Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAD 310 Hearing dates: On the papers Date of orders: 14 December 2020 Decision date: 14 December 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Senior Member Decision: (1) Under section 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing of this costs application. (2) Each party is to pay their own costs of this proceeding. Catchwords: COSTS – application for costs in administrative review jurisdiction – not an exercise of judicial power – not Federal Proceedings within the meaning of Part 3A of the Civil and Administrative Tribunal Act 2013 – whether special circumstances exist warranting an order for costs – no order for costs. Legislation Cited: Administrative Decisions Review Act 1997 Anti Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2013 Fair Trading Act 1997 Government Information (Public Access) Act 2009 Residential Tenancies Act 2010 Cases Cited: Andrew Kennedy Funeral Directors Pty Ltd v Commissioner of Fair Trading [2020] NSWCATAD 195 Burns v Corbett [2018) HCA 15 CEU v University of Technology [2017] NSWCATAD 280 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 Drake v Minister for Immigration and Ethnic Affairs (1979) 40 FLR 409 eMove Pty Ltd v Kermode Homes Pty Ltd [2014] NSWCATAP 120 Gaynor v Attorney General of New South Wales [2020] NSWCA 48 Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164 Latoudis v Casey [1990] HCA 59 Oshlack v Richmond River Council [1998] HCA 11 Raschke v Firinauskas [2018] SACAT 19 Stack v Commissioner of Patents (1999) 161 ALR 531 Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Texts Cited: None Category: Costs Parties: Paulina Wojciechowska (Applicant) Commissioner of Police (Respondent) Representation: Solicitor: Applicant (Self Represented) Crown Solicitor (Respondent) File Number(s): 2019/00142529 Publication restriction: None REASONS FOR DECISION Introduction 1. On 14 July 2020, the Tribunal dismissed an application Paulina Wojciechowska had made for administrative review of a decision of the Commissioner of Police under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). The application was dismissed under section 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) as Ms Wojciechowska had withdrawn the application. In making that order the Tribunal said: The request made on 24 June 2020 by the respondent Commissioner for orders to be made imposing conditions on the dismissal is refused. 1. It is necessary to refer in some detail to the Commissioner's request for conditions to be imposed on Ms Wojciechowska's withdrawal and the resultant dismissal. In its request, dated 24 June 2020, the Commissioner explained: The Respondent is concerned that the applicant has applied for these proceedings to be dismissed, so that the same submissions, relating to the same information, can be run afresh in separate proceedings relating to a subsequent application under the Government Information (Public Access) Act 2009; WP v Commissioner of Police (NCAT 2020/132948). … If the applicant intends to withdraw these proceedings so the same issues can be read and collated in separate proceedings, that is plainly an abuse of process. It would be productive of anonymous wasted legal costs, should the applicant simply seek to "start again" in relation to the same information in proceedings 2020/132948. It would be an abuse of the Tribunal's valuable and finite resources; and attempt to circumvent the timetabling orders made in both proceedings. Accordingly, whilst the respondent consents to the withdrawal of the proceedings, it is appropriate that the Tribunal make the following orders (including conditions imposed under s. 58 of the CAT Act). 1. The proceedings be dismissed pursuant to s. 55 (1) (a) on condition that the applicant is not able to agitate the same issues in NCAT 220/132948 or subsequent proceedings, that is, review under the Government Information (Public Access) Act 2009 of decisions of the respondent relating to: (a) The Refusal of Access to Information in COPS Events E69413079; E68739840; E68613514. (b) The Refusal of Access to Information in the notebook entry of John Sanderson, and a determination that the respondent does not hold any relevant notebook entry of Sergeant Mills. (c) The Refusal to provide a copy of the body warm footage of John Sanderson captured at the applicant's property. NOTE: the applicant is free to make submissions in other proceedings as to whether there is a "second" body worn footage video captured during police attendance at her property. The "note" relates to a concession made in proceedings 2020/132498 that the applicant could pursue that issue in those proceedings. 1. The Tribunal also made directions with respect to an application for costs under section 63 of the CAT Act forecast by the Commissioner. This included the following directions: (4) The parties submissions are to include any submissions as to whether a hearing on the application for costs is required. (5) subject to consideration of any such submissions, the Tribunal proposes to dispense with a hearing and determine any application for costs based on the written submissions and documents provided to the Tribunal, after 17 September 2020. If the Tribunal determines that hearing is required the parties will be advised and asked to provide suitable dates. 