Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal

The Supreme Court of New South Wales considered appeals by Ms Wojciechowska against the Secretary of the Department of Communities and Justice and the Registrar of the Civil and Administrative Tribunal (NCAT). The core dispute concerned whether NCAT possessed federal jurisdiction, specifically in relation to claims brought by Ms Wojciechowska that involved a dispute between a resident of New South Wales and a resident of another State, thereby potentially falling within section 75(iv) of the Commonwealth Constitution.

The Court was required to determine whether NCAT, when exercising its review functions under the *Government Information (Public Access) Act 2009* (NSW) and the *Privacy and Personal Information Protection Act 1998* (NSW), was exercising federal jurisdiction. A key question was whether the *Burns v Corbett* restriction, which limits the conferral of federal judicial power on state tribunals, applied to NCAT’s functions in these contexts. The Court also had to consider whether the conferral of administrative power on NCAT in matters falling within section 75(iv) of the Constitution was invalid.

The Court reasoned that NCAT's merits review functions under the *Government Information (Public Access) Act* did not involve the exercise of judicial power, as NCAT was undertaking administrative review rather than enforcing pre-existing, distinct legal rights. Therefore, the *Burns v Corbett* restriction did not apply to these functions, and NCAT could validly exercise its powers even if the proceedings otherwise fell within federal jurisdiction. However, in relation to claims for damages under section 55(2)(a) of the *Privacy and Personal Information Protection Act*, the Court found that the award of damages is a remedy characteristically awarded by courts. When such an order is made and certified under section 78(1) of the *Civil and Administrative Tribunal Act 2013* (NSW), giving it the effect of a court decision, the exercise of judicial power arises. Consequently, the *Burns v Corbett* restriction applied to these specific functions.

In the first matter, the Court granted leave to amend the summons to seek relief in the nature of prohibition and to declare that NCAT had no jurisdiction to determine the claims made by Ms Wojciechowska in proceedings numbered 2019/382033 and 2022/194626. The remainder of the summons was dismissed. In the second matter, the proceedings were dismissed. Provisions for costs submissions were also made.