Recent Cases

Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 (17 August 2023) (Mitchelmore and Kirk JJA, Griffiths AJA)


CONSTITUTIONAL LAW — Federal jurisdiction — Diversity jurisdiction — Dispute between a State and a resident of another State — Jurisdiction of NSW Civil and Administrative Tribunal — Proceedings were of a kind falling within ss 75(iv) of the Constitution — Nature of the Burns v Corbett restriction

CONSTITUTIONAL LAW — Federal jurisdiction — Government Information (Public Access) Act 2009 (NSW) — Reviewable decisions — Whether Tribunal exercising judicial power — Where reviewable decisions involve governmental administration — Where administrative schemes involve legal criteria — Where Tribunal is not enforcing pre-existing, distinct legal rights — Where Tribunal bears features characteristic of administrative tribunals in Australia — Where Tribunal’s task is to undertake merits review — Where tribunal is exercising non-judicial power — Burns v Corbett restriction does not apply — Powers may be validly exercised by the Tribunal in proceedings which, otherwise, would fall within federal jurisdiction

CONSTITUTIONAL LAW — Federal jurisdiction — Privacy and Personal Information Protection Act 1998 (NSW) — Where context of the Act for government record-keeping is administrative — Damages sought under s 55(2)(a) of the Act — Damages is a remedy characteristically and historically awarded by courts — Where the Tribunal is making orders directed to the agency, rather than in lieu of the agency’s own decision — Where order made under s 55(2)(a) is to be certified under s 78(1) of the Civil and Administrative Tribunal Act 2013 (NSW) — Where the decision of an administrative body is given the effect of a decision of a court — Where exercise of judicial power if and when such an order is sought — No occasion to read down or sever s 78 — Burns v Corbett restriction applies