Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Hearing dates: 8 May 2020; 17 August 2020 (final written submissions) Date of orders: 21 August 2020 Decision date: 21 August 2020 Jurisdiction: Appeal Panel Before: A Britton, Principal Member Decision: (1) The appeal is allowed in part. (2) The Tribunal's decision is set aside. (3) The balance of the appeal is dismissed. (4) The Appeal Panel will deal with the internal appeal by way of a new hearing based on the evidence before the Tribunal at first instance. (5) Within 14 days of this decision, the Commissioner is to give to the Tribunal and Ms Wojciechowska submissions (maximum 2,500 words including footnotes and annexures) answering the questions set out at [44] above. (6) Within 28 days of this decision, Ms Wojciechowska is to give to the Tribunal and the Commissioner submissions (maximum 2,500 words including footnotes and annexures) including footnotes in response. (7) Within 35 days of this decision, the Commissioner is to give to the Tribunal and Ms Wojciechowska any submissions (maximum 1,500 words including footnotes and annexures) in reply. (8) The submissions should include the party's views as to whether a hearing should be dispensed with under s 50 of the Civil and Administrative Tribunal Act. Catchwords: GOVERNMENT INFORMATION — onus — application of s 105 of the Government Information (Public Access) Act 2009 (NSW) — whether applicant bears a "practical onus" to establish that requested information exists and is held by the agency ADMINISTRATIVE REVIEW — whether Tribunal has power to review a decision that is not the subject of an application for administrative review made under s 100 of the Government Information (Public Access) Act — whether parties can confer jurisdiction on the Tribunal by consent PROCEDURAL FAIRNESS — apprehended bias — bias by association — whether Member's previous association with a party's legal representative gives rise to a reasonable apprehension of bias PROCEDURAL FAIRNESS — apprehended bias — bias by conduct — whether Member's conduct in hearing gives rise to a reasonable apprehension of bias PROCEDURAL FAIRNESS — hearing rule — whether by permitting party to amend documents the Tribunal failed to give a party a reasonable opportunity to be heard Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Freedom of Information Act 1989 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Amos v Central Coast Council [2018] NSWCATAD 101 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156 Cainfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195 Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Klaric v Commissioner of Police [2020] NSWCATAP 153 McClymont v Department of Family and Community Services [2017] NSWCATAD 202 McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at 517 Neill v Legal Profession Complaints Committee [2011] WASCA 48 PT Garuda Indonesia Ltd v Australian Competition & Consumer Commission (2012) 247 CLR 240; [2012] HCA 33 Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 Webb v Port Stephens Council [2018] NSWCATAP 224 Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1 Wootten v Godfrey [2019] NSWCATAP 255 Texts Cited: None cited Category: Procedural and other rulings Parties: Paulina Wojciechowska (Appellant) Commissioner of Police, NSW Police (Respondent) Representation: Solicitors: Appellant (Self Represented) Crown Solicitor (Respondent) File Number(s): AP 20/05836 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 1 Date of Decision: 8 January 2020 Before: C Ludlow, Senior Member File Number(s): 2019/00205731