Fightvision v Tszyu

[2000] NSWSC 899

CITATION:	Fightvision -v- Tszyu [2000] NSWSC 899
CURRENT JURISDICTION:	Equity Division Commercial List
FILE NUMBER(S):	SC 50073/00
HEARING DATE(S):	28.8.00, 29.8.00
JUDGMENT DATE:	1 September 2000
PARTIES :	Fightvision Pty Ltd & William George Mordey -v- Konstantin Tszyu
JUDGMENT OF:	Hunter J

COUNSEL :	Plaintiffs: F S McAlary QC & A S Bell Defedant: M R Aldridge SC & J J Fernon
SOLICITORS:	Plaintiffs: Back Schwartz Vaughan Defendant: Benjamin & Khoury
CATCHWORDS:	Practice & procedure - anti-suit injunction - abuse of process in maintaining proceedings in Industrial Relations Commission - dominant purpose of Commission proceedings.
LEGISLATION CITED:	Industrial Relations Act 1996 (NSW)
CASES CITED:	Fightvision Pty Ltd -v- Onisforou [1999] 47 NSWLR 473 Fightvision Pty Ltd -v- Tszyu (Unreported, Supreme Court of New South Wales, Bainton J of 27 March 1998) CSR Limited -v- Cigna Insurance Australia Ltd [1997] 189 CLR 345 A & M Thompson Pty Limited -v- Total Australia Limited [1980] 2 NSWLR 1 Walton -v- Gardiner [1992-1993] 177 CLR 378 Tszyu -v- Mordey (Unreported, Industrial Relations Commission of NSW, Marks J of 15 June 2000) Williams -v- Spautz [1991-1992] 174 CLR 509
DECISION:	Defendant enjoined from taking steps in Industrial Relations Commission proceedings other than to discontinue.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

HUNTER J

FRIDAY 1 SEPTEMBER 2000

50063/00 FIGHTVISION PTY LIMITED & WILLIAM GEORGE MORDEY -v- KONSTANTIN TSZYU

REASONS FOR JUDGMENT

1    In these proceedings the plaintiffs, Fightvision Pty Limited (Fightvision) and William George Mordey (Mordey) move for an anti-suit injunction against Konstantin Tszyu (Tszyu) restraining him from further prosecuting proceedings (the Commission proceedings) instituted by him in the Industrial Relations Commission of New South Wales (the Commission). The prosecution of those proceedings is asserted to constitute an abuse of process having regard to the conduct and outcome of litigation instituted in this Court (the Commercial Division proceedings) by Fightvision and Mordey (the promoters), inter alia, seeking an account of profits arising out of a boxing promotion agreement with Tszyu.

2    The plaintiffs in the Commercial Division proceedings relied on a contract between Classic Promotions Pty Limited of 17 January 1992, novated in favour of Fightvision (the fight promotion agreement), which was for a period of three years, with an option of renewal for a further two years and which the plaintiffs asserted had been exercised. During that contract period Tszyu had progressed from a career as a prominent amateur boxer to a boxer of world champion status. Tszyu denied the existence of any such agreement and as an alternative defence contended as follows:

"27 …the Court ought not to enforce any such agreement by reason of the unconscionable conduct of the Second Plaintiff and of Classic Promotions Pty Limited which conduct was adopted by Fightvision, or alternatively by reason of the unclean hands of each of the Plaintiffs, being as follows:

(a) During the course of discussions in January 1992 in relation to the CP Agreement, which was signed by the First Defendant on 17 January 1992, Classic Promotions Pty Limited and the Second Plaintiff dealt with the First Defendant with knowledge that the First Defendant:

(i) was 22 years of age;

(ii) had only recently arrived in Australia from the Soviet Union.
(iii) had little or no command of the English language;

(iv) had no business experience;

(v) had not previously entered into any form of contractual obligation in Australia; and


(vi) had received no independent legal advice in relation to the CP Agreement.

(b) Representations were made by Classic Promotions Pty Limited and the Second Plaintiff that Clause 9 of the CP Agreement would not be enforced against the wishes of the First Defendant."

3    That defence was bolstered by a cross-claim which relied upon the particulars furnished in support of paragraph 27 of the defendant’s contentions as particulars of the following allegation in the cross-claim:

"C. SUMMARY OF CROSS-CLAIMANT'S CONTENTIONS

1. If it is found by the Court that the First Defendant was bound as and from January 1993 by the Fightvision Agreement as alleged or an agreement with Mordey as alleged (both of which are denied) by estoppel or otherwise, the option to extend the said agreement was procured by reason of the unconscionable conduct of the Second Plaintiff and of Classic Promotions Pty Limited which conduct was adopted by Fightvision…”

4 Sky Channel Pty Limited (Sky Channel) was a defendant in the proceedings. The promoters were the cross-defendants. As a matter of chronology the Commercial Division proceedings were instituted by summons on 28 June 1995 as amended on 10 July 1996. Tszyu's cross-claim was filed on 9 September 1996. The Commercial Division proceedings came on for hearing before Bainton J from 24-27 March, 1-4 April, 8-11 April and 14 April 1997. On 2 April 1997 Tszyu filed a summons in the Commission seeking relief under s 106 of the Industrial Relations Act (the Act). The relief sought in the Commission proceedings was as follows:

"B. CLAIMS

1. An order that in the event that there is a finding that there was an agreement between the applicant and the second Respondent dated 17 January 1992 (the Agreement) it be declared void ab initio.

