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

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

The Business Agreement was not a contract whereby a person performs work in an industry, thus the Industrial Relations Commission had no jurisdiction under s106(1) to determine the unfair contract claim; the exception in s179(4) allowed the Court to exercise supervisory jurisdiction and prohibit further proceedings in the Commission.

Parties
First Claimant: Sin Yong Yim; Second Claimant: Tae Sik Kim; First Respondent: Industrial Relations Commission of NSW; Second Respondent: Hyun Sung (Marco) Choi
Jurisdiction
Australia
Judgment Date
04 April 2007
Procedural Posture
Appeal / Judgment on Supervisory Jurisdiction Court of Appeal
Outcome
First Respondent prohibited from hearing or determining the proceedings; Second Respondent ordered to pay Claimants' costs
Legal Topics
Privative Clause, Supervisory Jurisdiction, Jurisdiction of Industrial Relations Commission, Unfair Contracts, Orders in the Nature of Prohibition
Industrial Law Administrative Law Privative Clause Supervisory Jurisdiction Jurisdiction of Industrial Relations Commission Unfair Contracts Orders in the Nature of Prohibition

Case Brief

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Parties

Sin Yong Yim

First Claimant

Tae Sik Kim

Second Claimant

Industrial Relations Commission of NSW

First Respondent

Hyun Sung (Marco) Choi

Second Respondent

Procedural Posture

Appeal / Judgment on Supervisory Jurisdiction Court of Appeal

Legal Issues

  1. 1 Whether the Business Agreement was a contract 'whereby a person performs work in any industry' within s106(1) of the Industrial Relations Act 1996
  2. 2 Whether the Industrial Relations Commission had jurisdiction to determine the unfair contract claim
  3. 3 Whether relief sought in the Summons was of a kind permitted under s106 proceedings

Ratio Decidendi

The Business Agreement was not a contract whereby a person performs work in an industry, thus the Industrial Relations Commission had no jurisdiction under s106(1) to determine the unfair contract claim; the exception in s179(4) allowed the Court to exercise supervisory jurisdiction and prohibit further proceedings in the Commission.

Court Disposition

First Respondent prohibited from hearing or determining the proceedings; Second Respondent ordered to pay Claimants' costs

Orders

  • 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.
  • The Second Respondent pay the Claimants' costs in this Court.