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[2026] NSWSC 961
Supreme Court of NSW
2026-08-06
Dhanji J
Original judgment source is linked above.
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 (No 2) [2026] NSWSC 961
Hearing dates: 6 August 2026
Date of orders: 6 August 2026
Decision date: 06 August 2026
Jurisdiction: Common Law
Before: Dhanji J
Decision: (1) Grant leave to the plaintiff to file an amended summons by 4pm on 20 August 2026 in accordance with my reasons on this motion.
(2) The plaintiff’s motion is otherwise dismissed.
(3) The hearing of the summons dated 13 July 2023 before me today is vacated.
(4) The matter is listed for mention before the Registrar at 11am on 7 August 2026 to be joined with the plaintiff’s summons filed on 8 May 2026 in matter number 2026/00190330.
(5) The plaintiff is to pay the first defendant’s costs of the motion.
Catchwords: CIVIL PROCEDURE – notice of motion – self-represented litigant – ambiguity as to whether summons seeks judicial review or appeal – motion to amend summons previously dismissed with costs – where additional summons filed to ventilate constitutional validity argument – where argument needs to be raised on present summons – leave granted to file amended summons
CIVIL PROCEDURE – summons – hearing vacated to allow plaintiff to file amended summons – costs
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Supreme Court Act 1970 (NSW) ss 65, 69
Uniform Civil Procedure Rules 2005 (NSW) rr 36.15, 36.16, 42.1, 42.7
Cases Cited: Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
New South Wales v Wojciechowska (2025) 283 CLR 148; [2025] HCA 27
Wojciechowska v Commissioner of Police, New South Wales Police Force [2026] NSWSC 201
Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191
Category: Procedural rulings
Parties: Paulina Wojciechowska (Plaintiff)
Commissioner of Police, NSW Police Force (First Defendant)
New South Wales Civil and Administrative Tribunal (Second Defendant)
Representation: Counsel:
H Ryan (First Defendant)
Plaintiff (self-represented)
Solicitors:
NSW Crown Solicitor (First Defendant)
Submitting Appearance (Second Defendant)
File Number(s): 2023/222388
Publication restriction: Nil
HIS HONOUR: Listed before me for hearing today is the plaintiff’s summons stamped as filed on 13 July 2023, although I note, and the plaintiff stresses, there is another copy of the same document indicating it was filed on 12 July 2023. Also listed before me for hearing today is the plaintiff’s notice of motion filed on 26 March 2026.
The plaintiff appeared before me by AVL representing herself. I pause to note that the plaintiff is admitted as a solicitor and, as will become apparent from these reasons, has some experience of litigation.
The first defendant is the New South Wales Commissioner of Police, who is the active defendant in the proceedings and is represented by Ms Ryan of counsel. The second defendant, the New South Wales Civil and Administrative Tribunal (the Tribunal), has filed a submitting appearance.
A court book was tendered before me. Included in that court book by way of evidence are four affidavits of the plaintiff dated, respectively, 26 March 2026, 1 June 2026, 12 June 2026 and 30 July 2026 and documents exhibited by them. Additionally tendered before me was the transcript of a hearing of an earlier motion heard before Elkaim AJ on 10 March 2026.
The plaintiff’s summons seeks orders setting aside and declaring invalid orders of the Tribunal made on 7 February, 16 February and 12 April 2023. Those orders were made by the Appeal Panel in the context of an appeal from a decision of the Tribunal at first instance relating to the plaintiff’s application to the first defendant under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”).
On 7 February 2023 the Appeal Panel made orders refusing leave to appeal and dismissing the appeal together with orders prohibiting publication and disclosure of certain information. Procedural orders were subsequently made on 16 February 2023 in relation to a costs application proposed by the first defendant. On 12 April 2023 orders were made dispensing with an oral hearing on costs and ordering that the plaintiff pay an amount of $7,309.76 to the first defendant.
In accordance with the procedure provided by s 78 of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”), the first defendant subsequently obtained a certificate from a registrar of the Tribunal which was then filed in the Local Court, resulting in what is styled as an “order” of the Local Court, requiring the plaintiff to pay that amount. That order is, as things stand, enforceable as a judgment. I say “as things stand” as there is, it appears, an issue in relation to the constitutional validity of s 78 which the plaintiff now seeks to ventilate, albeit it it is not a matter raised in the summons as it stands.
