Sparke v Hay [2014] NSWCA 318

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sparke v Hay [2014] NSWCA 318 Hearing dates: 2 September 2014 Decision date: 11 September 2014 Before: Macfarlan JA at [1]; Leeming JA at [2]; Tobias AJA at [45] Decision: Dismiss proceedings IRC 754 of 2013 and IRC 957 of 2013, with no order as to costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - whether undetermined proceedings in Industrial Relations Commission deemed to be proceedings in Supreme Court - meaning of "heard or partly heard" - whether hearing on jurisdictional question by improperly constituted Commission amounted to proceeding being "partly heard" - no basis shown for grant of leave to appeal - proceedings dismissed Legislation Cited: Apprenticeship and Traineeship Act 2001 (NSW), ss 55, 80 Industrial Relations Act 1996 (NSW), ss 155, 156, 188, 403B, Schedule 4, cl 58 Industrial Relations Amendment (Industrial Court) Act 2013 (NSW) Supreme Court Act 1970 (NSW), s 48 Cases Cited: Eberstaller v Poulos [2014] NSWCA 211 Khatri v Price [1999] FCA 1289; 95 FCR 287 Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1999] FCA 1572; 94 FCR 384 Sparke v Hay [2013] NSWIRComm 70 Sparke v State Training Services [2014] NSWIRComm 3 Zhang v Zemin [2010] NSWCA 255; 79 NSWLR 513 Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 30 October 2013 Category: Principal judgment Parties: David Sparke (First Applicant) Beeox Corporation Pty Ltd (Second Applicant) G Peter Hay (Respondent) Representation: Counsel: In person (First applicant and for Second Applicant) Y Shariff (Respondent) Solicitors: Department of Education and Communities (Respondent) File Number(s): 2014/83846; 2014/83692 Decision under appeal Citation: [2013] NSWIRComm 66; [2013] NSWIRComm 70 Before: Staff J; Boland J File Number(s): IRC 957 of 2013; IRC 754 of 2013