Wojciechowska v Commissioner of Police

[2021] NSWCATAD 328

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Wojciechowska v Commissioner of Police [2021] NSWCATAD 328

Hearing dates:

7 April 2021

Date of orders:

10 November 2021

Decision date:

10 November 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Goodman SC, Senior Member

Decision:

(1)   The applicant’s application for miscellaneous matters dated 18 December 2020 is dismissed.

(2)   The applicant is to inform the respondent, the Information Commissioner and the Tribunal within three weeks of the date of these orders whether she wishes to pursue her application for review dated 22 November 2019 or to withdraw that application.

(3)   If the applicant decides to proceed with her application for review, she is to request the Registry to relist the matter for directions when she informs the Tribunal of her decision in accordance with Order 2 above.

Catchwords:

CONSTITUTIONAL LAW – jurisdiction of Tribunal – whether Tribunal is exercising federal judicial power

Legislation Cited:

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179

Wojciechowska v Commissioner of Police [2021] NSWCATAD 210

Wojciechowska v Commissioner of Police [2021] NSWCATAD 284

Wojciechowska v Commissioner of Police (No. 2) [2020] NSWCATAD 310

Wojciechowska v Commissioner of Police (No. 2) [2021] NSWCATAP 311

Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Paulina Wojciechowska (Applicant)

Commissioner of Police (Respondent)

Also heard:

Information Commissioner (see s 104(1) Government Information (Public Access) Act 2009)

Representation:

Solicitors:

Applicant (Self-represented)

Crown Solicitor (Respondent)

File Number(s):

2019/00368647

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. On 17 May 2019, the applicant made an access application under the Government Information (Public Access) Act2009 (NSW) (“GIPA Act”) for information held by the respondent.

2. On 17 June 2019, the respondent decided:

1. under s 58(1)(d) of the GIPA Act to refuse access to some of the information to which access was sought; and

2. under s 58(1)(b) of the GIPA Act, that some of the information sought by the applicant was not held by the respondent.

3. On 30 July 2019, the applicant applied to the Information Commissioner for a review of the respondent’s decision.

4. On 15 November 2019, the Information Commissioner recommended that the respondent make a new decision under s 93 of the GIPA Act in relation to the decision to refuse access to some of the information sought by the applicant..

5. On 22 November 2019, the applicant filed an application in the Tribunal seeking administrative review of the respondent’s 17 June 2019 decision (“review application”).

6. The review application was initially set down for hearing on 6 April 2020. However, due to the impact of COVID-19, that hearing did not go ahead.

7. On 24 December 2020, the applicant filed an application for miscellaneous matters dated 18 December 2020 concerning the Tribunal’s jurisdiction to determine the review application (“jurisdiction application”). In the jurisdiction application the applicant sought orders that the Tribunal:

1. decline to accept her review application as that application “seeks to invoke federal jurisdiction because it involves a matter between a State and a resident of another State”; and

2. provide the applicant with a document stating that the Tribunal declines to accept her review application because it involves a matter between a State and a resident of another State.

The jurisdiction application

8. The materials before the Tribunal on the jurisdiction application were:

1. an affidavit of the applicant affirmed on 1 February 2021 which proves that she is a Tasmanian resident;

2. the applicant’s written submissions dated 1 February 2021; and

3. the respondent’s written submissions dated 2 March 2021.

9. The applicant contended that if the Tribunal were to determine the review application it would be purporting to exercise federal judicial power when it has no jurisdiction to do so because she is a resident of Tasmania, and the respondent is an emanation of the State of New South Wales.

10. The same argument has been made by the applicant in other proceedings decided by the Tribunal: see Wojciechowska v Commissioner of Police (No. 2) [2020] NSWCATAD 310; Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179; Wojciechowska v Commissioner of Police [2021] NSWCATAD 210; Wojciechowska v Commissioner of Police [2021] NSWCATAD 284; Wojciechowska v Commissioner of Police (No 2) [2021] NSWCATAP 311 and Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298.

11. In each case, the argument that the applicant now puts was rejected. A convenient summary of these earlier decisions is set out in Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298 at [23]-[28].

12. The Tribunal has considered the applicant’s submissions, the respondent’s submissions and the above decisions, particularly the decision of the Appeal Panel in Wojciechowska v Commissioner of Police (No 2) [2021] NSWCATAP 311. Having done so, and for the reasons set out in the earlier decisions the Tribunal is satisfied that a determination of the review application would not involve an exercise of judicial power; and that the Tribunal has jurisdiction to determine the review application. In any event, the Tribunal should follow the approach taken by the Appeal Panel.

The review application

13. The applicant did not participate in the hearing of the review application. The reason she gave was that she was concerned that her participation in the hearing of the review application may have been regarded as a concession that the Tribunal had jurisdiction to hear that application.

14. In circumstances where it is not apparent that the applicant wishes the review application to proceed; where the applicant actively sought an order that the Tribunal not accept the review application; where the applicant has not been heard on the review application; and notwithstanding that the review application proceeded in the absence of the applicant, the appropriate course is to allow the applicant to indicate whether she wishes to pursue the review application.

Orders

15. For the reasons set out above, the Tribunal orders that:

1. The applicant’s application for miscellaneous matters dated 18 December 2020 is dismissed;

2. The applicant is to inform the respondent, the Information Commissioner and the Tribunal within three weeks of the date of these orders whether she wishes to pursue her application for review dated 22 November 2019 or to withdraw that application;

3. If the applicant decides to proceed with her application for review, she is to request the Registry to relist the matter for directions when she informs the Tribunal of her decision in accordance with Order 2 above.

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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

Decision last updated: 10 November 2021