The summons also seeks costs of the proceedings before the Tribunal and orders in substitution for orders made by the Tribunal. A stay of the costs “order” of the Local Court was also sought essentially as interim relief pending the hearing of the summons.
There were two potential avenues for review of decisions of the Tribunal to this Court. An appeal is available pursuant to s 83 of the CAT Act limited to error of law. Alternatively judicial review is available, invoking the supervisory jurisdiction of this Court and this Court’s powers to make orders in the nature of certiorari, prohibition and mandamus as provided by ss 65 and 69 of the Supreme Court Act 1970 (NSW) (“Supreme Court Act”). I do not understand that there would be any necessary obstacle in proceeding by those alternative routes in the one summons. Nonetheless, the present summons has been understood as a summons for judicial review of decisions of the Tribunal and the order of the Local Court of 5 July 2023. Certainly it is headed “Summons (Judicial Review)”. There is however some ambiguity insofar as it seeks an extension of time to seek leave to appeal and leave to appeal. The grounds themselves do not specifically assert jurisdictional error or error of law on the face of the record. Nor is there any reference to s 65 or s 69 of the Supreme Court Act. Elkaim AJ, on the motion before him, regarded it as exclusively an application for judicial review: see Wojciechowska v Commissioner of Police, New South Wales Police Force [2026] NSWSC 201 (“Wojciechowska”) at [13]-[14].
Styling the summons as limited to judicial review has some potential significance. Having been unsuccessful in her motion seeking to amend the summons before Elkaim AJ, the plaintiff filed a further summons on 8 May 2026 relating to the same Tribunal proceedings together with another matter in which the plaintiff was unsuccessful before the Tribunal. That summons is styled as an appeal. I will return to the significance of this in due course.
Returning to the present motion, it, amongst other things, seeks leave to amend the summons. A proposed amended summons is annexed to the plaintiff’s affidavit of 12 June 2026. Given the listing of the summons today for hearing, there is a need to resolve the motion including the application for amendment in order that the hearing on the summons can either proceed or such other steps as might be appropriate be taken. Certain orders on the motion were not opposed. Having regard to the first defendant’s position and the reasons for it I made orders extending time for the filing and serving of the affidavit in support of the motion and additionally directed that the plaintiff be permitted to appear by way of AVL. Additionally, it was accepted that it was appropriate to amend the summons to add the Local Court as a defendant. That should be done. Other amendments which make no substantial difference to the arguments on appeal were not opposed, primarily for reasons of efficiency. Other amendments as set out in the proposed amended summons were the subject of opposition. It will be necessary in due course to deal with those opposed amendments together with the other orders sought on the motion.
| Date | Event | | September 2018 | Officers of the New South Wales Police Force (NSWPF) attended the property of the plaintiff in NSW. She was dissatisfied with the conduct of the Police, both during and after their visit to her property. | | 5 June 2020 | The plaintiff applied to the NSWPF under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), for access to information relating to a police station, including GPS data for police vehicles and names and ranks of certain persons. | | 6 July 2020 | An authorised officer of the NSWPF decided that parts of the information sought were not held by the NSWPF but also allowed access to some information. | | 29 July 2020 | The NSWPF made a supplementary decision to provide access to additional information. | | 31 August 2020 | The plaintiff applied to the Information Commissioner to review both decisions of the NSWPF. | | 11 November 2020 | The Information Commissioner determined that the NSWPF’s decisions were justified. | | 24 November 2020 | The plaintiff applied to [the Tribunal] seeking administrative review of the NSWPF’s decisions on 6 and 29 July. | | 18 December 2020 | The plaintiff made an application that [the Tribunal] decline to determine the application for review on the basis that it invokes federal jurisdiction where a matter is between a State and a resident of another State. | | 19 April 2021 | Review hearing proceeded before Senior Member Dinnen of the Administrative and Equal Opportunity Division of [the Tribunal]. Certain confidentiality orders were made orally, and the