1. On 12 August 2020 – one day late – the Commissioner filed an application seeking orders that Paulina Wojciechowska pay its costs of the proceedings fixed at $11,000, or, alternately, cost to be assessed. There then ensued a period in which Paulina Wojciechowska sought two extensions of time in which to file submissions and materials in reply. Her submissions and materials were filed late, and only after the Commissioner had filed further submissions asking the Tribunal to proceed even though she had not filed any materials. 2. All parties having now filed the submissions and materials upon which they wish to rely, the costs issue has been referred to me for determination. Should the application be determined without a hearing? 1. Section 50 (2) to (4) of the CAT Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is 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. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. 1. In this case, the Commissioner has indicated his agreement to the cost issues being determined on the papers. In her submissions, Ms Wojciechowska did not directly address the issue. She did however, request that the Tribunal either (a) dismiss the application for cost for want of jurisdiction, or (b) find that that no special circumstances exist that warrant the making of a costs order. 2. I have had the opportunity to review all the materials before the Tribunal including the original Tribunal file. 3. With respect to costs, the parties have filed the following documents: 1. Costs application filed by the Commissioner on 12 August 2020. 2. Affidavit of Andrew Bell dated 12 August 2020, filed on behalf of the Commissioner. 3. Commissioner's submissions on costs dated 12 August 2020. 4. Commissioner's costs application bundle. 5. Further submissions from the Commissioner dated 13 October 2020. 6. Supplementary affidavit of Andrew Bell dated 13 October 2020. 7. Ms Wojciechowska's submissions dated 19 October 2020. 8. Appendix 1 to Ms Wojciechowska's submissions dated 19 October 2020. 9. Letter from the Commissioner's legal representative dated 2 November 2020 asking the Tribunal to proceed to the determine the costs issues, and briefly responding to Ms Wojciechowska's submissions. 1. Having reviewed all the materials I am satisfied that this is matter than can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing. Jurisdiction. 1. In her submissions Ms Wojciechowska argued that the Tribunal has no power to award costs to either party. This was so because: - awarding cost is an exercise of judicial power; - I am a resident of Tasmania – this means only federal judicial power can be exercised in matters between the State of New South Wales and me; - the NCAT is not "a court of the state" which means it cannot exercise federal judicial power. 1. The Commissioner did not respond to this submission. 2. An administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) by the Administrative and Equal Opportunity Division of NCAT, of a reviewable decision made by a New South Wales administrator under the GIPA Act, is not an exercise of judicial power. Section 63 of the ADR Act provides that: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. This does not involve an exercise an exercise of judicial power: see Drake v Minister for Immigration and Ethnic Affairs (1979) 40 FLR409, at 419 per Bowen CJ and Deane J. Rather, the Tribunal sits in the shoes of the relevant administrator and makes the administrative decision afresh. 1. Section 60 of the CAT Act confers on the Tribunal the power to make orders for costs in the special circumstances. That section says: (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. (5) In this section— costs includes— (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. It is well-established that NCAT, when exercising its power to award costs with respect to an administrative review under the ADR Act, is not exercising a judicial function. It is not exercising a judicial power of the Commonwealth. In Stack v Commissioner of Patents (1999) 161 ALR 531 at [29 -32] Drummond J explained: [29] Courts exercising judicial power have long had wide discretionary powers to award costs. That, however, does not mean that the costs power is necessarily stamped with an exclusively judicial character. There is authority that powers may be committed to a court which are not themselves exclusively judicial, but which are capable of being administrative in character, in a different context, because they are ancillary to or incidental to the exercise of strictly judicial power. See R v Davison (1954) 90 CLR 353 at 368. [30] The power to award costs cannot, in my opinion, be described as an essential element of the exercise of judicial power. It is well-established that the common law courts of general jurisdiction had no authority to order costs in the absence of a statute conferring that power on them - see, eg, Garnett v Bradley (1878) 3 App Cas 944 and Latoudis v Casey (1990) 170 CLR 534 at 557 - even though the Court of Chancery long asserted the right to award costs in proceedings before it and this is sometimes described as an inherent power of