2. An order that a purported novation of the agreement on or about 30 January 1993 by the first respondent on behalf of the second respondent in favour of the third respondent be declared void.

3. An order that a purported exercise of option on or about12 January 1995 by the third respondent (of a claimed entitlement under the agreement and pursuant to the alleged novation of 30 January 1993) be declared void.

4. An order that the purported "Further Agreement" between the Applicant and the First Respondent which is alleged by the First Respondent to have arisen in consequence of the purported exercise of the option referred to in paragraph 3 above be declared void.

5. An order that the purported "Further Agreement" between the Applicant and the Third Respondent which is alleged by the Third Respondent to have arisen in consequence of the purported exercise of the option referred to in paragraph 3 above be declared void.”

5    Reference was made in the Commission proceedings summons to the Commercial Division proceedings as follows:

"20. Proceedings are presently being heard before His Honour Mr Justice Bainton in the Commercial Division of the Supreme Court of New South Wales No. S50120 of 1995 between Fightvision Pty Limited (First Plaintiff) and William George Mordey (Second Plaintiff) and the Applicant, Konstantin Tszyu (First Defendant); Theodore Onisferou (Second Defendant); Jeffrey Fenech (Third Defendant); Vladimir Warton (Fourth Defendant); Tszyu Enterprises Pty Limited (Fifth Defendant) and Sky Channel Pty Limited (Sixth Defendant). In those proceedings the Plaintiffs allege and the Defendants deny the existence and validity of the agreement, the purported novation of the agreement and purported exercise of an option claimed to have been exercised under the agreement and pursuant to the alleged novation.

21. In the circumstances recited in paragraph 20 above, the Applicant is not in a position to provide further particulars until findings are made by the Commercial Division of the Supreme Court of New South Wales in relation to the existence and terms of any contract or arrangement found to exist.

22. The Applicant requests that these proceedings be listed before the Registrar for mention at the earliest convenience of the Industrial Relations Commission to enable the matter to proceed to final hearing expeditiously."

6    Section E of the summons provided for the statement of particulars of any amount claimed, to which the applicant noted "None applicable".

7    On 3 April 1997 Tszyu sought an order under Pt 31 in the Commercial Division proceedings to have a separate determination of the issue of liability. The application, on the face of it, was linked with the intention to prosecute the Commission proceedings once the contract question had been resolved in the Commercial Division proceedings. However attractive that contemplated procedure may have been, the history of that application leads to no surprise that it was rejected by Bainton J who, in his Honour's reasons for judgment, traced the history of that application as follows:

"At a directions hearing on 2 February 1996 the parties informed the presiding Judge that they, or some of them, were contemplating seeking to have the question of liability determined as a separate issue pursuant to Part 31, r 2 of the Rules of the Supreme Court. That Judge gave leave to any party to take out a Notice of Motion to be filed and served by 4pm on 9 February seeking such an order. He stated that the consent of all parties (if forthcoming) to an order directing the determination of such a separate question would not necessarily lead to the making of such an order. No such application was made by any party either shortly after 2 February 1996, or at all until the seventh day of the present hearing.

On 16 February 1996 this action was set down to be heard commencing on Monday 17 June 1996. That date was vacated on 7 June 1996 on the application of the defendants based on late discovery of documents.

By an Amended Summons filed on 10 July 1996 William George Mordey was added as second plaintiff and various estoppels were pleaded.
...

The plaintiffs' claim for damages, assuming success on liability, requires them to establish what was likely to have been earned from promoting Tszyu's boxing activities. The plaintiffs had filed and served evidence from Mr Mordey and from Mr Matthew Broadfoot, an accountant, in January 1996. Three of the six defendants obtained a statement on that mater, and criticism of the plaintiffs' assertions as to the profits they would have derived from, Mr Bert Randolph Sugar, a resident of New York.

Ten days before the hearing was due to commence the parties on whose behalf Mr Sugar was to give evidence applied to have his evidence taken by way of a video link between Sydney and New York. The plaintiffs opposed that application. For reasons which I gave on 19 March 1997 I refused that application.