plaintiff then sent an email requesting reasons for the orders. It was also determined that, contrary to the plaintiff’s application, [the Tribunal] had jurisdiction to hear and determine the review application. | | 16 July 2021 | [The Tribunal] affirmed the decision of the NSWPF that it did not hold certain information sought by the plaintiff or to provide access to other information she sought (Wojciechowska v Commissioner of Police [2021] NSWCATAD 210). | | 13 August 2021 | The plaintiff sought leave to appeal [the Tribunal’s] decision of 16 July 2021 (as well as the confidentiality orders made) to [the Tribunal’s] Appeal Panel. | | 17 December 2021 | Hearing of the [the Tribunal] Appeal of the decision of 16 July 2021 before Principal Member Simon and Senior Member Lucy. | | 7 February 2023 | [The Tribunal’s] Appeal Panel refused to grant leave to appeal the [Tribunal] decision of 16 July 2021, dismissed the appeal, prohibited the publication and disclosure of confidential material filed by the Commissioner in the proceeding, and made directions for the making of a costs application (Wojciechowska v Commissioner of Police, NSW Police Force [2023] NSWCATAP 34). | | 16 February 2023 | The Appeal Panel made orders varying the timetable for the costs application. | | 12 April 2023 | The Appeal Panel made orders on the papers dispensing with an oral hearing on the issue of costs, noting that no materials were received from the plaintiff and also ordered the plaintiff to pay the Commissioner $7,309.76 (Wojciechowska v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATAP 104). | | 5 July 2023 | The Commissioner filed a certified copy of the costs order in the NSW Local Court, which made an order directing the plaintiff to pay the $7,309.76 (under s 78(3) of the [CAT Act] a certificate so filed operates as a judgement of the court). | | 13 July 2023 | The plaintiff commenced these current proceeding by summons, seeking, inter alia, that orders made by the [Tribunal] Appeal Panel on 7 February, 16 February and 12 April 2023, and the order of the Local Court on 5 July 2023, be set aside and declared invalid, on the basis that the Appeal Panel lacked power to make its orders, because to do so involved impermissibly exercising federal judicial power. | | 17 August 2023 | The NSW Court of Appeal delivered a judgement (in proceedings to which the plaintiff was also a party) dealing with similar legal issues to the current proceedings – whether [the Tribunal] exercises judicial power when it determines GIPA Act proceedings and thus cannot determine GIPA Act applications made by interstate residents (like the plaintiff) because of the Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 limitation (Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191). The Court of Appeal unanimously determined that [the Tribunal] does not exercise judicial power when determining applications under the GIPA Act. The Court also concluded that [the Tribunal] does exercise judicial power when it determines applications under the Privacy and Personal Information Protection Act 1998 (NSW), partly because of the enforceability of orders made under the Act by using the mechanism in s 78 of the [CAT Act]. [That conclusion would, if correct, also apply to an order for costs under the GIPA Act on the basis that the mechanism provided in s 78 of the CAT Act applies in the same way.] | | 6 August 2025 | The High Court allowed the State’s appeal in New South Wales v Wojciechowska [(2025) 283 CLR 148;] [2025] HCA 27, effectively saying that the availability of the s 78 registration mechanism in the [CAT Act] does not make an order of NCAT to pay an amount an exercise of judicial power. | | 16 October 2025 | The plaintiff filed a notice of motion seeking leave to amend her originating process and file the draft summons annexed to her affidavit of 15 October 2025. |
The hearing before his Honour proceeded, as I have indicated, on the basis that the summons, that is the summons now before me for hearing, seeks judicial review. The proposed amended summons was understood as being an appeal, presumably pursuant to s 83 of the CAT Act: see Wojciechowska (at [13]-[14]). In response to the orders of Elkaim AJ dismissing her motion, the plaintiff filed the further summons of 8 May 2026.
Prayers 1 and 2 of the present motion seek that the judgment of Elkaim AJ in relation to costs be set aside and in substitution thereof an order be made that costs be in the cause. It also seeks that his Honour’s findings as to the facts and merits in relation to the making of those orders be set aside. There is no capacity to set aside his Honour’s factual findings in the proceedings heard by him and such findings are not, in any event, binding on me.
