojciechowska v Secretary CA. NCAT is always exercising administrative power when determining an appeal from a decision under the GIPA Act. Even though determining an appeal on a question of law would be an exercise of judicial power if performed by a court, the Supreme Court has decided that it is not the exercise of judicial power if performed by NCAT. As the Court explained in Wojciechowska v Secretary CA at [17], “. . . a power may have a ‘double aspect’ in that it ‘may take its character from the repository of the power – whether judicial or administrative – so long as the power, of its nature, is not forbidden to either’.”
By using the words “not limited to questions of law only” and “limiting itself to questions of law only” in her submissions, we understand Ms Wojciechowski to be submitting that if she does not identify a question of law, the Appeal Panel must still deal with and determine the appeal. According to Ms Wojciechowska, the Appeal Panel must do so by considering the merits of the application under the GIPA Act.
This submission misunderstands both the effect of the decision in Wojciechowska v Secretary CA and the effect of s 80 and 81 of the NCAT Act. The only basis for an appeal as of right from a final decision is a ground of appeal on a question of law: NCAT Act, s 80(2)(b). An appellant may also apply for leave to appeal on any other ground: NCAT Act, s 80(2)(b). The Appeal Panel may deal with the internal appeal by way of a new hearing if the grounds of appeal warrant a new hearing: NCAT, s 80(3). In determining an appeal, on the basis of the grounds of appeal, the Appeal Panel may direct the primary decision maker to reconsider whole or part of the case: NCAT Act, s 81(1)(c).
The existence of a question of law is not merely a qualifying condition to the statutory right of appeal, the question of law alone is the subject matter of the appeal: Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLRT 320; [2010] HCA 24 at [21]. There is no right of appeal “on the merits”. An appellant must identify one or more grounds of appeal.
Ms Wojciechowska put similar propositions to the Appeal Panel in other proceedings under the GIPA Act where the Secretary, Department of Communities and Justice was the respondent: Wojciechowska v Secretary, Department of Communities and Justice [2026] NSWCATAP 210 (Wojciechowska v Secretary AP). The Appeal Panel delivered its decision on 3 July 2026, six weeks after these proceedings were heard but before this decision was delivered. At [23] the Appeal Panel described the nature of NCAT’s internal appeal jurisdiction:
In Yuen v Thom [2016] NSWCATAP 243 at [15]-[20], an appeal panel canvassed the differing types of appeals and concluded that an appeal determined by way of a new hearing (under s 80(3) of the NCAT Act) is akin to a hearing de novo; but otherwise, an appeal under s 80 of the NCAT Act is by way of a rehearing. In an appeal by way of rehearing, an appeal panel is authorised to determine whether the order the subject of the appeal is the result of some legal, factual or discretionary error. In other words, unless an appeal panel decides to determine an appeal by way of a new hearing (a hearing de novo) in accordance with s 80(3), an appeal panel’s role is to discern and, where appropriate, correct, error. However, even before exercising the discretion under s 80(3), an appeal panel must be satisfied that there is a question of law or grant leave to appeal (NCAT Act, s 80(2)). Further, it is not in every case that an appeal panel would decide to conduct a new hearing. The grounds of appeal must warrant the appeal being determined by way of a new hearing.
At [30] the Appeal Panel concluded that, contrary to Ms Wojciechowska submission, it did not have to conduct a new hearing as provided for in s 80(3)(a) of the NCAT Act to avoid exercising judicial power. We agree with the Appeal Panel’s reasoning and its conclusion at [31] that there is no support for such a proposition in Wojciechowska v Secretary CA.
It follows that, contrary to Ms Wojciechowska’s submissions, none of the provisions in Part 6, Division 2 of the NCAT Act (ss 80 and 81) is modified or does not apply to internal appeals from decisions under the GIPA Act. Ms Wojciechowska must identify a ground of appeal to enliven NCAT’s internal appeal jurisdiction.
At the hearing Ms Wojciechowska said, for the first time, that the 13 points under the heading “Assistance with Review” in the submission filed on 8 April 2026 are questions of law and grounds of appeal. Ms Wojciechowska made oral submissions expanding on those points and explaining why, in her view, the Tribunal had erred.
