Executive Summary
The Commission does not exercise judicial power – but rather an administrative power when determining a liability dispute between the State of New South Wales, and a resident of another State of Australia.
This article summarises the joint judgment in which Judge Waugh of the District Court of New South Wales held that the Commission is a body which exercises administrative power and is distinct from a Court vested with federal jurisdiction exercising a judicial power.
Introduction
The judgment outlines the Court’s consideration of the Personal Injury Commission’s jurisdiction to determine liability disputes and the relevant power it exercises when a worker reside outside the State of New South Wales and brings a claim against the State of New South Wales.
Key Points
There were 2 questions relating to
Section 26 of the Personal Injury Commission Act 2020 (“
the PIC Act”) that were before the District Court for determination:
- What are the material issues that have arisen in the plaintiff’s applications to the Commission?
- Does the Personal Injury Commission (PIC) when determining the dispute of liability, brought by way of the worker's application, exercise judicial power?
Judgment
Determining Judicial Power
Judge Waugh noted it was not a straightforward exercise to decide whether an issue involves an exercise of judicial power as opposed to one that is administrative in nature.
His Honour referred to the decision of
Searle where Kirk JA considered that the decision makers within the Commission, performing decision making duties, does not involve an exercise of judicial power. The Court also referred to the decision which was considered by the NSW Court of Appeal in
Kanajenahalli v State of New South Wales (Western New South Wales Local Health District) [2023] NSWCA 202.
Further the Court heard submissions by the Plaintiff’s that the Commission is not bound by rules of evidence and procedures are considered informal.
[1] It was observed this can be a indicative of an administrative rather than judicial body. It was also heard that members appointed by the Commission can be appointed without being legally qualified as per s.10(4)(b) of the PIC Act.
Judge Waugh continued with the consideration to the decision of
Munro that the function of the PIC when determining matters of fact and of discretion are not sole indicators of a judicial action. These considerations are common to administrative bodies.
[2]
Conclusion
The judgment reaffirms the view that the Personal Injury Commissions does not exercise judicial power but administrative, and therefore not considered a Court of Law under
Section 39 of the Judiciary Act 1903 (Cth). The PIC is not vested with federal jurisdiction, and therefore is unable to exercise such power under Chapter III (specifically s75) of the
Constitution of the Commonwealth of Australia. Each of the proceedings were remitted back to the Commission under
s26(5) of the Personal Injury Commission Act.
Article written by Partner, Najeh Marhaba, Associate, Oliver Gilmour and Paralegal, Thomas McCarthy.
[1] -Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [82] French CJ