Yim v Industrial Relations Commission of NSW

The proceedings before the Court of Appeal of New South Wales involved an application for prohibition by the Claimants against the Industrial Relations Commission of NSW and its Registrar. The dispute concerned the jurisdiction of the Industrial Relations Commission to hear proceedings under section 106 of the *Industrial Relations Act 1996* (NSW) concerning an alleged unfair contract.

The primary legal issue before the Court of Appeal was whether it had jurisdiction to hear the application for prohibition, given the privative clause contained in section 179 of the *Industrial Relations Act 1996* (NSW). Specifically, the Court had to determine if the refusal by the Full Bench of the Commission to grant leave to appeal from a decision of a single judge on a jurisdictional matter fell within the exception provided by section 179(4)(b), thereby allowing for judicial review. A further issue was whether the contract in question was one for the performance of work in an industry for the purposes of sections 105 and 106 of the Act.

The Court reasoned that section 179(4) of the Act, which qualifies the general finality of Commission decisions, extends to proceedings brought in relation to a "purported decision" on an issue of jurisdiction. It held that a refusal by the Full Bench to grant leave to appeal from a decision on jurisdiction constitutes a determination on an "issue of jurisdiction" for the purposes of section 179(4)(b). The Court also found that the contract between the proprietor and fellow investors was not a contract for the performance of work in any industry, meaning section 106(2A) of the Act did not apply.

Consequently, the Court of Appeal ordered that the Industrial Relations Commission be prohibited from hearing or determining the proceedings under section 106 of the *Industrial Relations Act 1996* (NSW), and that the Second Respondent pay the Claimants' costs.