that Court. (There is a view, however, that the chancery jurisdiction in costs is also statutory in origin: see Andrews v Barnes (1888) 39 Ch D 133 at 139.) [31] Legislatures have not confined the costs power to courts but have long acted to confer it on administrative bodies charged with determining controversies between persons. Some examples in the Commonwealth area of the conferral by the Parliament of this power on a range of administrative bodies are provided by the Administrative Appeals Tribunal's power to award costs in proceedings brought to it under various Acts: see, eg, s67 the Safety, Rehabilitation and Compensation Act 1988 (Cth) and s69B the Administrative Appeal Tribunal Act 1975 (Cth); by s174 the Copyright Act 1968 (Cth), which empowers the Copyright Tribunal to order that the costs of any proceedings before it incurred by any party be paid by any other party and by s347 the Workplace Relations Act 1996 (Cth), which authorises the Australian Industrial Relations Commission to make orders for costs in certain circumstances in proceedings before it. [32] In my opinion, the true position is that statutory power to award costs in respect of proceedings before a decision-maker, judicial or administrative, takes its character from the principal power to which the power to award costs must always be ancillary: Cominos v Cominos (1972) 127 CLR 588 at 591 and cf R v Quinn at 10. 1. In the present case, the Tribunal's power to award costs under section 60 of the CAT Act is ancillary to the Tribunal's administrative review jurisdiction under s 30(1) of the that Act. Section 30(1) provides the Tribunal with jurisdiction to hear administrative reviews under the ADR Act. A review of a decision made under the GIPA Act is just one example of a reviewable decision under the ADR Act. Section 100(1) of the GIPA Act provides: A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review). 1. Section 30(2)(a) of the CAT Act provides that the Tribunal's administrative review jurisdiction extends to, "the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings." 2. When the Tribunal is exercising its administrative review jurisdiction, it not exercising judicial power or federal jurisdiction. The power to award costs in administrative review proceedings is ancillary to the administrative review proceedings. It does not involve the exercise of a judicial function. 3. This is to be contrasted with the Tribunal's exercise of its jurisdiction to determine rights between parties, such as complaints under the Anti Discrimination Act 1977 (NSW) between parties who are residents of different states, or between residents of different states under the Fair Trading Act 1997 (NSW) or the Residential Tenancies Act 2010 (NSW): see for example Burns v Corbett [2018) HCA 15 and Raschke v Firinauskas [2018] SACAT 19. Cases like these are examples of what are now Federal Proceedings within the meaning of Part 3A of the CAT Act: see Gaynor v Attorney General of New South Wales [2020] NSWCA 48. The Tribunal does not have jurisdiction to hear them: they must be heard by a Court of New South Wales capable of exercising federal jurisdiction. 4. I am satisfied that the Tribunal has jurisdiction to make a costs order in this case. Outline of the Commissioner's submissions as to why a costs order should be made. 1. The Commissioner seeks an order for costs of this proceeding arguing that special circumstances meriting such an order under section 60 of the CAT Act exist due to the following matters. 1. Paulina Wojciechowska intends to run all the issues in this proceeding afresh, in new proceedings, namely in Paulina Wojciechowska v Commissioner of Police (NCAT 2020/132948). The Commissioner argued that this proceeding, which Ms Wojciechowska has withdrawn, was a "practice run". Therefore, the Commissioner argues that the proceedings have been maintained for an improper purpose. Multiplicity of proceedings, the Commissioner submits, is an abuse of process. 2. The Commissioner incurred costs in preparing for a part heard hearing of the administrative review on 11 May 2020. This, the Commissioner argues, was "aborted because the applicant filed an un-meritorious appeal on the morning of the hearing against the order" that the hearing be by phone. The Commissioner submits that this resulted in the matter being "unnecessarily extended on no reasonable basis". 3. "The filing of the voluminous further material on the business day before the hearing in breach of the timetable". This was said to have occurred on 8 May 2020, before a hearing listed on 11 May 2020. By an order made on 25 February 2020 Paulina Wojciechowska was to file her evidence and submissions by 14 April 2020. 4. Given the information and issues in dispute, the complications in this proceeding "were out of all proportion with the nature of the merits of the case." The applicant herself has said that the proceedings were, "misconceived and lacking in substance." When making submissions in support of her withdrawal request, and opposing conditions being imposed on that withdrawal, Ms Wojciechowska wrote on 26 June 2020: The refined access application underlying 2019/00142529 is so ambiguous that if the proceedings 2019/00142529 are not dismissed under s. 55(1)(a) of CAT Act, (sic) they should be dismissed under s 55(1)(b) for lacking in substance. 