Case note: Wojciechowska v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATAP 104

Read the decision here: Wojciechowska v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATAP 104

Summary

This is a decision on an application for costs made by the Respondent Commissioner of Police (Police) against the Appellant.  The substantive appeal was dismissed in Wojciechowska v Commissioner of Police, NSW Police Force [2023] NSWCATAP 34.

This case note:

• sets out the grounds for the costs application
• notes that costs orders of this kind are not often made in GIPA (or PPIPA) proceedings; and
• provides guidance regarding the Tribunal’s decision to make a costs order against the Applicant.

What you need to know

Parties usually bear their own costs in GIPA proceedings - s 60 (1) of the Civil and Administrative Tribunal Act 2013 (CAT Act). However, a costs order can be made if ‘special circumstances’ are established - s 60 (2), CAT Act.

In this case, the factors which go to establishing special circumstances included:

• a frail appeal, where the appeal grounds lack substance;
• continuing to press multiple insubstantial grounds of appeal; and
• failing to comply with the court timetable.

Legislative background

Civil and Administrative Tribunal Act 2013

Section 36(3)

Section 60 and particularly section 60(3)

Factual background

The Appellant has repeatedly submitted that the Tribunal lacks jurisdiction to determine administrative review proceedings in relation to her, because she is resident in Tasmania. Following the Appeal Panel rejection of this argument and dismissal of the substantive appeal in Wojciechowska v Commissioner of Police, NSW Police Force [2023] NSWCATAP 34, the Police made an application for costs,

The Appellant did not provide written submissions on the application for costs. The Tribunal dispensed with a hearing for the costs application.

Costs application

The Police submitted that there are special circumstances under s60(3) of the CAT Act, subclauses (c), (d), (e), (f) and (g), which provide:

(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.

Appeal Panel findings

The Appeal Panel found that ‘the matters raised by the respondent amount to special circumstances which warrant the making of a costs order in favour of the respondent’ and noted in particular four factors [43]:

1. The appellants appeal was weak. Many of the appeal grounds were lacking in substance.
2. The appellant contributed to making the appeal complex by raising and pressing so many grounds of appeal, even after receiving the respondent’s reply to the appeal which should have alerted her to the weaknesses in many of her grounds.
3. The appellant, although self-represented, is experienced in the Tribunal.
4. The appellant failed to comply with the duty imposed by section 36(3) of the NCAT Act and hampered the progress of the appeal proceedings by failing to provide written submissions and by her conduct at the appeal hearing before us.

The Appeal Panel agreed with the Police submissions that section 60 applied:

• section 60(3)(c) - ‘all the appeal grounds that were raised by the appellant were weak from the outset.’ [24]
• section 60(3)(d) - ‘the appeal proceedings were made complex because of the number of grounds that were raised, and pressed, by the appellant.’ [26]
• section 60(3)(e) – ‘we are of the view that the appeal overall was lacking in substance.’ [31]
• section 60(3)(f) – ‘In our view and given the appellant’s experience in this Tribunal, the appellant has failed to comply with her obligations under s 36 of the NCAT Act.’ (primarily being the duty to cooperate with the Tribunal to facilitate the just, quick and cheap resolution of the real issues in the proceedings).
• section 60(3)(g) – the Appeal Panel noted the objects of the GIPA Act, and that ‘An award of costs should not act as a deterrent for applications for administrative review.’ [42]

The Appeal Panel also noted that the Appellant:

• continued to press her appeal after receiving substantive replies from the Police, and after her argument about jurisdiction had been rejected in other appeal proceedings [35];
• sought the disqualification of the presiding member and referral to the Supreme Court [36];
• did not file written submissions on time [40]; and
• failed to progress the appeal in an orderly way, including:
  • objecting that the presiding member was ‘manipulating the public record’ and was dishonest;
  • making unsubstantiated allegations of corruption about a Tribunal; and
  • alleging that a Tribunal member was a ‘yes woman’ who did not speak and was at the hearing merely to agree with the Principal Member [37].

Appeal Panel outcome

The Appeal Panel dismissed the appeal, making orders:

• to dispense with a hearing on costs - s 50(2) of the CAT Act; and
• the Appellant is to pay costs of $7,309.76 on or before 5 May 2023.

Costs orders of this kind are rare and not often made in GIPA (or PPIPA) proceedings.