Sin Yong Yim & Tae Sik Kim v Industrial Relations Commission of NSW & Hyun Sung (Marco) Choi [2007] NSWCA 77

Reported Decision: 162 IR 62

New South Wales Court of Appeal

CITATION: Sin Yong Yim & Tae Sik Kim v Industrial Relations Commission of NSW & Hyun Sung (Marco) Choi [2007] NSWCA 77 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16 March 2007

JUDGMENT DATE: 4 April 2007

JUDGMENT OF: Spigelman CJ at 1; Mason P at 91; Handley AJA at 92

DECISION: 1 The First Respondent is prohibited from hearing or determining the proceedings under s106 of the Industrial Relations Act 1996, being proceedings No IRC 01/7002; 2 The Second Respondent pay the Claimants' costs in this Court.

CATCHWORDS: INDUSTRIAL LAW - New South Wales - Appeals and references - Finality of decisions - Industrial Relations Commission — appeals from — operation of privative clause – exception under s179(4) of the Industrial Relations Act – refusal by the Full Bench to give leave to appeal on a jurisdictional matter or refusal to decide a jurisdictional matter amounts to a determination on an "issue of jurisdiction". - INDUSTRIAL LAW – New South Wales – Unfair contracts – Jurisdiction – s106 (2A) of the Industrial Relations Act does not apply when s19B of Schedule 4 operates to exclude it. - INDUSTRIAL LAW - New South Wales - Unfair contracts - Jurisdiction - Whereby a person performs work in any industry under s105 and s106 of the Industrial Relations Act – contract between proprietor and fellow investors is not a contract for the performance of work in any industry. - ADMINISTRATIVE LAW – Prerogative writs and orders – Prohibition – Grounds on which granted – claimant must be directly affected by the course pursued by a tribunal and show that the tribunal is about to act to his or her detriment in excess of its authority.