1. The Commissioner noted that Paulina Wojciechowska had twice made interlocutory appeals to the Appeal Panel, "to restrain the basic case management of the proceeding". While acknowledging that the costs of those appeals are matters for the Appeal Panels to determine, the Commissioner submitted that the increased complications and costs of this proceedings occasioned by the appeals should be taken into account in deciding whether to award costs. 2. The Commissioner's submissions include a narration of the procedural history of the administrative review application in the Tribunal. This focuses on what the Commissioner says were unnecessary issues and complications caused by Ms Wojciechowska's conduct of this application. This includes an allegation that the applicant, "refused to cooperate with the timetabling of the matter on 28 November [2019] on no reasonable basis." 3. I will discuss the course of the proceedings more fully below. 4. The Commissioner made lengthy submissions urging the Tribunal to make a fixed cost order. Because I have concluded that no order for costs should be made, I will not refer to those submissions further. Ms Wojciechowska's submissions as to why special circumstances do not exist. 1. Ms Wojciechowska submits that there is no evidence supplied by the Commissioner that this proceeding did not follow a usual course of events within the Tribunal. She denies that this proceeding was a practice run, and points to the personal and financial cost she has been put to in running this proceeding as being a contraindication to it being a practice run. 2. She says that the Commissioner did not prove the alleged overlap between this proceeding and that in administrative review application 2020/00132948. 3. She alleges that the procedural complications complained of by the Commissioner were not the result of any conduct on her part but were "triggered by NCAT's mismanagement of my access application and lamentable conduct by the respondent". She pointed to the Tribunal's refusal to stay this proceeding, while her application in administrative review application 2019/00205731 was being finally determined, as the cause of several adjournments. She alleges that the substance of both those matters should have been heard as one application, as she intended, but that the Tribunal Registry treated them as two separate applications. This led to an agreement, recorded by the Tribunal on 23 July 2019, when it ordered in proceeding 2019/00205731: By consent these proceedings are to be heard before the related proceedings of 2019/00142529 [this proceeding]. 1. Next, Ms Wojciechowska alleges that the conduct by the Commissioner of this proceedings 'forced' her to withdraw the application. She alleges that the Commissioner and his legal representatives lie and engage in, "lowly conduct". She points to several documents which she says illustrates this. 2. Ms Wojciechowska addressed the costs claimed by the Commissioner in some detail. As I have decided not to make an order for costs, I will not address those submissions further. Outline of the procedural history of this proceeding. 1. On 7 May 2019 Paulina Wojciechowska filed an application seeking administrative review of a decision made in respect of an access application numbered IASU 2019 – 360 she had made to the Commissioner of Police. She also made a stay application in which she sought a freezing order preventing the Commissioner of Police disposing of certain body worn video footage. 2. On 14 May 2019, the Tribunal refused to make interim orders. It ordered the Commissioner of Police to provide the Tribunal with copies of the information in issue on a confidential basis. The matter was otherwise adjourned to 11 June 2019. No order was made with respect to costs at that time. 3. On 11 June 2019, the Tribunal made a series of directions, which included directions for the filing of evidence and material by both parties, leading to a hearing on 19 September 2019. This included a direction that the Commissioner advise Ms Wojciechowska of whether her access application numbered IASU 2019 – 1225 would be dealt with. 4. On 28 June 2019 Paulina Wojciechowska filed an application for administrative review under the GIPA Act of the Commissioner's access decision with respect to access application IASU 2019 – 1225. This was given the administrative review application number 2019/205731. 5. On 23 July 2019, a case conference occurred in proceedings 2019/205731. Among the orders made that day was an order that the proceedings in 2019/0205731 be heard before this "related" proceeding was determined. Application 2019/205731 was listed for hearing on 8 October 2019. This proceeding was adjourned to a case conference listed on 5 November 2019, and the hearing listed for 19 September 2019 was vacated. 6. On 5 November 2019, the Tribunal adjourned to a further case conference on 28 January 2020 at 3pm, "because the matter is contingent upon the reserved decisions in related proceedings heard on 8 October 2019 being decided by the Tribunal". 