The Commissioner submitted that we should not treat any of the thirteen points as grounds of appeal on a question of law. After five months and four opportunities to lodge materials, the Commissioner submitted that Ms Wojciechowska has not filed anything resembling a legal argument to which he can respond. Because the Commissioner does not know what is in dispute, he cannot identify the evidence and arguments he might wish to rely on in the appeal. Ms Wojciechowska should not be able to make oral submissions on matters of substance in circumstances where she has not given the Commissioner fair notice of the grounds of appeal.
The Commissioner made an oral submission responding to Ms Wojciechowska 13 points if we did not accept that submission.
At the hearing, we directed Ms Wojciechowska to provide further written submissions, if any, on two decisions relied on by the Commissioner – Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [3] and [6] and Wojciechowska v Commissioner of Police, NSW Police Force [2026] NSWCATAP 114 at [23], [24], [25] and [79]-[93]. In her written submissions filed after the hearing Ms Wojciechowska submitted that it is her “main argument” that “if the power exercisable by the Appeal Panel is indeed executive, then the Appeal Panel has to perform a true merits review”. She went on to submit that if that argument fails, in the circumstances of the GIPA Act being beneficial legislation, the Notice of Appeal should be read “benevolently”.
The reference to reading a Notice of Appeal “benevolently” comes from the decision in Kudrynski v Orange City Council [2024] NSWCA 33 at [50] referred to in Wojciechowska v Commissioner of Police, NSW Police Force [2026] NSWCATAP 114 at [25]. The Court held, in a similar legislative context, that the issue as to whether there is an appeal “on a question of law” should be approached as a matter of substance and not merely of form. The Court went on at [51], to state that where an appellant is unrepresented, it may be more appropriate to adopt “a more generous or benevolent approach in assessing whether a notice of appeal adequately identifies a question of law”.
The Appeal Panel came to a similar conclusion in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [10]. Where an appellant is self-represented, the Appeal Panel should consider for itself whether questions of law arise from the grounds of appeal. That general proposition is subject to the Appeal Panel not creating a ground of appeal where none is advanced in substance. (ZNX v ZNY [2020] NSWCATAP 41 at [29], citing SZTOG v Minister for Immigration & Border Protection [2018] FCA 112 at [30]. See also Bryant v United Voice NSW Branch [2019] FCA 460 at [19]), and procedural fairness considerations in McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [185]-[187], citing Chalik v Chalik [2025] NSWCA 136 at [67]-[72].)
Ms Wojciechowska is self-represented. Nevertheless, she repeatedly communicated her intention not to appeal on a question of law and did not ask for leave to appeal on any other ground. Neither the Notice of Appeal, nor Ms Wojciechowska’s submissions, identify or purport to identify a ground of appeal on a question of law. She provided the 13 points “as assistance” in conducting a “review”. Ms Wojciechowska did not seek leave to amend the Notice of Appeal.
Ms Wojciechowska is, in effect, seeking leave to amend the Notice of Appeal at this late stage. If that is her intention, we refuse that application. It would not be procedurally fair to the Commissioner to allow her to do so, nor would it be in accordance with NCAT’s guiding principle. That principle is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: NCAT Act, s 36(1). Ms Wojciechowska has had many opportunities to articulate grounds of appeal and has declined to do so for the reason she gave. Justice does not require that we allow her to amend the Notice of Appeal or treat the 13 points as grounds of appeal. Doing so would also delay the proceedings further and incur added costs.
60 Costs
(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),
(g) any other matter that the Tribunal considers relevant.
(4) If costs are to be awarded by the Tribunal, the Tribunal may—
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
The discretion to award costs must be exercised having regard to the “guiding principle” to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(2).
In FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278 at [30]-[54], the Appeal Panel identified the following six “leading principles” at [33]-[38]:
First, special circumstances are circumstances that are out of the ordinary. It is not necessary to establish extraordinary or exceptional circumstances: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11] quoting Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 per Santow JA at [60]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
Secondly, the onus is on the party seeking an order for costs to satisfy the Tribunal that there are special circumstances warranting an award of costs in its favour: see McEwan v Port Stephens Council (No 2) [2022] NSWCATAP 386 at [38].
Thirdly, the Tribunal is to consider whether the circumstances are sufficient to amount to special circumstances that justify departing from the general rule that each party bear its own costs: BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]. The mere existence of one of the enumerated factors in s 60 of the NCAT Act will not of itself be sufficient to warrant the conclusion that there are special circumstances.
