Wojciechowska v Commissioner of Police, NSW Police Force

Legislation Cited: Government Information (Public Access) Act 2009 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
The Constitution (Cth)
Administrative Decisions Tribunal Act 1997 (NSW)

Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Cachia v Hanes (1994) 179 CLR 403
Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378
FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278
Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92
Hossain v Minister for Immigration [2018] HCA 34
House v The King (1936) 55 CLR 499
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
Mason v Secretary, Department of Communities and Justice [2026] NSWCATAP 325
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77
Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338
Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62
Tydeman v Asgard Group Pty Ltd, in the matter of Asgard Group Pty Ltd [2023] FCA 486
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
Waterford v The Commonwealth (1987) 163 CLR 54
Wojciechowska v Commissioner of Police, NSW Police Force [2026] NSWCATAP 114
Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191

Texts Cited: None cited

Category: Principal judgment

Parties: Paulina Wojciechowska (Appellant)
Commissioner of Police, NSW Police Force (Respondent)

Representation: Appellant (Self-represented)
Crown Solicitor (Respondent)

File Number(s): 2025/00398630

Publication restriction: (1) Pursuant to s.107(3) of the Government Information (Public Access) Act 2009 the Tribunal receives the document lodged with the Tribunal and marked ‘Exhibit R6’ in the absence of the public and the applicant.
(2) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), until further order, the publication of the matters contained in the document marked ‘Exhibit R6’ is prohibited.
(3) Pursuant to s 64(1)(d) of the NCAT Act, until further order, the disclosure to the applicant of the contents of the document marked ‘Exhibit R6’ is prohibited

REASONS FOR DECISION

Overview

1. Ms Wojciechowska has appealed from a primary decision of the Tribunal made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). We have refused Ms Wojciechowska’s application to withdraw the appeal. We have dismissed the appeal either because Ms Wojciechowska has not identified a question of law or because she has not established the ground of appeal. We have also refused to give Ms Wojciechowska permission to appeal from interlocutory decisions prohibiting disclosure or publication of confidential evidence. Finally, we have refused her applications for costs.

Issues

1. Should the Appeal Panel exercise the discretion to allow Ms Wojciechowska to withdraw the appeal?
2. Is it procedurally unfair to the Commissioner to allow Ms Wojciechowska to amend or provide further particulars of her grounds of appeal orally at the hearing?
3. Do any of the grounds of appeal identify a question of law and, if so, has Ms Wojciechowska established that ground of appeal?
4. Should we give leave for Ms Wojciechowska to appeal from the interlocutory decisions about confidentiality and, if so, has Ms Wojciechowska established those grounds of appeal?
5. Should the Appeal Panel make a costs order in favour of Ms Wojciechowska at first instance or on appeal?

Should the Appeal Panel exercise the discretion to allow Ms Wojciechowska to withdraw the appeal?

2. The appeal was heard on 22 May 2026. We reserved our decision. On 7 August 2026, Ms Wojciechowska purported to discontinue the proceedings. The Commissioner opposed that application. On 14 September 2026 we heard Ms Wojciechowska’s application. During the course of the hearing, Ms Wojciechowska withdrew her application to discontinue the proceedings.

3. On 9 October 2026, Ms Wojciechowska renewed her application stating that she was withdrawing the appeal on a “non-admission basis” because she had lost faith in the administration of justice. The Commissioner of Police, NSW Police Force (the Commissioner) opposed the application. We decided to dispense with a hearing on the second application because we are satisfied that 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: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2).

4. Under s 55(1)(a) of the NCAT Act, the Tribunal may dismiss an appeal where the appellant withdraws the appeal: Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338 at [32].

55 Dismissal of proceedings

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

. . .

5. The discretion should be exercised judicially and should not be infected with any “House v The King” errors: House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). Those errors include acting on a wrong principle, being guided by extraneous or irrelevant matters, mistaking the facts or not taking into account some material consideration.

6. In Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338 the applicant sought to withdraw after the Tribunal had reserved its decision. We agree with and adopt the following analysis by the Appeal Panel in that case at [34]-[35]:

“[34] . . . Without attempting to provide an exhaustive or prescriptive list, where the discretion is otherwise unfettered save by the purpose and context of the NCAT Act, particularly s 36, they might include the following factors derived from Trade Practices Commission v Manfal Pty Ltd [1991] FCA 650; (1991) 33 FCR 382 per Lee J at 383-4 :

(1) The need to refrain from compelling a party to litigate against its will;

(2) The extent to which the proceedings have developed;

(3) Whether discontinuance may impose injustice on a respondent by removing an advantage that respondent may otherwise enjoy in the proceedings; and

(4) Whether the discontinuance would make any difference to the burden of litigation undertaken by the applicant and whether the application to discontinue results from a conclusion that the litigation cannot succeed against that respondent or is inspired by other reasons.

[35] Whether the other party consents may also be a relevant factor: Kameel Pty Ltd v Casey CC [2006] VCAT 526 at [2].”

7. Stewart J summarised the relevant principle in similar terms in in Tydeman v Asgard Group Pty Ltd, in the matter of Asgard Group Pty Ltd [2023] FCA 486 at [92] in the context of discontinuation of Federal Court proceedings:

“(1) The discretion whether to grant leave is wide and unfettered.

(2) It is generally undesirable to compel a party to pursue litigation it no longer wishes to pursue.

(3) However, consideration should be given to all relevant circumstances.

(4) Those circumstances include whether discontinuance against one respondent may impose injustice on another respondent by removing an advantage that respondent may otherwise enjoy in the proceedings.