7. On 8 January 2020, the Tribunal published its decision in Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1. This determined the proceedings numbered 2019/205731. It affirmed a supplementary decision made by the Commissioner in that matter. Ms Wojciechowska had a right to make an internal appeal against that decision under s.80 of the CAT Act within 28 days of being notified of that decision: see: Rule 26(4)(b) of the Civil and Administrative Tribunal Rules 2013. 8. On the morning of the next scheduled case conference, i.e. 28 January 2000, Paulina Wojciechowska emailed the Crown Solicitor seeking the Commissioner's consent to having the case conference adjourned, as she intended to appeal the decision in decision in Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1. She sought an adjournment until after 14 May 2020 to allow time for an Appeal Panel decision to be reached. In her email Ms Wojciechowska summarised her proposed grounds of appeal. On the same day, the Crown Solicitor responded, refusing to consent to an adjournment, arguing that this proceeding could proceed and that the proposed grounds of appeal were without merit. 9. At the case conference on the afternoon of 28 January 2020 Ms Wojciechowska sought an adjournment of this proceeding. It was refused. The Tribunal ordered the Commissioner to file and serve submissions and evidence by 21 February 2020. It adjourned the proceedings to a further case conference on 25 February 2020. It noted that the adjournment issue, "can be revisited on 25 February 2020". In submissions, the Commissioner asserts that those orders were made because Ms Wojciechowska, "objected to any timetabling," and that those orders were made in the hope that she, having seen the Commissioner's evidence, would see that this matter could proceed without waiting for a determination of her appeal. Ms Wojciechowska does not address this issue in her costs submissions. 10. On 7 February 2020, Ms Wojciechowska, appealed against the decision in Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1, and made an application to stay this proceeding pending the outcome of her appeal. She pointed to the order made in the appealed proceedings, on 23 July 2019, that the proceedings in 2019/205731 be heard before this "related" proceeding. On 17 February 2020, the Crown Solicitor wrote to Ms Wojciechowska on a, "Without prejudice save as to costs" basis, setting out its reasons for believing her stay application would fail. 11. On 20 February 2020, the Appeal Panel refused Ms Wojciechowska's application for a stay of this proceeding. There is no indication in the material before me that the Commissioner sought costs with respect to that stay application. 12. The next scheduled event was a case conference on 25 February 2020. Ms Wojciechowska again applied for this proceeding to be adjourned until after the completion of the appeal against the decision in Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1. That application was refused. The Tribunal made orders for the filing of a sworn affidavit from the Commissioner and evidence and submissions from Ms Wojciechowska. This proceeding was listed for hearing on 11 May 2020. 13. On 31 March 2020, the Tribunal wrote to the parties in accordance with the Tribunal's Covid-19 procedures, seeking their views as to whether this proceedings could be conducted by phone or determined on the papers. 14. The Commissioner responded effectively arguing that this proceeding was simple, with only a few issues, which could be determined, preferably, on the papers, or by phone. This submission advised that Ms Wojciechowska was now legally represented but that her solicitors had not filed a notice of representation. 15. Ms Wojciechowska objected to this proceeding being determined on the papers. She advised that she had engage lawyers who wished to cross-examine the Commissioner's witnesses. She argued that a hearing by phone was not ideal and believed an in person hearing preferable. She disputed the Commissioner's statement that there were only a few issues in dispute. She also made several additional submissions which it is not necessary to summarise here. 16. On 14 April 2020 O'Brien Criminal & Civil Solicitors filed a notice of representation for Paulina Wojciechowska. 17. On 16 April 2020, the Tribunal determined that the hearing was to be conducted by telephone. Ms Wojciechowska subsequently sought written reasons for that decision. 18. On 4 May 2020 Ms Wojciechowska emailed the Tribunal advising that she was no longer legally represented and that she objected to a hearing by phone or on the papers. "I require to be able to attend any substantive hearing in this matter in person." She sought an adjournment to enable her to attend. 19. On 5 May 2020, the request for adjournment of the proceedings listed on 11 May 2020 was refused. 20. On 8 May 2020, the Tribunal published its reasons for deciding that the hearing on 11 May 2020 be by telephone. 21. At 7:01am on 11 May 2020 Ms Wojciechowska emailed the Crown Solicitor asking that the Commissioner consent to an adjournment of the proceedings until she could appear in person. Consent was refused by an email timed at 9:00am. 22. At 8:24am Paulina Wojciechowska emailed the Tribunal requesting a further adjournment because she could not attend the hearing in person. She advised, "I will be appealing your orders today." She was referring to the order that the hearing be conducted by telephone. 