Police costs bid refused: losing an NCAT appeal is not enough to shift legal costs

What happened

The appellant had asked the Tribunal for an extension of time so he could apply for review of a decision made by the Commissioner of Police, NSW Police Force under the Government Information (Public Access) Act 2009. That application was dismissed. He appealed, and the Appeal Panel dismissed both his application for leave to appeal and the appeal itself. He represented himself throughout and is not legally trained. His name is suppressed under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

The Commissioner, represented by solicitors Sparke Helmore, then applied for the legal costs of the appeal, fixed at $7,500. Both sides agreed the costs question could be decided on the written material without a hearing.

The Commissioner relied on four things: that the appeal was weak and had no real prospects of success; that the appellant had lodged a large volume of material and long submissions; that the appellant "may have" used generative text software to help draft his submissions without saying so, contrary to the Tribunal's procedural direction on that subject; and that the appellant had behaved in a similar way in other court proceedings, where he had not accepted results that went against him.

The Appeal Panel recorded some details of how the costs issue was run. Directions given in May 2026 told the parties to lodge any costs submissions at the same time as their appeal submissions. The Commissioner did file costs submissions then, but relied only on the strength of the claims, on the proceedings being misconceived, and on the appellant's conduct in other matters, not on any use of generative software. After the appeal was dismissed, the Appeal Panel allowed costs submissions of no more than four pages in 12 point font or larger. The Commissioner filed eight and a half pages in what appeared to be a smaller font, apologised, and asked for leave after the event. The Commissioner's substantive appeal submissions had run to more than 17 pages, also in a font smaller than 12 point. The appellant's own material, the Panel found, was indexed and well organised, and his submissions, though long, were well structured and he spoke to them effectively at the hearing.

What each side wanted

The Commissioner argued that special circumstances existed and asked for a fixed costs order of $7,500, pointing to the relative weakness of the appeal under section 60(3)(c) of the Civil and Administrative Tribunal Act, to the proceedings being frivolous, vexatious, misconceived or lacking in substance under section 60(3)(e), to the volume and complexity of the appellant's material and his suspected undisclosed use of generative text software, and to his pattern of conduct in other litigation as a relevant matter under section 60(3)(g). The appellant resisted the costs order, saying his conduct in other proceedings could not create special circumstances in these proceedings, and explaining that his own costs submissions ran over the page limit only because he needed to answer the Commissioner's much longer ones.

What the tribunal decided

The Appeal Panel made two orders: "A hearing of the respondent's costs application is dispensed with" and "The respondent's application for costs is dismissed."

No money was ordered to be paid by either side. The $7,500 the Commissioner sought was refused, so each party was left paying its own costs of the appeal.

Why the tribunal decided it that way

The starting point is section 60(1) of the Civil and Administrative Tribunal Act 2013: each party to proceedings in the Tribunal pays its own costs. Under section 60(2), NCAT can award costs only if satisfied there are "special circumstances" that warrant it. Section 60(3) lists things the Tribunal may look at, including whether a party unnecessarily disadvantaged the other side, whether a party unreasonably prolonged the case, the relative strengths of the claims, the nature and complexity of the proceedings, and whether the case was frivolous, vexatious, misconceived or lacking in substance. The Panel applied the settled meaning of "special circumstances": matters that are out of the ordinary, though they do not have to be extraordinary or exceptional.

On the suspected use of generative text software, the Panel said an allegation that a party "may have" used such software is a weak basis for awarding costs. If the Commissioner wanted to raise non-compliance with the Tribunal's procedural direction on generative software, the proper course was to raise it at the hearing and in the costs submissions filed before the hearing, as the directions required.

On the volume of material, the Panel found the appellant's evidence folders were indexed and well organised and his submissions well structured and focused on the appeal grounds. Because the Appeal Panel had not limited the length of the substantive submissions, it would be unfair to award costs because one side's submissions were long. The Panel noted the irony that the Commissioner complained about length while exceeding the page limit set for costs submissions and filing substantive submissions of more than 17 pages in an undersized font.

On the appellant's conduct in other cases, the Panel held that the costs power is enlivened by a party's conduct in the proceedings in which the costs order is sought, not in different proceedings. That reflects the principle that costs are compensatory; they are not there to compensate a party for how the other side behaved somewhere else. The Panel also was not persuaded the earlier appellate comments amounted to criticism in the way the Commissioner described. On the strength of the appeal, the Panel accepted the grounds were not strong, but said the appeal raised issues needing some consideration, including whether section 41 of the Civil and Administrative Tribunal Act was available in proceedings under the Government Information (Public Access) Act. It would not go so far as to say the claims had no tenable basis in fact or law, and said that even if it were wrong about that it would decline costs as a matter of discretion, because losing is not by itself a reason to award costs in a forum where costs generally do not follow the event.

What this means if you are in a similar position

If you are in a similar position in a NCAT matter, this decision shows how the default costs rule actually works. The ordinary position is that each side pays its own costs, win or lose, and the party asking for costs has to show something out of the ordinary. Being unsuccessful, even on grounds the Tribunal describes as not strong, is not on its own enough. That default is one reason people without lawyers can use the Tribunal, and this decision shows it is not easily displaced just because the other side has engaged solicitors and run up a bill.

The decision also shows what the Tribunal looks at when costs are argued. The focus is on how each party ran the case in front of the Tribunal, not on what they did in other courts or other disputes. It shows length alone is not misconduct where no page limit was set, and that organised, indexed material counts in a party's favour even when there is a lot of it. It also shows that a suggestion a party "may have" used software to help draft submissions, raised late and without being put at the hearing, carried little weight, while the Tribunal did notice that the party asking for costs had itself exceeded the page and font limits it had been given.

In a dispute with a government agency about access to its records, the step most people take first is a written request or notice to the agency itself, and then a review or tribunal application if that does not resolve it. Time limits apply at each stage, and this case is an example of how much turns on them.

How to apply: our step-by-step guide to a NCAT application. More decisions: NCAT cases and other civil disputes.

Source: HKC v Commissioner of Police, NSW Police Force (No 2) [2026] NSWCATAP 344 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.