State of New South Wales v Wojciechowska & Ors

[2024] HCATrans 18

[2024] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S39 of 2024

B e t w e e n -

STATE OF NEW SOUTH WALES

Appellant

and

PAULINA WOJCIECHOWSKA

First Respondent

REGISTRAR OF NSW CIVIL AND ADMINISTRATIVE TRIBUNAL

Second Respondent

COMMISSIONER OF POLICE NSW POLICE FORCE

Third Respondent

SECRETARY OF NSW DEPARTMENT OF COMMUNITIES AND JUSTICE

Fourth Respondent

REGISTRAR OF DISTRICT COURT OF NEW SOUTH WALES

Fifth Respondent

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 22 MARCH 2024 AT 9.59 AM

Copyright in the High Court of Australia

____________________

HER HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR B.K. LIM and MS H.D. RYAN appear for the appellant.  (instructed by Crown Solicitor for NSW)

MS P. WOJCIECHOWSKA appears in person.

HER HONOUR:   There are no appearances for the second to fifth respondents.

Mr Lim and Ms Wojciechowska, the main purpose for this directions hearing this morning is for me to find out whether Ms Wojciechowska intends to represent herself at the hearing, and, depending on the answer to that question, what other steps might need to be taken to prepare the matter for hearing.

I should say that the hearing is not likely to be listed in the next few months.  In July, we have the Court break; in August and September, the Court will be closed for building works, which means, consequently, the Court will be on circuit, and it seems unlikely that this matter would be listed for hearing while the Court is on circuit.  Ms Wojciechowska, you do not need to necessarily make a decision about this very quickly, but it would be very useful to know what you are planning to do in terms of representation at the hearing of the appeal.  Are you able to say something about that?

MS WOJCIECHOWSKA:   Thank you, I have not decided yet.  I am thinking about it.  I am very sorry; I have not decided yet.  Can I have a little bit more time?  If your Honour sets a timeline, I will respond by the due date.

HER HONOUR:   All right.  Do you have a sense, if you do decide to be represented, whether you would be likely to want some assistance from the Court in trying to locate pro bono assistance?

MS WOJCIECHOWSKA:   No, I am – people have been making suggestions to me of some barristers, but yes if, in addition, I cannot find anyone who I think is suitable then I would be interested.

HER HONOUR:   All right, thank you.  Mr Lim, does your client have any position that it wants to articulate in relation to this issue?

MR LIM:   The State has undertaken, as a condition of the grant of special leave, to pay the first respondent’s costs, which would include costs of legal representation.  So, if she decides to engage lawyers, the reasonable costs would be covered by the State.

HER HONOUR:   Thank you for clarifying that.

MR LIM:   And then there would be no occasion for the second condition on the grant of special leave to arise, which is that if the first respondent remains self‑represented – once that is confirmed, it would be the case the State would be in a position promptly to engage senior counsel and junior counsel to be appointed as amicus curiae to contradict the State on its appeal.  There would be some consequential orders that would be needed in that event, formalising the appointment and providing for the filing of their written submissions.  But that can only be done when the first respondent’s position is known.

HER HONOUR:   I have a list of directions for the filing of submissions.  Has that been provided to the parties?

MR LIM:   Yes.

MS WOJCIECHOWSKA:   Yes.

HER HONOUR:   All right.  Ms Wojciechowska, if you are to comply with those submissions then you really need to make a decision about who is going to settle the submissions, whether that is you or whether that is a lawyer.  If it is to be a lawyer then the lawyer is going to need to have a certain amount of time to prepare, in order to be able to do their work by 24 April.  At the moment, one way of proceeding is simply just to note that you are bound by that direction.

In that sense, I do not necessarily need to set a timeline for you to make a decision about this, but you need to be aware that that decision is going to feed into your capacity to comply with that – I am sorry, I am looking at the appellant’s submissions.  The respondent’s submissions is 22 May.  So, you need to be able to comply with that direction.  Mr Lim, do you think anything more needs to be done in order to crystallise that issue?