23. At 9:32am Ms Wojciechowska emailed to the Tribunal her notice of appeal against the decision that the hearing be by telephone. She sought orders that the substantive hearing of this proceeding be adjourned until the she could attend in person. She also filed an application seeking a stay of the order, made on 25 February 2020, that the proceedings be heard on 11 May 2020. 24. The hearing commenced on 11 May 2020 as scheduled. Ms Wojciechowska sought an adjournment. The Commissioner opposed an adjournment arguing, among other things, that Ms Wojciechowska's proposed appeal had no prospect of success. The Tribunal decided to adjourn the proceedings to allow time for the stay application to be considered, however, evidence in this proceedings was tendered and this proceedings became part heard. The Tribunal made the following orders: 1. Adjourn part heard for further hearing on 21 May 2020 at 10 AM. 2. No further documents to be filed without leave. 1. The hearing scheduled for 21 May 2020 did not proceed. On 15 May 2020, the Appeal Panel stayed that hearing, pending the outcome of Ms Wojciechowska's appeal against the decision that this proceeding be heard by telephone. 2. On 11 June 2020 Ms Wojciechowska wrote to the Tribunal advising that she was withdrawing her application. 3. On 24 June 2020, the Commissioner wrote to the Tribunal consenting to the withdrawal of the proceedings but asking that the Tribunal impose conditions on the withdrawal. As discussed in some detail above, those conditions were aimed at preventing Ms Wojciechowska from agitating the issues in this proceeding, in other proceedings before the Tribunal. The Commissioner also sought an order for costs. 4. On 26 June 2020, Paulina Wojciechowska filed her submissions in which she disputed assertions made by the Commissioner in its submissions. She characterised them as lies and misleading information. She argued that the Tribunal should not impose conditions on her withdrawal of this proceeding, and that the Tribunal had no jurisdiction to do so. She indicated she would oppose any application for costs. 5. On 14 July 2020, the outstanding issues were listed before the Tribunal. The Tribunal dismissed the administrative review application as Ms Wojciechowska had withdrawn it. The Tribunal refused to impose any conditions on that order. It set out a timetable for dealing with the costs issues. 6. It is a matter of public record that on 27 August 2020 an Appeal Panel released its decision with respect to Ms Wojciechowska's appeal in administrative review proceedings 2019/20573. She was partially successful: see Wojciechowska v Commissioner of Police [2020] NSWCATAP 173. Her appeal against the decision to hear this proceeding by telephone did not proceed, as she had withdrawn the administrative review application. Consideration. 1. Under section 60 (1) of the CAT Act the general principle with respect to costs in the Tribunal is that each party should pay their own costs. The Tribunal may only award costs where it is satisfied that there are special circumstances: see subsection (2). In determining whether there are special circumstances the Tribunal may have regard to the factors set out in subsection (3). The full text of section 60 is set out at paragraph 14 above. 2. "Special circumstances" are circumstances that are out of the ordinary. They are not necessarily extraordinary or exceptional: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60]; Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21; CEU v University of Technology [2017]. If the Tribunal is satisfied that special circumstances exist, the question that then arises is whether the discretion given to the Tribunal to make an order for costs should be exercised: Andrew Kennedy Funeral Directors Pty Ltd v Commissioner of Fair Trading [2020] NSWCATAD 195 at [15]. If one or some of the factors mentioned in sub-section (3) have been made out, it does not necessarily follow that order for costs should be made: eMove Pty Ltd v Kermode Homes Pty Ltd [2014] NSWCATAP 120 at [11]. 3. Costs orders are not a punishment to an unsuccessful party but are made to compensate the successful party for the expense occasioned by the proceedings: Latoudis v Casey {1990] HCA 59; Oshlack v Richmond River Council [1998] HCA 11. In the context of proceedings before the Tribunal, this position is modified by the general proposition in s 60(1) that each party is to be in their own costs, and that the Tribunal's power to award costs only arises where special circumstances, as discussed above, exist. 4. In this case the Commissioner has advanced a series of propositions which are said to demonstrate special circumstances. 5. First, the Commissioner argues that Ms Wojciechowska intends to run the issues in this proceeding, which she has withdrawn, in fresh proceedings. This is denied by Ms Wojciechowska. It should be noted that the Commissioners attempt to have conditions placed on Ms Wojciechowska's withdrawal of this proceeding was unsuccessful, with the Tribunal refusing to impose the conditions sought. 