King v Industrial Relations Commission of NSW [2005] NSWCA 314

New South Wales Court of Appeal

King v Industrial Relations Commission of NSW [2005] NSWCA 314 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 08/09/05

JUDGMENT DATE: 8 September 2005

JUDGMENT OF: Young CJ in Eq at 1; Giles JA at 27-31, 33; Hunt AJA at 32

DECISION: Summons dismissed with costs.

CATCHWORDS: ADMINISTRATIVE LAW- Privative clause- Whether court's jurisdiction ousted. INDUSTRIAL LAW- Franchise agreement- Unfair contracts- Applicant sought avoidance of agreement in Industrial Relations Commission- Unsuccessful- Application for certiorari, mandamus and prohibition- Contract held to be induced by misrepresentation at first instance- Commission in its discretion refused relief- No basis on which an appeal or prerogative orders could be granted, even if court had jurisdiction to grant them. (ND)

Commonwealth Constitution 1900, covering clause 5 Industrial Relations Act 1996, ss 106, 179 LEGISLATION CITED: Judiciary Act 1903 (Cth) s 78B Trade Practices Act 1974 (Cth)

Finch v Copperart Pty Ltd (1995) 62 IR 162 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 CASES CITED: Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212 Westfield Holdings v Adams (2001) 114 IR 241

Gregory John King (Claimant) Industrial Relations Commission of New South Wales (1st Opponent) Cake It Away Pty Ltd (2nd Opponent) Cake It Away (Franchising) Pty Ltd (3rd Opponent) Paul Tartak (4th Opponent) PARTIES: Michael Tartak (5th Opponent) Tony Tartak (6th Opponent) Mary Tartak (7th Opponent) Pauline Tartak (8th Opponent) St George Bank Ltd (9th Opponent) Advance Leasing Ltd (10th Opponent)