MR LIM:   There is one possibility, which is that if Ms Wojciechowska remains self‑represented and the Court remains it is the view that it would be assisted by the appointment of an amicus, if the amicus were to be given sufficient time to prepare written submissions contradicting the State there is an interest in briefing them sooner rather than later.  If it is later, that may push the timetable out somewhat.  I do not suggest that cannot be done, but that is a reason why clarity on this issue might need to be provided sooner rather than later.

HER HONOUR:   Yes, all right.  Does that make sense to you, Ms Wojciechowska?

MS WOJCIECHOWSKA:   Yes, I understand.

HER HONOUR:   All right.  What if I made a direction that the respondent notify the appellant by Wednesday, 10 April whether she intends to retain legal representatives in the matter, including to settle the submissions and book of further materials to be filed on or before 22 May 2024.  All right.  The second issue that I wanted to raise concerns the section 78B notices.  Have you had any response to those from States who might wish to participate in the hearing, Mr Lim?

MR LIM:   Your Honour, the 78B notice in the appeal has not yet been served.  It is in a position to be served promptly, but the first respondent’s response to the special leave application foreshadowed possible cross‑appeals, and it seemed to us that if that was going to occur – and I think she has until next Thursday to file any notice of cross‑appeal – it may be convenient for the State to include, in a single 78B notice, the issues that arise on the appeal and any cross‑appeal and relieve Ms Wojciechowska of the burden of providing her own notice of those issues to attorneys‑general.  That would require dispensation with the rules that provide for earlier filing of the 78B notice, but that is the course we have taken so far.

HER HONOUR:   Did you want to say anything in relation to that, Ms Wojciechowska?

MS WOJCIECHOWSKA:   Yes, your Honour.  Yes, I would like to – I am thinking of cross‑appealing, it is just that I am scared ‑ ‑ ‑

HER HONOUR:   You are what?

MS WOJCIECHOWSKA:   I am scared, I am afraid to cross‑appeal.

HER HONOUR:   I see.

MS WOJCIECHOWSKA:   But, yes, I do have a desire to cross‑appeal.  In relation to this, I would like to request an extension of time on the time for me to file a notice to cross‑appeal.

HER HONOUR:   What is the nature of the cross‑appeal that you have in mind?

MS WOJCIECHOWSKA:   Under the Government Information (Public Access) Act issue, and also I have to – because the status on the appealing on the part of the part of the judgment in relation to the Privacy and Personal Information Protection Act, and so I also have to do cross‑contentions because, at least to me, it seems like if they were to be successful with the issues they are raising then I would necessarily lose on the PPIP Act issue, so I need to also do cross‑contentions – or contentions, I am not sure how it is called precisely.

HER HONOUR:   I am not sure that I quite understand what you would be trying to achieve by the cross‑appeals.  How many notices of cross‑appeal are you contemplating?

MS WOJCIECHOWSKA:   I think only one.

HER HONOUR:   And what would be the relief that you would be seeking?

MS WOJCIECHOWSKA:   Below, in the Court of Appeal, I lost under the GIPA Act part of the decision in the judgment.  So, I would be cross‑appealing that part.  Then on the PPIP Act part of the judgment, although I won, the way the State framed the questions for the High Court means, if they answered in their favour, I would lose on the PPIP Act.  My understanding is, to remedy that for me is to make cross‑contentions in relation to the PPIP Act so that – because what I am basically saying is that the Court of Appeal, in relation to the PPIP Act, made the correct decision, however the reasons may have some errors, but the overall conclusion is correct.

HER HONOUR:   You want to say that the conclusion was correct but for other reasons.

MS WOJCIECHOWSKA:   Yes.

HER HONOUR:   I understand.  How long do you think it is going to take you to complete those documents, and do you think you are going to need to retain counsel before you file those documents?

MS WOJCIECHOWSKA:   I would prefer to retain counsel before I file them, but if your Honour gave me until 1 April I would be happy with that.  That is after Easter, I think.

HER HONOUR:   Mr Lim, do you understand what the scope of these notice of cross‑appeal and notice of contention is likely to contain?

MR LIM:   I apprehend the scope of the cross‑appeal, the notice of contention is a little bit more ambiguous.