Fourthly, each case will depend on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay and Wes Davies [2015] NSWCATAP 152 at [27].
Fifthly, mere success (or failure) of an application does not give rise to special circumstances: The Owners – Strata Plan 5319 v Price [2020] NSWCATAP 245 at [46].
Sixthly, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48].
Alternatively, if the Appeal Panel does have power to determine an application for costs, Ms Wojciechowska stated that the Tribunal in the primary decision failed to award costs in her favour.
Ms Wojciechowska did not apply for costs in the primary proceedings. There is no decision about costs from which she can appeal.
If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal Registry and give to the other party any submissions on costs at the same time as their submissions in relation to the appeal.
Ms Wojciechowska lodged submissions on 8 April 2025. Those submissions said nothing about costs. The Commissioner submitted that, in those circumstances, Ms Wojciechowska should be taken to have abandoned that application.
At the hearing Ms Wojciechowska repeated that she is seeking costs from the Commissioner. She did not elaborate. Nothing Ms Wojciechowska submitted satisfies us that there are special circumstances warranting an award of costs against the Commissioner.
Even if there were special circumstances warranting an award of costs, a self-represented litigant may not recover costs for their time spent in preparing and conducting the case: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 409. A self-represented litigant may recover reasonably incurred disbursements and witness expenses, but not travelling expenses or loss of earnings: Malkinson v Trim [2003] 2 All ER 356; Cachia v Hanes (1994) 179 CLR 403.
The Commissioner submitted that there are special circumstances justifying a costs order against Ms Wojciechowska on appeal. He seeks his costs on the ordinary basis as agreed, or failing agreement, as assessed. The Commissioner relies on the procedural history set out above and the following circumstances.
Firstly, that Ms Wojciechowska has conducted the proceedings in a way that unnecessarily disadvantaged the Commissioner by not giving notice of the grounds of appeal or to make written submissions. In addition, Ms Wojciechowska did not comply with the Tribunal’s directions necessitating two compliance hearings.
Secondly, that Ms Wojciechowska has prolonged unreasonably the time taken to complete the proceedings by not complying with the Tribunal’s directions.
Thirdly, that Ms Wojciechowska’s submission that NCAT would be exercising judicial power if it entertained an appeal on a question of law is untenable and an abuse of process. To the extent that Ms Wojciechowska asks NCAT to second guess the decision in Wojciechowska v Secretary CA, her submissions are frivolous and vexatious.
Fourthly, Ms Wojciechowska has consistently failed to comply with the Appeal Panel’s directions. That is a failure to comply with the duty to “cooperate 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”: NCAT Act, s 36(3).
Ms Wojciechowska submitted that there are no “special circumstances” justifying an order for costs against her. She says there was no reason that the parties could not have agreed on directions without the need for any so called “compliance hearings”. It was inherent in her submission that the Appeal Panel is conducting a new hearing on the merits so there was no need for her to articulate grounds of appeal. Ms Wojciechowska submitted that the so called “jurisdiction argument” is not an abuse of process, just a different interpretation of the legislation.
Finally, Ms Wojciechowska asked the Tribunal to take into account that she is subject to pressures because she has four proceedings in the Supreme Court and she has to work on the weekends.
Ms Wojciechowska relies on paragraphs 5 and 14 of her affidavit because she says those paragraphs paint a picture of the whole process. These paragraphs refer to other proceedings involving the same parties and allege that the Commissioner is “overly litigious” and makes “untenable decisions”. At paragraph 6 of her affidavit, Ms Wojciechowska alleges that the reason for the Commissioner not disclosing information is “their desire to cover up the corruption and or misconduct of its members/employees”. She submits that this allegation is based on her observations of how the Commissioner has conducted himself during other proceedings. She says that every document she has ever asked for will help her show misconduct or corruption. Ms Wojciechowska does not provide any evidence to support these allegations.
In determining whether there are special circumstances warranting an award of costs, we address the factors relevant to the appeal itself – its strength and whether it is misconceived: NCAT Act, s 60(3)(c), (d) and (e). Next we consider the relevance of Ms Wojciechowska’s allegations of police corruption and misconduct: NCAT Act, s 60(3)(g). Finally, we address the way Ms Wojciechowska has conducted the proceedings: NCAT Act, s 60(3)(a), (b) and (f)).