(5) It is relevant to have regard to whether the discontinuance would make any difference to the burden of litigation undertaken by the applicant and whether the application to discontinue results from a conclusion that the litigation cannot succeed or is inspired by other reasons..”

8. The Tribunal may impose a condition that Ms Wojciechowska is not to bring any further proceedings in relation to the primary decision: NCAT Act, s 58. Such a condition would avoid an abuse of process. The Commissioner had submitted, in respect of the first withdrawal application, that if we granted permission for Ms Wojciechowska to withdraw the appeal, we should impose such a condition. However, the primary position of the Commissioner was that leave should not be granted for Ms Wojciechowska to withdraw the appeal. The Commissioner relied on the same submissions in the second withdrawal application.

9. Ms Wojciechowska withdrew the appeal after the decision had been reserved. There was nothing more for either party to do. She has put the Commissioner to the time and expense of responding to the appeal. Public resources have been expended in conducting the appeal.

10. One of the objects of the NCAT Act is “to ensure that the Tribunal is accountable and has processes that are open and transparent”: NCAT Act, s 3(c). Two accountability mechanism are having hearings which are open to the public and providing a written statement of reasons for decisions where required: NCAT Act, s 49 and s 62. These mechanisms may be eroded where an appellant purports to withdraw an appeal after the decision has been reserved, especially on the basis of a lack of faith in the administration of justice.

11. In all the circumstances, we dismiss Ms Wojciechowska’s second application to withdraw the appeal.

Procedural background

12. The background to these proceedings is that Ms Wojciechowska accessed the NSW Police Community Portal to report damage to a property. On 25 September 2018, two police officers attended the property to investigate. The officers recorded their interactions with Ms Wojciechowska on a body worn camera. On 29 September 2018, Ms Wojciechowska complained to the Law Enforcement Conduct Commission about the police officers’ conduct. The complaint was referred to the NSW Police Force. On 29 January 2019, the complaint was dismissed.

13. Ms Wojciechowska applied under the GIPA Act for access to information held by the Commissioner of Police, NSW Police Service (the Commissioner). In summary, that information was:

Item 1: A report of police access to the body camera footage captured on 25 September 2018.

Item 2: A report of access to the applicant's NSW Police Force Community Portal report submitted on 25 September 2018.

Item 3: A report of access to any version of the applicant's complaint provided to the NSW Police in January 2019 by the Law Enforcement Conduct Commission.

Item 4: The history of consultation of the applicant’s GIPA Act application in relation to Wayne Campbell, Tara Campbell or John Bromhead. That application seeks access to body worn video footage and COPS reports relating to the police attendance at the applicant's property on 25 September 2018.

Items (1) - (3) were to include, the date, time, and location of each instance of access, the version of each file accessed (on the assumption there are multiple versions), the identity of those accessing it and their reasons for access.

14. Ms Wojciechowska did not request access to the body camera footage, the Community Portal report or her complaint to the Law Enforcement Conduct Commission. Items 1 to 3 request information about when and where police have accessed that information.

15. The Commissioner’s ultimate decision, made on 17 June 2019, was that: there was an overriding public interest against disclosure of the information requested in Items 1, 2 and 3 and that the information identified in Item 4 was “not held”.

16. Ms Wojciechowska applied to the Tribunal for administrative review of the Commissioner’s decision. The application was heard on 24 April 2022. Ms Wojciechowska did not require any of the Commissioner’s witnesses for cross-examination and made no submissions. She declined to participate further in the proceedings after the Tribunal rejected her objections to some of the Commissioner’s evidence: Wojciechowska v Commissioner of Police [2024] NSWCATAD 290 [30] (the primary decision).

17. In the primary decision the Tribunal made the following orders partially varying but substantially affirming the Commissioner’s decision:

1. The decision of 17 June 2019 is varied by:

(a) The provision of information to the applicant by the letter of the Crown Solicitor’s Office to the applicant, dated 31 January 2020

(b) Finding that there is no Community Portal access information held by the respondent.

2. Otherwise the decision of 17 June 2019 is affirmed as the correct and preferable decision.

Right to appeal and grounds of appeal

18. Under s 80(2)(b) of the NCAT Act, Ms Wojciechowska may appeal against an “internally appealable decision” as of right on a question of law. In the Notice of Appeal Ms Wojciechowska identified several grounds of appeal which she submits were on “a question of law”. Each ground of appeal purportedly on a question of law is set out below.

19. Ms Wojciechowska has not applied for leave to appeal on any grounds other than a question of law: NCAT Act, s 80(2)(b).

20. As well as appealing from the Tribunal’s primary decision, Ms Wojciechowska has appealed from the following interlocutory decisions made on 7 April 2021:

1. Pursuant to s 107(3) of the GIPA Act, the Tribunal receives the document lodged with the Tribunal and marked ‘Exhibit R6’ in the absence of the public and the applicant.

2. Pursuant to s 64(1)(c) of the NCAT Act until further order, the publication of the matters contained in the document marked ‘Exhibit R6’ is prohibited.

3. Pursuant to s 64(1)(d) of the NCAT Act, until further order, the disclosure to the applicant of the contents of the document marked ‘Exhibit R6’ is prohibited.

21. For interlocutory decisions, Ms Wojciechowska needs the Tribunal’s permission or “leave” before she can appeal: NCAT Act, s 80(2)(a). Each ground of appeal from an interlocutory decision is set out below.

22. In written submissions and an affidavit, both dated 8 April 2026, Ms Wojciechowska identified further grounds of appeal. She provided evidence and submissions in Exhibit PXW-1. We will refer to those two documents and that exhibit as “the 8 April 2026 material”. The evidence in this bundle relating to material that was before the Tribunal below is relevant. Evidence as to what occurred in other proceedings is not relevant. In one case (a without prejudice letter served in other proceedings) the evidence is also privileged. Ms Wojciechowska gave no evidence in the primary proceedings and she has not given any persuasive reasons for us to accept any new or fresh evidence on appeal.

