The Court held that the concept of 'jurisdictional fact' has no application to the judicial review of non-statutory executive action such as the maintenance of entries on the NSW Health Service Check Register, since jurisdictional fact analysis is inherently a question of statutory interpretation. A deed of release settling an employment/discrimination dispute did not displace the defendant's authority to maintain a final SCR entry where: the Policy Directive expressly prohibited removal of records as part of settlements; the deed was silent on the SCR; and the general release language, properly construed, did not encompass administrative record-keeping on an internal database. The Court expressly left unresolved the threshold question of whether and on what basis judicial review is available in respect of executive action taken pursuant to a non-statutory policy directive, noting the complexity of the issue and the distinction between prerogative writs and equitable remedies.
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