HER HONOUR:   One option would be to accept Ms Wojciechowska’s proposal to extend the time for filing to 4 April, accepting the possibility that if counsel is subsequently retained then there might be some form of amendment to one or both of these documents.

MR LIM:   I do not oppose the extension of time.  If the extension of time is granted, contrary to what I said previously, we may just serve the 78B notice in relation to the appeal promptly and not wait for the cross‑appeal documents to come in.  It may be that, then, further notice needs to be given.  I should also just be clear, the State’s undertaking to the paying of Ms Wojciechowska’s costs that have so far been given is in relation to the State’s appeal.

HER HONOUR:   Yes, and therefore not in relation to any notice of cross‑appeal or notice of contention.

MR LIM:   The notice of contention might be covered, but the cross‑appeal would not be.

HER HONOUR:   I see.  Ms Wojciechowska, do you understand that?

MS WOJCIECHOWSKA:   I do understand what Mr Lim said, although it does not mean that I accept his interpretation of the undertaking.  I also have a question.

HER HONOUR:   Let me just clarify the scope of the undertaking.  The undertaking is stated in the special leave disposition as an undertaking to the Court to pay the costs of an incidental to the appeal.  The appeal, at the moment, is framed by the notice of appeal.  As currently given, it does not extend to a notice of cross‑appeal or a notice of contention.

MR LIM:   I think I would accept that a notice of contention, a true notice of contention, would be incidental to the State’s appeal, but the cross‑appeal is a different matter.

HER HONOUR:   All right.  Just to make that clear, Ms Wojciechowska, the undertaking that has been given to the Court does not extend to any notice of cross‑appeal.

MS WOJCIECHOWSKA:   Thank you.

HER HONOUR:   If you think it should extend more broadly, then you will need to argue for that at a convenient time.  All right, Mr Lim, I think I would prefer the section 78B notices to go out sooner rather than later.

MR LIM:   Yes.

HER HONOUR:   I will not make any direction in relation to that, but it seems to me that it would be useful for Ms Wojciechowska to understand the extent to which there are going to be other parties participating in the appeal.  I will amend direction 1, the directions given for the filing of submissions, to change the date of Thursday, 21 March 2024 to Thursday, 4 April 2024.

MR LIM:   I am sorry, your Honour, direction 1 is the notice appeal which was filed yesterday.

HER HONOUR:   I see.  Thank you, I am sorry.  I will make an order that any notice of cross‑appeal or notice of contention be filed and served on or before Thursday, 4 April 2024.  Mr Lim, is there any other issue that you wish to raise?

MR LIM:   No, thank you, your Honour.

HER HONOUR:   Ms Wojciechowska?

MS WOJCIECHOWSKA:   Yes, thank you.  I would like to raise an issue of what Mr Lim described as “reasonable costs” in relation to me getting counsel.  This is the issue that I have:  how do I express it when I approach the counsel that only the reasonable costs are to be covered?  Because, I would like the counsel to accept me on the basis of just the costs paid by the State and not additional costs.

HER HONOUR:   I think that you probably articulated there what you could say to those counsel.

MS WOJCIECHOWSKA:   Okay, I see.  Thank you, your Honour.

HER HONOUR:   It may be that you can have some kind of conversation with the legal practitioners for the State to obtain some comfort about whether or not the costs that you are proposing to incur are reasonable costs.

MS WOJCIECHOWSKA:   Thank you.  Can I also note – can I write, myself, to Bar associations to seek some expressions of interest from barristers?

HER HONOUR:   I have no reason to think that you could not do that.

MS WOJCIECHOWSKA:   Okay, thank you.

HER HONOUR:   And I am sure you can speak to the Registry or the Senior Registrar of the High Court in relation to that.  She might be able to assist you.

MS WOJCIECHOWSKA:   Thank you.

HER HONOUR:   Is there anything else?

MS WOJCIECHOWSKA:   Not from me.

HER HONOUR:   All right, thank you.  Could you please adjourn the Court.

AT 10.21 AM THE MATTER WAS ADJOURNED