23. At the hearing, Ms Wojciechowska sought to amend her grounds of appeal and provide further particulars of those grounds.

Is it procedurally unfair to the Commissioner to allow Ms Wojciechowska to amend or provide further particulars of her grounds of appeal orally at the hearing?

Commissioner’s submission

24. The Commissioner submitted that almost everything Ms Wojciechowska said at the hearing had not been previously notified in writing. The Commissioner objected to the Tribunal allowing Ms Wojciechowska to identify or further particularise a question of law which had not been identified or had not been adequately particularised in the Notice of Appeal or the 8 April 2026 material. Doing so was said to be procedurally unfair.

Tribunal must give parties a reasonable opportunity to be heard

25. The Tribunal is bound by the rules of natural justice, otherwise known as procedural fairness: NCAT Act, s 38(2). There is a statutory duty to take such measures as are reasonably practicable “to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings”: NCAT Act, s 38(5)(c).

26. The Tribunal’s guiding principle is to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”: NCAT Act, s 36(2). An object of the NCAT Act is “to ensure that the Tribunal is accessible and responsive to the needs of all of its users” and “to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible”: NCAT Act, s 3(c) and (d).

Consideration

27. The Appeal Panel made directions about the filing and service of evidence and submissions on 7 November 2025 and 18 February 2026. Ms Wojciechowska did not comply with those directions. On 25 March 2026 Ms Wojciechowska was directed to comply by 8 April 2026. If she failed to comply by that date, the Appeal Panel ordered that “the appeal will thereupon be forthwith dismissed”. On 8 April 2026 Ms Wojciechowska lodged submissions. She elaborated on some of the grounds of appeal in the Notice of Appeal but submitted that other grounds were ‘self-explanatory’. On the same day, Ms Wojciechowska lodged an affidavit and Exhibit PXW-1.

28. Ms Wojciechowska was on notice that she was required to support her grounds of appeal with written submissions and evidence. Without the evidence on which she relied and the submissions explaining her grounds of appeal, the Commissioner was not able to respond to the appeal. Ultimately, Ms Wojciechowska did file the 8 April 2026 material.

29. For several grounds of appeal Ms Wojciechowska has not explained the grounds in sufficient detail for the Commissioner to respond. She elaborated on those grounds of appeal at the hearing. The Commissioner was disadvantaged by having to respond to those further submissions orally at the time. However, the Commissioner did respond orally and did not request an adjournment or further time to respond in writing. The Commissioner has been given a reasonable opportunity to be heard. In all the circumstances, it is not procedurally unfair to the Commissioner to allow Ms Wojciechowska to amend or provide further particulars of some grounds of appeal orally at the hearing.

Do any of the grounds of appeal identify a question of law? If so, has Ms Wojciechowska established that ground of appeal?

What is a ground of appeal on a question of law?

30. An appellant who invokes a provision allowing an appeal “on a question of law” must “. . . identify precisely the particular question or questions of law”. Those questions are “. . . the subject matter of the appeal to the Appeal Panel”: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22] (White J, Barrett JA and Leeming JA agreeing).

31. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]-[40], the Appeal Panel summarised the principles concerning questions of law. The following principles set out at [25] are of particular relevance in these proceedings:

“. . .

(3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

. . .

(5) A “pure question of law” does not depend on facts not found, per Bathurst CJ and Bell P stating in Orr v Cobar at [48] and [109]:

“[48] As was noted in Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 at 358; [1999] HCA 9 at [52], some questions of law can be decided without any reference to the facts, or may proceed by reference to assumed facts. These are sometimes described as ‘pure questions of law’. This was the terminology used, for example, by Leeming and White JJA in strictly confining a grant of leave to appeal in Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62 at [11]; see also Medical Council of New South Wales v Lee [2017] NSWCA 282 at [77]; and Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [66] and [125].

…

[109] Those questions of law should be, in our opinion, what are sometimes described as ‘pure questions of law’. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above.”

1. A party contending a “question of law alone” was wrongly decided, must identify the question in abstract terms. In R v PL [2009] NSWCCA 256 at [27], Spigelman CJ stated that a contention that a presiding judicial officer erred may involve a question of law alone if a stand‑alone legal proposition can be identified which was a “distinct and separate step in the reasoning process.” In Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 (Bimson, Roads & Maritime), Beech‑Jones J at [40], quoted Gibbs CJ in Williams v R (1986) 161 CLR 278; [1986] HCA 88 at p 287:

“... there is ‘a question of law alone’ if the question of law can be stated and considered separately from the facts which it may be connected in a given case.”

2. The question of law must, self‑evidently, be a question of law and not depend on the answer. For example, a question which commences with, “whether it was open to find on the facts fully found” would raise a question of law if the answer was no; but not, if the answer was yes: Orr v Cobar Management Pty Limited [2020] NSWCCA 220 at [58]–[59] (Orr v Cobar). Accordingly, such a question does not raise a pure question of law.
3. A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime at [39]. In Orr v Cobar Management, Bathurst CJ and Bell P said at [60]:

“It is well established that a question of mixed fact and law is to be differentiated from, and is not, a ‘question of law’. In Thomas v R, … Dixon J noted that a ‘mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law’. Thomas was cited with approval in Iannella v French (1968) 119 CLR 84 at 114‑115; [1968] HCA 14; see also Williams v R (1986) 161 CLR 278 at 287 and 314; [1986] HCA 88; cf. Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [13].”