To the extent that the plaintiff seeks to set aside his Honour’s orders, reliance is placed on the power to do so in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Rules 36.15 and 36.16 provide:
36.15 General power to set aside judgment or order (cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.
36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9)
(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
(2) The court may set aside or vary a judgment or order after it has been entered if—
(a) it is a default judgment (other than a default judgment given in open court), or
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or
(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.
(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it—
(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or
(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.
(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).
(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.
Rule 36.15 does not apply. The orders were not made “irregularly, illegally or against good faith”. I do accept that r 36.16(3A) potentially applies in that the plaintiff’s motion for the setting aside or variation of Elkaim AJ’s orders was filed within 14 days of the order. I therefore have the power, “if appropriate”, to set aside or vary the judgment or order. The plaintiff submitted that I would do so because his Honour was in error in stating that the ordinary rule, as applicable for motions, is that costs follow the event.
In the plaintiff’s submission the ordinary rule in relation to motions is that costs should be in the cause. I do not accept the plaintiff’s submission in that regard. The ordinary rule, as referred to by Elkaim AJ, is reflected in rr 42.1 and 42.7 of the UCPR. Doubtless, if there are reasons to do so, some other order may be made. Doubtless, his Honour was aware of that fact. There is no substance in the plaintiff’s complaint with respect to his Honour’s view as to the ordinary rule.
It was also submitted that Elkaim AJ’s order was made in a context where, rather than looking at whether grounds were arguable, his Honour looked at whether they would succeed. Again, I do not accept that submission. His Honour said at [33]:
“Although I have singled out some grounds for particular mention, I have examined all of the proposed grounds to find at least one which seems to have substance and clarity of meaning. I have not been able to do so, although I accept that within all of the grounds is the plaintiff’s concern about, especially, the Appeal Panel’s powers in relation to making costs orders.”
I am conscious that I am not hearing an appeal against the decision of Elkaim AJ. Nonetheless, I have considered the arguments of the plaintiff. Nothing in those arguments satisfies me that it is appropriate to set aside his Honour’s orders and the relief sought in prayers 1 and 2 must be refused.
Prayers 3 and 4 of the motion were not pressed.
Prayer 5 of the motion seeks to consolidate these proceedings with the summons filed on 8 May 2026. That order was not initially pressed. However, that may need to be revisited in the light of other orders to be made in the context of this motion.
Prayer 6 seeks costs. The appropriateness of that order is dependent upon the determination of the substantive orders sought by the motion and a matter to which I will return.
Prayer 7 seeks an amendment of the summons, a matter to which I will return.
Prayer 8 sought an extension of time to file and serve the affidavit in support of the motion and has been determined.
Prayer 9 sought leave to amend the motion to deal with a potential eventuality that is no longer relevant and does not need to be determined.
Prayer 10 is not pressed.
Prayer 11 sought that the plaintiff be allowed to appear by AVL. That order has been made.
It is convenient to deal with the arguments by reference to the proposed amended summons. As exhibited by the affidavit and tendered in evidence, the proposed amended summons sought to add new proposed orders 1 and 2. In the event, the application to add those proposed orders was not pressed. The proposed amended summons seeks to amend prayer 15(a) to delete the words currently appearing and substitute them with the words “that the original download of GPS data for BL81 for 25 September 2018 be provided to the first plaintiff within 29 days of this order”. That amendment was pressed and is opposed by the first defendant.
The proposed amended summons also seeks to amend various matters under the heading “Details of Decision”. Those various amendments were not opposed. The remaining amendments relate to the grounds on which the plaintiff seeks to argue she is entitled to the relief sought.
There was a proposed amendment to Ground 2 in its current form. It is a complaint that the Appeal Panel had no power or jurisdiction to make any of the orders under review. The amendment seeks to include in that the Tribunal at first instance, and to then provide various bases on which there was no such power or jurisdiction, set out in sub-grounds (a) through to (j). They are, to some extent, particulars as to why the Tribunal had, on the plaintiff’s case, no power or jurisdiction.