6. If the Commissioner is correct and Ms Wojciechowska intends to relitigate the issues in this proceeding, in the fresh proceedings, then any costs issue relating to the extra expenditure occasioned to the Commissioner will be best dealt with by the Tribunal before whom Ms Wojciechowska seeks to relitigate the issues. I am not persuaded that those additional costs are properly claimed in this proceeding, rather than the fresh proceedings. The Tribunal hearing those proceedings will be in a much better position to determine if Ms Wojciechowska has attempted to relitigate issues in a manner that constitutes special circumstances. 7. Secondly, the Commissioner submitted that it is entitled to costs occasioned by its legal representatives preparing for the hearing on 11 May 2020 which were, "aborted because the applicant filed an un-meritorious appeal on the morning of the hearing". The Commissioner submits this caused the proceedings to be "unnecessarily extended on no reasonable basis." 8. I am unable to accept these submissions. The unmeritorious appeal to which the Commissioner refers was the appeal against the Tribunal's decision to hear this proceeding by phone. Reasons for that decision were provided on Friday, 8 May 2020. That decision had been made in Chambers on 16 April 2020, after the Tribunal sought submissions as to how the matter should proceed in the light of the Covid pandemic. Ms Wojciechowska asked for reasons for that decision, as is her right. The reasons were delivered in time, but not until Friday, 8 May 2020 – the working day before the scheduled hearing on 11 May 2020. 9. Ms Wojciechowska, like any party to Tribunal proceedings who is dissatisfied with an interlocutory decision, had a right to seek leave to appeal that decision under section 80(2)(a) of the CAT Act. She did so early in the morning of 11 May 2020, the same day as the hearing was scheduled. It is difficult to envision how she could have been quicker in lodging her appeal. The unfortunate reality was that this proceeding was listed for hearing on that day. 10. The Tribunal was persuaded to adjourn this proceeding part heard, so that Ms Wojciechowska could seek leave to appeal the decision that it be heard by phone. An Appeal Panel subsequently stayed the hearing of this proceeding pending determination of her appeal. There is nothing irregular or indicative of an abuse of the Tribunal's processes in Ms Wojciechowska's actions in seeking leave to appeal the direction that this proceeding be heard by phone. 11. The Commissioner described Ms Wojciechowska's appeal as unmeritorious, citing allegations Ms Wojciechowska made in the notice of appeal to the effect that the Commissioner might interfere with the phone hearing by technical means. The reality is that the Appeal Panel never determined the merits of Ms Wojciechowska's application for leave to appeal. It is not for me to do so when considering a costs application. The merits or otherwise of the appeal are a matter for the Appeal Panel. 12. The Commissioner submits that Ms Wojciechowska filed voluminous material on 8 May 2020, the business day before the hearing scheduled on 11 May 2020. An examination of the Tribunal file reveals that an affidavit from Ms Wojciechowska with annexures, totalling approximately 80 pages, was filed on 8 May 2020, and copied to the Commissioner. This was late having been due on 14 April 2020. 13. There is nothing in the material before me which indicates that the Commissioner was prejudiced or put to additional expense by this late filing. Indeed, the Commissioner opposed Ms Wojciechowska's efforts to adjourn this proceeding on the following Monday. This does not point to the late filing disadvantaging the Commissioner or causing delay. 14. I am unable to see how Ms Wojciechowska's conduct with respect to the period around the hearing on 11 May 2020, namely making the interlocutory appeal and the late filing of documents, could possibly justify an order for costs for the whole of the proceedings as sought by the Commissioner. At best, it is an argument for the cost thrown away on that day, but the Commissioner has not made any such application. 15. Fourthly, the Commissioner relied on Ms Wojciechowska's statement, in submissions opposing the Commissioner's request to impose conditions on her withdrawal, that the "refined access application" was lacking in substance. There is no doubt that Ms Wojciechowska wrote this. The Commissioner seeks to use it as an admission to justify a costs order against Ms Wojciechowska . Several points need to be made about this. 16. First, I am unable to ascertain from the material before me precisely what the "refined access application" was. The Commissioner in submissions does not say whether he agrees with the characterisation of the refined access application as lacking in substance. Rather, the Commissioner argues that Ms Wojciechowska's conduct of the proceedings was out of "all proportion" with the nature and merits of the case. 17. My understanding of the case is that there were live issues concerning: 1. access to body worn video; 2. whether the Surveillance Devices Act 2007 impacted on the question of access to body worn video, and the form of such access; and, 3. whether Ms Wojciechowska should have access to a paragraph of information redacted from a COPS Event. I base that understanding on the Commissioner's submission as to what the issues in this proceedings were, although Ms Wojciechowska says there were more issues: see para [45] above. In those circumstances, I am not persuaded that the proceedings were lacking in substance. 