4. There is a distinction between an error of law and a question of law. A question may disclose an error of law, but not raise a question of law: Kudrynski at [42]; Orr v Cobar at [52]–[54]. By way of example:

(a) The questions of whether facts as found necessarily fall within a statutory term or necessarily fall outside it, raise questions of law; whereas a question of whether it was open to find that the facts satisfied the statute may reveal an error of law but does not raise a question of law, because whether it was open may be a question of weight; and as identified above at [25(7)] is not “self‑evidently” a question of law, as it depends on the answer. (b) The question of whether there is no evidence to support the finding raises a question of law; in contrast, a mere error in the fact‑finding process does not: as explained by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (Azzopardi) at 156B–F.

5. An appeal is “on” any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid. Whilst the following cases were decided in a different context to the present, see Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353–354; [1990] HCA 33.

6. An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

7. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 Glass JA distinguished three phases of the adjudicative process namely: determining the facts by way of primary findings and inferences, directing itself as to the law and applying the law to the facts found. There is no error of law in making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. If there is literally no evidence to support a primary finding, that is a question of law which will result in error.

8. Where an appellant is self-represented and has purported to appeal on a question of law, the Appeal Panel should consider itself whether questions of law arise from the substance of the grounds of appeal: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [10]. The issue should be approached as a matter of substance and not merely of form: Kudrynski v Orange City Council [2024] NSWCA 33 at [50]. In Kudrynski at [51], the Supreme Court held 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”. That is the approach we will take.

9. We will address each of the grounds of appeal identified in the Notice of Appeal and supported by the 8 April 2026 material and Ms Wojciechowska’s oral submissions. We will ask whether the ground identifies a question of law and, if so, whether Ms Wojciechowska has established that ground of appeal.

Ground 1A: the Tribunal proceeded without jurisdiction and in breach of procedural fairness:

The Tribunal proceeded without jurisdiction because

a) Being a non-Chapter III court, it purported to exercise federal judicial power where there is a matter, one party is a State and the other party is a resident of another state; or

b) it did not exercise executive power in that it failed to conduct a merits review; or

c) it proceeded in denial of procedural fairness due to : (i) apprehended bias; and or (ii) no evidence; and or (iii) no notice.

Ground 1A(a)

35. The question of law identified in this ground of appeal is that the Tribunal’s primary decision was made outside jurisdiction because the Tribunal was impermissibly exercising federal judicial power. Such a decision involves jurisdictional error and is a question of law: Unique C**ommercial G**roup Pty Ltd v Cusumano [2024] NSWCATAP 204 at [32](8) citing Hossain v Minister for Immigration [2018] HCA 34 at [24].

36. Ms Wojciechowska has not established this ground of appeal because the Tribunal was not exercising federal judicial power.

37. In Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191 at [15], (Wojciechowska v Secretary CA) the Supreme Court characterised the substantive issue as “. . . whether the Tribunal 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.

38. The Court went on to explain at [105] that the so-called “Burns v Corbett restriction” does not apply to any of the impugned functions of the Tribunal in reviewing decisions under the GIPA Act. At [42], the 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 s 75-76 of the Constitution because the dispute was between Ms Wojciechowska (a resident of Tasmania) and the State of NSW. The Tribunal is not a court in the relevant sense.

39. In the primary decision at [17]-[20], the Tribunal cited Wojciechowska v Secretary CA and concluded that when exercising administrative review jurisdiction under the GIPA Act, the Tribunal has power to determine the proceedings even though Ms Wojciechowska is not a resident of New South Wales. The principle in Wojciechowska v Secretary CA has since been applied by the Tribunal in other proceedings where Ms Wojciechowska was the appellant: Wojciechowska v Commissioner of Police, NSW Police Force [2026] NSWCATAD 114 at [45] – [51]; Wojciechowska v Secretary, Department of C**ommunities and Justice [2026] NSWCATAP 210 at [20] – [40].

40. Ms Wojciechowska made a related submission about the jurisdiction of the Appeal Panel at [9] of her 8 April 2026 submissions. She submitted that the decision in Wojciechowska v Secretary CA means that the Appeal Panel must determine her appeal in a particular way. 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, ie 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.

41. The question of law identified in this ground of appeal is that the Appeal Panel would be acting outside jurisdiction if it considered questions of law only. Such a decision involves jurisdictional error and is a question of law: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [32](8) citing Hossain v Minister for Immigration [2018] HCA 34 at [24]. For the same reasons as given above, this ground of appeal is not established. It is inconsistent with Wojciechowska v Secretary CA. The Appeal Panel addressed and rejected an identical submission in Wojciechowska v Commissioner of Police, NSW Police Force [2026] NSWCATAP 297 at [14]-[41].

Ground 1A(b)

42. This ground is an assertion that the Tribunal failed to exercise “executive” power in that it failed to conduct a merits review. Ms Wojciechowska clarified in oral submission that her point was that the only type of executive power is merits review. If the Tribunal is restricted to exercising administrative (or executive) power, rather than judicial power, it must conduct a merits review.

43. This ground of appeal does not identify a separate question of law from Ground 1A(a). The premise on which this ground is based is that Ground 1A(a) is established. As that ground has not been established, ground 1A(b) is not established.

Ground 1A(c)

44. This ground alleges various breaches of procedural fairness. The questions of law are whether there was apprehended bias; an unfair hearing or findings of fact made on ‘no evidence’. Ms Wojciechowska did not identify any apprehended bias or unfairness, nor did she identify the findings that were made without evidence. The grounds of appeal under Ground 1A(c) are not established. Ms Wojciechowska made similar submissions under other grounds of appeal. We will consider those grounds later in these reasons.