As explained above, Ms Wojciechowska’s understanding of the decision in Wojciechowska v Secretary CA is incorrect. Contrary to her submission, she must identify grounds of appeal. As she has not done so, the appeal is misconceived.
The Commissioner also submitted that there was no tenable basis for the appeal and that it was an abuse of process. These are matters about which we must make findings. Those findings cannot be inconsistent with the reasons we have given for dismissing the appeal: The Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [38].
In DYH v Public Guardian (No 3) [2022] NSWCATAP 34, the Appeal Panel accepted, at [20]-[22] that “untenable” in the context of s 60(3)(c) of the NCAT Act means “something like so weak as to be unarguable, rather than merely weak”. For the reasons we have given, Ms Wojciechowska’s submissions about the effect of the decision in Wojciechowska v Secretary CA were incorrect. That judgement does not stand for the propositions Ms Wojciechowska put forward on appeal. An appeal based on unarguable propositions has no tenable basis in law. However, we are not satisfied that Ms Wojciechowska’s appeal is an abuse of process. That characterisation suggests the existence of an ulterior purpose or motive for lodging the appeal.
Ms Wojciechowska submitted that the Commissioner is corrupt and has engaged in misconduct. Those allegations in paragraph 6 of her affidavit are not supported by any evidence. The fact that she has made unfounded allegations against the Commissioner is relevant to an assessment of whether there are special circumstances warranting an award of costs: NCAT Act, s 60(3)(g).
As the Appeal Panel said in Choi v University of Technology Sydney [2018] NSWCATAD 7 at [36], “Where applicants pursue proceedings which are devoid of merit, and when they make allegations of serious misconduct, which are not supported by evidence, there are . . . costs to the agency and to the public purse.”
The remaining circumstances relate to the way in which Ms Wojciechowska has conducted the proceedings. The procedural history shows that she did not comply with the Tribunal’s directions to identify grounds of appeal necessitating two compliance hearings. She is also responsible for prolonging the time taken to complete the proceedings by not complying with those directions.
Ms Wojciechowska submitted that the parties could have agreed on directions without the need for any so called “compliance hearings”. If Ms Wojciechowska had a good reason for being unable to comply with directions by the due date, it was her responsibility to advise the Tribunal and the other party before that time had expired. Being under pressure, having to work on weekends, and having multiple legal proceedings are not adequate explanations for not doing so.
After the decision was reserved, but before it was delivered, there was a delay in delivering these reasons because Ms Wojciechowska applied to withdraw the appeal. On the day that application was listed for hearing (14 September 2026) Ms Wojciechowska withdrew it. At the hearing we noted that Ms Wojciechowska had withdrawn her application to withdraw the appeal and made no orders. The circumstances of that application and the fact that it was withdrawn are not matters we have taken into account in deciding whether there are special circumstances warranting an award of costs.
We have found that the appeal is misconceived and has no tenable basis in law. Ms Wojciechowska has made unfounded allegations of corruption and misconduct against the Commissioner. She has also conducted the proceedings in a way that unnecessarily disadvantaged the Commissioner and has prolonged unreasonably the time taken to complete the proceedings. On the occasions we have mentioned, she has failed to comply with directions by the due date. That is a breach of the duty imposed by section 36(3) of the NCAT Act: NCAT Act, s 60(3)(f).
In DYH v Public Guardian (No 3) [2022] NSWCATAP 34 at [19], the Appeal Panel suggested that “. . . the power to award costs is to be exercised with some tolerance for self-represented litigants who do not understand legal concepts . . . (including) . . . what constitutes error for the purposes of an appeal”.
Ms Wojciechowska is self-represented but states in her affidavit that she was admitted as a solicitor on 11 August 2023. We do not take into account her legal training and experience in assessing whether the circumstances in this case are special circumstances warranting an award of costs. However, even extending Ms Wojciechowska some tolerance, she was a party to the proceedings in Wojciechowska v Secretary CA. Even if she genuinely did not understand the effect of the Supreme Court’s decision, she was repeatedly directed to identify grounds of appeal and did not do so. That conduct has disadvantaged the Commissioner, increased the costs and delayed the time taken to complete the proceedings.
Taken together these are special circumstances warranting the exercise of discretion to make an award of costs in favour of the Commissioner.
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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
Wojciechowska
Commissioner of Police, NSW Police Force
[2026] NSWCATAP 210
(2018) 265 CLR 304
(1994) 179 CLR 403