1. While acknowledging that the question of costs of the appeals made by Ms Wojciechowska is a matter for the Appeal Panels concerned, the Commissioner submits that the increased complications and costs of this proceeding, occasioned by the appeals, should be taken into account in deciding whether to award costs. The first appeal was against the related decision, in proceedings numbered 2019/205731, determined by the Tribunal in Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1. Ms Wojciechowska unsuccessfully sought a stay of this proceeding in a stay application made with respect to that appeal. The stay was first sought on 7 February 2020 and refused on 17 February 2020. There is no indication in the Appeal Panel orders that the Commissioner sought an order for costs with respect to that stay application. 2. Since then Ms Wojciechowska has consistently sought to have this proceeding adjourned until such time as that appeal was determined. The Commissioner opposed any such adjournments arguing that the appeal was without merit. Ultimately, after Ms Wojciechowska had withdrawn this proceeding, the appeal was determined, and she was partially successful: see Wojciechowska v Commissioner of Police [2020] NSWCATAP 173. A reading of that decision shows that many of her submissions were upheld. 3. The second appeal was the appeal against the decision made in Chambers to conduct the hearing of this proceeding by phone. It caused the hearing listed 11 July 2020 to be adjourned part heard. The next hearing did not proceed due to a stay issued by the Appeal Panel on that appeal, and Ms Wojciechowska's subsequent withdrawal of this proceeding. 4. I do not accept the Commissioner's submission that the increased costs in this proceeding occasioned by Ms Wojciechowska appeals, is a factor to be taken into account when considering making a finding of special circumstances under section 60(3) of the CAT Act. Parties to administrative reviews under the GIPA Act have a right to appeal decisions, or to seek leave to appeal interlocutory decisions. An unfortunate consequence of a decision to appeal is that hearings are sometimes delayed pending a decision from an Appeal Panel, or because of a stay ordered by an Appeal Panel. In this case, the hearing on 11 July 2020 was adjourned to enable Ms Wojciechowska to seek a stay pending the determination of her appeal against the decision that this proceeding be heard by phone. The Appeal Panel then stayed the proceedings until it could determine the issue. This does not constitute a special circumstance within the meaning of any of the circumstances set out in s 60(3). 5. With respect to the stay of this proceeding that Ms Wojciechowska sought in proceedings numbered 2019/205731, the reality is that her unsuccessful application did not result in any delay of this proceeding. There was no event scheduled in this proceeding that was delayed by that unsuccessful stay application. I do not accept that the application for a stay increased the cost in this proceedings at all, or that it constitutes conduct during the proceedings to which any of the circumstances in section 60(3) of the CAT Act applies. 6. Specifically, I am not persuaded that because of her appeals Ms Wojciechowska has been responsible for prolonging unreasonably the time taken to complete the proceedings. While there may have been a delay, it was not unreasonable and flowed from an application of usual procedures. 7. Finally, I note that during the proceedings Ms Wojciechowska wrote to the Registrar complaining that the Commissioner and its legal representatives had made false and misleading statements in breach of section 71 of the CAT Act. The Commissioner's representatives were not copied that correspondence. The Registrar replied to Ms Wojciechowska advising, amongst other things, that all correspondence to the Tribunal should be copied to both sides. A copy of the Registrar's letter was sent to the Commissioner's representatives. They then engaged in correspondence seeking copies of Ms Wojciechowska's correspondence with the Registrar. I do not regard this as conduct constituting special circumstances under section 60(3). Conclusion. 1. I am not satisfied that the Commissioner has demonstrated the existence of any of the factors to which the Tribunal may have regard under section 60(3) of the CAT Act in determining that special circumstances exist that merit an order for costs. I am not satisfied that there are any special circumstances in this case meriting a costs order in this case. 2. Consequently, I will order that each party is to pay their own costs of this proceeding in accordance with section 60(1) of the CAT Act. Orders. 1. The Tribunal makes the following orders: 1. Under section 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing of this costs application. 2. Each party is to pay their own costs of this proceeding. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2020