Ground 2 - the Tribunal erred by not holding that the NSW Police Force failed to discharge the onus

45. Ms Wojciechowska submitted that the Commissioner has failed to establish that the reviewable decision is justified as required by s 105 of the GIPA Act:

In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

46. In [7] and [8] of her 8 April 2026 submissions, Ms Wojciechowska expands on her submission that the Tribunal should have decided that the Commissioner failed to discharge the burden of establishing that the Commissioner’s decision is justified.

47. In relation to Item 4, the Tribunal found that the Commissioner did not hold information about consultations with various people. At [69] of the primary decision, the Tribunal identified the issue as being whether NSW Police undertook sufficient searches to justify its decision that the information did not exist. The Tribunal concluded that there was no evidence to suggest that consultations were undertaken. On that basis, there was no reasonable grounds to believe that the information exists. The Tribunal relied on the evidence of Mr Kaidian, a review officer at InfoLink.

48. Ms Wojciechowska submitted that the evidence filed by the Commissioner contains opinions about the searches that have been undertaken but does not attach supporting documentation. According to Ms Wojciechowska, the Commissioner should have filed and served all communications with other parts of the Police Force. She submitted that s 58(1)(b) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) requires the Commissioner to lodge with the Tribunal a copy of “every document . . . that is in their possession . . .that the administrator considers to be relevant to the determination. .” In her view, the Commissioner should have produced the complete file including screen shots of the results of searches.

49. Contrary to Ms Wojciechowska’s submission, the Commissioner does not have to lodge with the Tribunal a copy of “every document . . . that is in their possession . . .that the administrator considers to be relevant to the determination. .” That requirement in s 58(1)(b) of the ADR Act is overridden by s 103 of the GIPA Act: Wojciechowska v Commissioner of Police, NSW Police Force [2026] NSWCATAP 114 at [90].

50. In relation to the Commissioner’s decision that it did not hold the information in Item 4, Ms Wojciechowska stated that there is no reason the results of one searcher should be believed more than another. In her view, the evidence was not relevant as it has no probative value. It is not enough for the Commissioner to provide general evidence expressing opinions based on incorrect assumptions. Ms Wojciechowska is relying on the ‘no evidence’ ground because she says there was no probative evidence on this issue. She added that if the Tribunal is indeed exercising merits review it could have, for example, requested evidence of snapshots of searches and technical documentation by way of affidavit.

51. The Commissioner submitted that the Tribunal referred to and accepted two affidavits of Chief Inspector McCarthy in relation to the information that existed in response to Ms Wojciechowska’s application. The Tribunal accepted that evidence as relevant and probative. Chief Inspector Holgate swore an affidavit 31 January 2020 describing the prejudice to police functions which disclosure of the information requested by Ms Wojciechowska would create.

52. A ground of appeal that the Commissioner failed to discharge the burden of establishing that the decision is justified, is another way of saying that the Commissioner’s evidence was not sufficiently probative. That is an alleged error in the fact finding process. It does not identify a question of law. The question of whether there is no evidence to support a finding is a question of law. Ms Wojciechowska did not point to any finding of the Tribunal where there was ‘no evidence’. Rather, she submitted that the evidence was not sufficiently probative or comprehensive. While identifying a question of law, Ms Wojciechowska has not established this ground of appeal.

Ground 3 – the Tribunal erred by failing to exercise the power

53. Ground 3 is that “the Tribunal erred by failing to exercise the power”. We do not understand what Ms Wojciechowska means by this ground. It appears to be unfinished. We are unable to discern a question of law.

Ground 4 – the Tribunal erred by not holding that there were other documents

54. Ground 4 is that “the Tribunal erred by not holding that there were other documents within the scope of Ms Wojciechowska’s access application”.

55. Ms Wojciechowska did not provide further submissions or particulars about this ground of appeal. We assume she is referring to the Tribunal’s finding at [43] about Item 1 of the information she requested:

I find no basis to find that there could be further information held which is responsive to the applicant's request.

56. The Tribunal gave reasons for reaching that conclusion at [39] – [42].

57. This ground of appeal does not identify a question of law.

Ground 5 –not providing access to the requested document

Submissions

58. Ground 5 is that the Tribunal erred by not “providing access to the requested document” and instead “providing access to the document that was not requested”. Ms Wojciechowska goes on to explain in the Notice of Appeal, that “. . . the Tribunal erred by providing access to the document created for the purposes of the proceedings and not providing the document requested in circumstances where there was no overriding public interest against disclosure of the requested document in general and in the way requested (i.e. as a copy)”.

59. Some background information is necessary to determine whether this ground identifies a question of law.

60. We understand this ground to be a reference, in part, to Order (1) where the Tribunal varied the Commissioner’s decision by giving Ms Wojciechowska access to the information in the Crown Solicitor’s letter to her dated 31 January 2020. Ms Wojciechowska submitted that this is not the document she requested. She elaborates in her 8 April 2026 submissions at [3] stating that she requested a copy of a document that existed in 2019, when she made her application. The Crown Solicitor’s letter, signed by Mr Bell, is not the document to which she sought access.

61. Item 1 of Ms Wojciechowska’s access application sought “History of access to any version of the Footage created from the use of the body-worn video on 25 September 2018 during the NSW Police’s visit to (a property). . .” At [4](1) the Tribunal described this item as “a report of police access to the body camera footage captured on 25 September 2018”. In his submissions the Commissioner noted that in the original decision, access to that information was refused. However, in the course of the review decision, the Commissioner decided to release that information. At the time of serving the Commissioner’s submissions in the primary proceedings, the Crown Solicitor wrote to Ms Wojciechowska providing details of the audit information derived from the VIEW IMS database, where the body worn video in question has been stored.