The first defendant, while opposing the amendment, candidly conceded that it was in a position to meet the arguments brought. The real issue in relation to the grounds, and indeed the amendment more generally, are the proposed amendments to add Ground 4, and a further ground which appears as Ground 12 but should be Ground 5. They are that the “Local Court of NSW had no power and or no jurisdiction to make any of the orders under review” and “The Local Court proceeded without power and without jurisdiction”. Respectfully, it is not clear what, if anything, Ground 5 adds to Ground 4. It is also, simply looking at the grounds, not clear as to the basis or bases on which those grounds are based. The argument is somewhat clearer from the plaintiff’s written submissions, filed on 27 July 2026, addressing this issue. The submissions state:
“[The Local Court] has no power and no jurisdiction to make ex-parte judgments without reasons, notice to all parties, or to file or register the Certificate. If an attempt is made to rely on s 78(4) as a source of power to register, [the plaintiff] says it does not apply to the Cost Orders. In any event, by make judgments based on the Certificates, [the Local Court] becomes a machine for churning out judgments thus breaching the principle in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 and, hence, s 78 has to be struck out.”
The first defendant indicated that he was in a position to answer the arguments raised in the first two sentences of that paragraph. Insofar as the final sentence raises an argument based on the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 (“Kable”), the first defendant submitted that this raises an issue of substance which the first defendant was not able to meet, in effect, on the run. So much can be accepted.
The first defendant points out that the plaintiff, in the proceedings before Elkaim AJ, relied on a proposed amended summons. In that summons it was proposed to include as Ground 31 the following:
“Any filing and or registration of NCAT orders (such as the [costs] orders under the appeal) with the Local Court of NSW breaches the prohibition in Kable.”
In other words the submission was made that the plaintiff has already sought to expand the appeal to include this complaint and has been unsuccessful. It is submitted that she ought not now, on the day of the hearing, be allowed to achieve what was previously rejected.
There is some force in the first defendant’s submission. That said, there does seem to me to have been, following the decision of Elkaim AJ, some crystallisation of the argument as it stood before his Honour. There is at least an arguable question as to the validity of s 78 of the CAT Act based on the principle in Kable. That question, it seems to me, is whether s 78 of the CAT Act is invalid or at least in part invalid on the basis that it is contrary to the Constitution for the reason that it breaches the principle in Kable. That question in turn becomes whether the exercise by the Local Court of the task required of it by s 78 of the CAT Act is inconsistent with the role of that Court, that is the Local Court, as a repository of federal judicial power under Ch III of the Constitution.
At the hearing before Elkaim AJ it was submitted on behalf of the first defendant that there was no substance in the various proposed grounds sought to be relied upon by the plaintiff, subject to the concession that there was “one ground that is of a slightly different character”, referring to proposed Ground 31, which I have set out above.
What was put before Elkaim AJ is that what it “hinted at is that s 78 might be invalid”. It was put to Elkaim AJ that the first defendant was not in a position to assess the merits of that ground because “that ground is obscure, as framed”, and the first defendant maintained that the amendment should not be permitted. There seems to have been a suggestion that the plaintiff might possibly be referred for pro-bono assistance on the issue (which might warrant allowing the amendment) but had, historically, not wished to take that course. In the light of that position his Honour made his decision refusing the plaintiff leave to amend.
Since that time, as I have said, essentially in response to his Honour’s decision, the plaintiff filed her summons of 8 May 2026.
Various appeal grounds are raised in the summons of 8 May 2026. One of those is 8(f) which is to the following effect:
“The Local Court proceeded without power and without jurisdiction because:
…
(f) the Local Court of NSW has no power and no jurisdiction to accept for filing or register NCAT [Appeal Panel] orders (such as the [costs] orders under the appeal) as any such conferral of power is invalid because it breaches the principle in Kable…”
Whilst the first defendant submitted that the articulation of the argument remained vague, it seems to me that what the plaintiff proposes to argue in the summons of 8 May 2026 squarely raises the question of constitutional invalidity of s 78 of the CAT Act based on Kable, albeit, it might be said, somewhat belatedly.
The difficulty faced by the plaintiff however is that if this present summons is resolved against her she is likely to face an argument that the 8 May 2026 summons is an abuse of process insofar as it relates to the same Tribunal proceedings. Styling the second summons as an appeal as opposed to judicial review may not answer this. Whilst there are two Tribunal proceedings the subject of that summons, it is only in one of the proceedings that a certificate has been registered with the Local Court pursuant to s 78. In other words determination of the present summons, without determination of the Kable issue, may, and indeed it seems is likely, to shut the plaintiff out from arguing that matter.