62. The Commissioner provided further evidence about the nature of that information in the Affidavit of Chief Inspector McCarthy, sworn 31 March 2020 at [15] – [18]. Paragraph 18 of that affidavit states that:

There is capacity to audit access to BWV footage which is stored on the VIEW IMS data base. The audit information that was provided to the applicant by the CSO letter dated 31 January 2020, (also Annexure B of this Affidavit) is the audit information which relates to the version of the BWV footage stored on the VIEW IMS.

63. Ms Wojciechowska submitted to the Tribunal below that she should be provided with the original access data, not the letter from the Crown Solicitor’s Office and that the letter does not confirm whether the access information relates to “all versions” of the video.

64. At [36] of the primary decision the Tribunal referred to s 72 of the GIPA Act relating to forms of access and s 75 relating to the creation of a new record.

72 Forms of access

(1) Access to government information in response to an access application may be provided in any of the following ways—

(a) by providing a reasonable opportunity to inspect a record containing the information,

(b) by providing a copy of a record containing the information,

(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),

(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.

(2) The agency must provide access in the way requested by the applicant unless—

(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or

(b) to do so would be detrimental to the proper preservation of the record, or

(c) to do so would involve an infringement of copyright, or

(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.

75 Providing access by creating new record

(1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information.

(2) An agency’s obligation to provide access to government information in response to an access application does not require the agency to do any of the following—

(a) make a new record of information held by the agency,

(b) update or verify information held by the agency,

(c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.

65. At [38], the Tribunal held that:

“The applicant requested a “history of access” which does not specify the form in which the “history” of access will be. The respondent has determined to provide access to the information by creating a new record. Section 75(1) of the GIPA Act allows the respondent to do so. Access in that form has been provided, as she received a copy of the document which was created in answer the applicant’s application. On that basis I am satisfied that the applicant has complied with s 72.”

66. According to the Commissioner, “. . .it may be inferred that the Tribunal took into account the fact that the information sought was an audit trail from a database system (which would not be expected to be contained in a pre-existing or standalone document) as well as the evidence at [18] of Chief Inspector McCarthy’s affidavit that the information in the letter “is the audit information which relates to the BWV footage”.

67. The Commissioner conceded that the provision of a solicitor’s letter containing government information is unusual. However, he submitted that it makes sense because the Commissioner decided to give that information for the first time when serving evidence and submissions.

68. Finally, the Commissioner submitted that this ground of appeal involves a mixed question of fact and law or, perhaps, a mixture of questions of fact and law.

Consideration

69. The questions of whether facts as found necessarily fall within a statutory term or necessarily fall outside it, raise questions of law. This ground of appeal does not identify a question of law because it is based on an incorrect statement of the law. A person does not have a legally enforceable right to be given access to “documents”. The legally enforceable right is for an applicant to be given access to “information”: GIPA Act, s 9.

70. If the word “information” is substituted for the word “document” in Ms Wojciechowska’s ground of appeal, there is a question of law as to whether giving access to the information in the Crown Solicitor’s letter is “making and providing access to a new record of that information” as provided for in s 75(1) of the GIPA Act. There is no statutory term or requirement that the Commissioner confirm that the information relates to “all versions” of the video.

71. Ms Wojciechowska has not established this ground of appeal because s 75(1) expressly empowers an agency to provide access to government information by creating a new record. The fact that the Crown Solicitor’s letter did not exist at the time of the access application is not relevant. The government information to which access was given was the information described in the access application, being information that existed at the time the application was made. The Tribunal did not err by finding that the content of the Crown Solicitor’s letter was a new record of the requested information.

Ground 6 – error in not disclosing confidential information

72. Ground 6 is that the Tribunal erred by upholding the decision that there was an overriding public interest against disclosure of any parts of the documents not disclosed to Ms Wojciechowska. In oral submissions Ms Wojciechowska said that she does not know what is in the confidential bundle of material so she cannot assess whether she has been given all the information to which she is entitled.

73. Despite ruling that there was an overriding public interest against disclosing certain information, Ms Wojciechowska submitted that she should have been given that information. She has not identified a question of law and we are unable to discern one from these submissions.

Ground 7 – the Tribunal took too long to decide the matter

74. The hearing was on 24 April 2022. Final submissions were not due until 14 September 2023. The Tribunal handed down the decision on 1 October 2024. It took the Tribunal 12 months and 2 weeks to deliver the written reasons for decision. The Tribunal does not explain that delay in the reasons for decision.

75. The effect of the delay on the reasons needs to be identified and established in a manner that constitutes an appealable error, such as a denial of procedural fairness: NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 at [5] (per Gleeson CJ) and [78] (per Kirby J); Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62 at [2] per Allsop CJ; citing Monie v Commonwealth [2005] 63 NSWLR 729).

76. According to Ms Wojciechowska, the delay came about because the Tribunal did not want to deal with her submissions and evidence. She submitted that the delay leads to a reasonable apprehension of bias. The so-called ‘double might’ test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6] requires that a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to a case. A ground of appeal identifying bias in that sense is a ground of appeal on a question of law.

77. Contrary to Ms Wojciechowska’s submission it cannot be inferred that the delay was because the Tribunal did not want to deal with her submissions and evidence. There are other plausible explanations. Ultimately the Tribunal did provide reasons for decision. There is no basis for concluding that a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the case. Ms Wojciechowska has not established the ‘double might’ test in Ebner.

Ground 11 – too much weight to the Commissioner’s evidence

78. Ground 11 is that the Tribunal erred by giving too much weight to the evidence proffered by the Commissioner. As explained in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156B–F a question that relates to the fact finding process is not generally a question of law. The weight attributed to certain evidence does not identify a question of law.

Ground 12 – failure to consider all the materials

79. Ground 12 is that the Tribunal did not consider all the materials before it. In oral submissions Ms Wojciechowska said that in the application for information under the GIPA Act, she had ticked the option of wanting to be provided with copies of the information. She says that is the “default” position unless she seeks “view” access. If access is given in a different way, there has to be an overriding public interest against disclosure. According to Ms Wojciechowska, that has not been established.

80. If Ms Wojciechowska is submitting that the Tribunal failed to consider her preference as to how she wanted to be provided with access to the information, that does not identify a question of law.

Grounds of appeal from interlocutory confidentiality orders – grounds 8, 9 and 10

Orders challenged

81. In relation to interlocutory confidentiality orders, the Tribunal outlined the following history and conclusion at [51] – [52] of the primary decision:

51 The information responsive to the Law Enforcement Conduct Commission access request is claimed to be subject to an overriding public interest against disclosure. The information, being the very information that is in issue in these proceedings, falls within the scope of s 107(2) and (3) of the GIPA Act, and must be treated confidentially. In that regard the Tribunal made the following non-publication order on 7 April 2021:

1. Pursuant to s.107(3) of the Government Information (Public Access) Act 2009 the Tribunal receives the document lodged with the Tribunal and marked ‘Exhibit R6’ in the absence of the public and the applicant.

2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), until further order, the publication of the matters contained in the document marked ‘Exhibit R6’ is prohibited.

3. Pursuant to s 64(1)(d) of the NCAT Act, until further order, the disclosure to the applicant of the contents of the document marked ‘Exhibit R6’ is prohibited

52 The applicant objected to the orders at the hearing before me on the basis that they were too wide and made without power. I find no basis for the submissions that the Tribunal did not or does not have the power to make non-publication orders. Given my findings in these proceedings regarding disclosure of the documents, I have determined that the non-publication orders should remain in place.

Relevant legislative provisions

82. Section 64 of the NCAT Act provides that:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

83. Section 66 of the NCAT Act provides that:

66 Effect of Government Information (Public Access) Act 2009

(1) General rule Except as provided by this section, nothing in this Act requires or authorises any person or body to disclose information to another person or body if there is an overriding public interest against the disclosure of the information under the Government Information (Public Access) Act 2009.

(2) Disclosure to person or body other than Tribunal The provisions of the Government Information (Public Access) Act 2009 continue to apply to the disclosure of information to any person or body other than to the Tribunal as if this Act had not been enacted.

(3) Disclosure to Tribunal If a provision of this Act requires or authorises any person or body to disclose information to the Tribunal in relation to any proceedings before it and there is an overriding public interest against the disclosure of the information under the Government Information (Public Access) Act 2009—

(a) the Government Information (Public Access) Act 2009 does not prevent the disclosure of the information to the Tribunal, and

(b) the Tribunal is to do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings unless the person or body disclosing the information to the Tribunal consents to the further disclosure.

(4) Certificates by Secretary or General Counsel of the Cabinet Office concerning Cabinet information The Secretary or General Counsel of the Cabinet Office may certify that information is Cabinet information. Any such certificate—

(a) is conclusive of that fact, and

(b) authorises any person who would otherwise be required under this Act to lodge a document containing that information with (or disclose the information to) the Tribunal to refuse to lodge the document with (or disclose the information to) the Tribunal.

(5) Definitions In this section—

Cabinet information means information that is Cabinet information under the Government Information (Public Access) Act 2009.

disclose has the same meaning as in the Government Information (Public Access) Act 2009.

84. Section 107 of the GIPA Act provides that:

107 Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of—

(a) the public and the applicant, and

(b) the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

Appeals from interlocutory decisions require leave

85. As the orders challenged by grounds 8, 9 and 10 are decisions made by the Tribunal concerning “the prohibition or restriction of the disclosure, broadcast or publication of matters” they are ‘interlocutory decisions’: NCAT Act s 4 (definitions). An appeal from an interlocutory decision may only be made with the leave of the Appeal Panel: NCAT Act, s 80(2)(a). Ms Wojciechowska did not apply for leave in the Notice of Appeal. Nevertheless, we will treat Grounds of Appeal 8, 9 and 10 as applications for leave to appeal from the interlocutory decisions made on 7 April 2021.

86. The principles were summarised in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [34]-[35]. The Appeal Panel has a discretion to grant leave and there are no exhaustive criteria governing the grant of leave. In particular, we highlight the following at [35] (citations omitted):

“…

(3) Leave should only be granted where there are substantial reasons to allow an appellate review.

…

(6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal.

…

(8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body.”

Grounds of appeal and consideration

87. Ground 8 challenges the non-disclosure orders made by the Tribunal in relation to the information requested under Item 3:

“History of access to any version of my complaint forwarded to the NSW Police in January 2019 by the Law Enforcement Conduct Commission including: dates and times of access; persons accessing” and other details.

88. Ground 9 is that the Tribunal erred by making orders under s 107(2) of the GIPA Act and/or s 64 of the NCAT Act when there was no government information in respect of which a conclusive presumption against disclosure applied. As we have said, the Tribunal did not make any orders under s 107(2) of the GIPA. The 7 April 2021 orders were made under s 107(3).

89. Ground 10 is that the Tribunal had no power and/or no jurisdiction to make any non-publication and non-disclosure orders in the terms made.