While the plaintiff has been the subject of other costs orders by the Tribunal, I am told none of those orders have been registered with the Local Court. The question then is whether the plaintiff should be shut out from bringing the argument based on Kable. On the one hand this case is about an order for costs in an amount of some $7,300. It is, regrettably, one of those cases where the costs have already swamped the amount originally in issue. Further, the reality is that the plaintiff is subject to an order from the Tribunal requiring her to pay that money. Should the plaintiff be allowed to argue about enforceability in the present circumstances when she indeed has that obligation? On the other hand there is force in the first defendant’s position that there is no substance in the various grounds currently on foot and that the Kable argument may be the one argument that does have substance.
I am ultimately of the view that in these circumstances, whilst the late raising of the issue is regrettable, the plaintiff should not be shut out from making the argument. The nature of the argument and the difficulties in responding to it are such that the only way in which the plaintiff can be sensibly allowed to make the argument is by vacating the present hearing and adjourning the matter. If that is to occur, the sensible course is to join the proceedings with the summons of 8 May 2026. That will of course also obviate any need to deal with any argument as to a stay in relation to that summons.
In terms of the orders to be made to achieve this, the current amended summons does not squarely address the Kable issue. Certainly it does not articulate it in the way that has been done in the summons of 8 May 2026. In these circumstances the most convenient course is to grant leave to file an amended summons.
Having foreshadowed this outcome, I heard from the parties in relation to costs in the event that I was minded to make an order adjourning these proceedings to allow the plaintiff to squarely raise the Kable issue. The first defendant submitted that a costs order should be made in relation to today in his favour. The first defendant pointed to correspondence of 22 June 2026, 24 June 2026, 25 June 2026 and 20 July 2026, all seeking to have the plaintiff clarify her case. It was submitted that the first reference to Kable in the context of the present summons was in the submissions of 27 July 2026. That was of course only a very short time before the hearing.
The plaintiff submits that the Kable issue has been alive for some time. She, I accept, was in a position where she needed to reevaluate her arguments and grounds following the decision of the High Court in August 2025: New South Wales v Wojciechowska (2025) 283 CLR 148; [2025] HCA 27. I accept that she responded reasonably promptly by filing her notice of motion in October 2025 seeking to amend her summons. The difficulty is that, insofar as that application was made, it was refused on the basis that there was a lack of clarity in what was sought to be argued. Even if one was to put to one side Elkaim AJ’s conclusion in that regard, the reality is that the plaintiff did not raise with the first defendant her intention to rely on the Kable argument at the hearing of this summons until the submissions of 27 July 2026. Contrary to the plaintiff’s argument, that was not within sufficient time for the first defendant to respond. There is complexity to the argument. There is a substantial body of case law in the High Court in relation to the nature of judicial power under Ch III of the Constitution. Quite apart from anything, it would be quite unreasonable to expect the first defendant to respond to an argument of that nature not even knowing whether it was going to proceed or not.
Whilst the plaintiff should be allowed to make the argument, I am of the view that the result of permitting her to do so is that the hearing today has been lost and the first defendant has in effect thrown away costs. In those circumstances I am of the view that an order should be made for costs in favour of the first defendant. In coming to that view, I additionally have regard to the fact that the plaintiff was otherwise unsuccessful with respect to the prayers on the motion which were pressed.
I make the following orders:
Grant leave to the plaintiff to file an amended summons by 4pm on 20 August 2026 in accordance with my reasons on this motion.
The plaintiff’s motion is otherwise dismissed.
The hearing of the summons dated 13 July 2023 before me today is vacated.
The matter is listed for mention before the Registrar at 11am on 7 August 2026 to be joined with the plaintiff’s summons filed on 8 May 2026 in matter number 2026/00190330.
The plaintiff is to pay the first defendant’s costs of the motion.
**********
Coversheet amended - Third Defendant deleted
Wojciechowska
Commissioner of Police, NSW Police Force (No 2)
(1996) 189 CLR 51
(2025) 283 CLR 148
(2018) 265 CLR 304