90. In relation to order 1, which was made under s 107(3) of the GIPA Act, the Commissioner filed confidential Exhibit 1. In submissions dated 31 January 2020 at paragraph 16, the Commissioner stated that:

Confidential Exhibit 1, which comprises the LECC Referral access information, is filed on a strictly confidential basis. (Emphasis added.)

91. Section 66(3) of the NCAT Act enables the Commissioner to disclose to the Tribunal information that is subject to an overriding public interest against disclosure under the GIPA Act. Under s 66(3)(b) of the NCAT Act, the Tribunal is required to “. . .do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings unless the person or body disclosing the information to the Tribunal consents to the further disclosure.”

92. Ms Wojciechowska submitted that the Commissioner did not file any table of contents for the confidential bundle (Ex R6) and that the word “comprises” in the Commissioner’s 31 January 2020 submission means “includes”. She says she knows the material “includes” the LECC Referral access information but does not know if there is anything else. She refers to the use of this language as the Commissioner’s “exhausting tricks” and adds that there should be as much procedural fairness as possible.

93. Relying on s 107 of the GIPA Act, Ms Wojciechowska submitted to the Tribunal that she should have access to that information because it had not yet been determined that there was an overriding public interest against disclosure. Alternatively, such an order should not prohibit disclosure forever. That is not the purpose of the GIPA Act.

Consideration of Grounds 8, 9 and 10

94. Ms Wojciechowska’s submission is misconceived. The word “comprises” in the context used by the Commissioner means “2. to consist of; be composed of”: Macquarie Dictionary online https://www.macquariedictionary.com.au/. “Comprises” does not mean “includes”.

95. In relation to Order 1 made on 7 April 2021, the Tribunal has power to make that order under s 107 of the GIPA Act. The Appeal Panel dealt with the meaning of s 107 the GIPA Act in Mason v Secretary, Department of Communities and Justice [2026] NSWCATAP 325 at [36]-[108] and [119]-[190].

96. There is no error of principle resulting in substantial injustice which would justify leave being granted for Ms Wojciechowska to appeal from this interlocutory decision.

97. In relation to orders 2 and 3 made on 7 April 2021, the Tribunal need only be satisfied that “it is desirable . . by reason of the confidential nature of any evidence or matter or for any other reason” to exercise the power to make orders under s 64(1)(c) and (d) of the NCAT Act. The Tribunal was satisfied. Again, there is no error of principle resulting in substantial injustice which would justify leave being granted for Ms Wojciechowska to appeal from these interlocutory decisions.

Other grounds

Tribunal must make decisions not findings

98. We understand Ms Wojciechowska’s submission in her 8 April 2026 submissions at [7] to be that access applications are decided by decisions and not by findings. That may be a reference to the Tribunal’s order (1)(b) varying the Tribunal’s decision by “finding” that there is no Community Portal access information held by the respondent. This may be seen as an assertion that the Tribunal has exceeded its jurisdiction by making orders that are beyond its statutory powers to make. That is a question of law.

99. An agency may decide an access application by “deciding that the information is not held by the agency”: GIPA Act 58(1)(b). The Tribunal has power to review that decision: GIPA Act, s 80(e). It may make a new decision in variation of or in substitution for that decision: ADR Act, s 63(3)(b) and (c). Expressing the new decision as a “finding” rather than a “decision” does not mean that the Tribunal acted without jurisdiction. Using a related word (“finding”) for a statutorily defined word (“decision”) is a mistake of form, not substance. This ground of appeal is not established.

Should the Appeal Panel make a costs order in favour of Ms Wojciechowska at first instance or on appeal?

NCAT’s power to award costs

100. The costs rule is that each party pays their own costs unless the Tribunal is satisfied that special circumstances exist warranting an award of costs: NCAT Act, s 60.

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.

101. 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).

102. 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].

103. To this list we would add that the factors in s 60(3) of the NCAT Act are not “restrictive” or “mandatory”: Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386 at [68]. They include “any other matter the Tribunal considers relevant”: NCAT Act, s 60(3)(g).

Ms Wojciechowska’s application for costs in the primary proceedings

104. Ms Wojciechowska’s primary submission is that there is no power to award costs because there is no power to do so under the GIPA Act. That proposition is incorrect. The power in s 60 of the NCAT Act applies to administrative review proceedings under the GIPA Act. If she is wrong about that, Ms Wojciechowska applies for costs at first instance and on appeal. Ms Wojciechowska did not apply for costs in the primary proceedings. There is no decision about costs from which she can appeal.

Ms Wojciechowska’s application for costs on appeal

105. In the Notice of Appeal, Ms Wojciechowska applied for a costs order in her favour. On 7 November 2025, the Appeal Panel directed her to lodge with the Registry and give to the Respondent “the Appellant’s written submissions in support of the appeal”. The Notes to those orders included the following:

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.

106. Ms Wojciechowska lodged submissions on 8 April 2025. Those submissions say nothing about costs. The Commissioner submitted that Ms Wojciechowska should be taken to have abandoned that application.

107. 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.

108. 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.

109. The Commissioner did not apply for costs.

Orders

(1) A hearing is dispensed with in respect of the appellant’s application to withdraw the appeal, and the withdrawal application is determined on the papers.

(2) The appellant’s application to withdraw the appeal is dismissed.

(3) The appeal from the Tribunal’s final decision of 1 October 2024 is dismissed.

(4) Leave is refused for the appellant to appeal from the Tribunal’s interlocutory decisions of 7 April 2021.

(5) The appellant’s application for costs in the primary proceedings is dismissed.

(6) The appellant’s application for costs in these proceedings is dismissed.

**********

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