During the first few days of the hearing I was informed that Mr Sugar, and another USA resident intended to be called by the plaintiff in reply to Mr Sugar's evidence, were having difficulty, in one case in obtaining a passport, and in the other, in obtaining a renewal of his expired passport. An application for an adjournment was foreshadowed by those defendants on whose behalf Mr Sugar was to be called. I made it as clear as I could that any such application made for that reason during the hearing commencing on a date fixed six and a half months earlier was unlikely to succeed.

On 3 April, day seven of the hearing, all the defendants applied by Notice of Motion for an order pursuant to Part 31, r 2 of the Rules of the Supreme Court that "the issue of liability in these proceedings be determined as a preliminary matter". Two reasons were advanced as justifying such an order. The first was the difficulty of getting Mr Sugar to Australia. That difficulty was ascribable only to the failure of those on whose behalf he was engaged in leaving until such a late stage seeking to have his evidence taken by video link and failure to ensure that he was able to get to Australia in time to give evidence of use if that facility should be refused. I saw no reason to delay the determination of the plaintiffs claim for relief for that reason.

The second ground relied upon was that on the previous day (2 April 1997) Tszyu had applied to the Industrial Relations Commission of New South Wales for relief under s106 of the Industrial Relations Act 1996.
...

The defendants submitted, first, that costs would be saved, or be likely to be saved, if the issue of whether or not there had ever been, or after a determination by the Industrial Relations Commission, there would continue to be, or would be deemed never to have been such a contract as the plaintiff contended for in this action. That submission might have had some force had the application been made shortly after the proceedings commenced. It wasn't. It wasn't even foreshadowed to the judge who, as I have recorded, warned the parties that consent of all parties to the determination of liability as a separate issue would not necessarily be enough to secure the grant of such an order. By day seven of the hearing all parties had readied themselves for a hearing on all issues. Witness statements had been filed and served; the plaintiffs' case on all issues had been closed; the cross examination of the third defendant Tszyu was completed and that of the fourth defendant, Warton, nearly so. The major part of the evidence of each was directed to the damages issue. The proceedings had been commenced as long ago as 22 June 1995.

The plaintiffs in my view were and are entitled to have their case determined in this Court without further delay, an entitlement which hiving off a separate issue and awaiting its determination by another tribunal would inhibit; first by having to wait for some period then not ascertainable for a hearing in that other tribunal, and then another period not presently ascertainable for a decision by that tribunal and then a further period if the application to that other tribunal were unsuccessful before a resumed hearing in this Court could commence. These considerations alone were in my view sufficient to mandate refusal of the application.

There is, however, an additional compelling reason for that refusal. The plaintiffs' claim is based upon a contract which they assert was made between Bill Mordey's Classic Promotions Pty Ltd and Tszyu and subsequently either novated to Fightvision or by implication made between Fightvision and Tszyu. Tszyu denies any such novation or new contract. If he succeeds in having that denial accepted the plaintiffs fail. If he fails on that issue that failure will depend in part upon his evidence being disbelieved. He would then be in a position of having to contend before the Industrial Relations Commission that it should relieve him of a contract which he has unsuccessfully asserted on his oath in the Supreme Court he did not make. I would be dismayed if that Commission would entertain such a case.

That is not the end of Tszyu's difficulties. If he loses in this Court on the liability issue there will be a judgment against him for a sum of money - on any view of the evidence on that issue it will be a substantial sum. Unless and until that be set aside it is enforceable, no matter what the Industrial Relations Commission may determine in respect of the contract. Having raised that in argument the response I got was that Tszyu could lodge an appeal from my judgment (I repeat this whole argument is relevant only if Tszyu ultimately loses in this Court) and if he succeeded in the Industrial Relations Commission that could be proved at what is technically a rehearing in the Court of Appeal and thus succeed in that Court in having the judgment (and presumably the costs order also) set aside though on this assumption the decision of the Court at first instance was correct on the evidence before it. That no authority was cited to support that proposition did not surprise me.

There is yet more standing in the way of Tszyu's application. It assumes the existence of the contract for which the plaintiffs contend. If I find it existed and enter a judgment based on that finding there is an issue estoppel as to the validity and enforceability of that contract (unless such a judgment is set aside, and even then until it is set aside). No reason has been advanced to demonstrate that such an issue estoppel could be ignored by the Industrial Relations Commission, even if it were otherwise disposed to entertain an application available to Tszyu only if his evidence on oath in this Court was not accepted by this Court.

I dismiss the application with costs."

8    It appears from the transcript of evidence taken on the application for a separate determination of the issue of liability that steps had been taken prior to the hearing of the Commercial Division proceedings for such an order as appears from the following:

"HIS HONOUR: Q. Mr O'Brien let me tell you what the Court file records: It records that on 2 February 1996, before Mr Justice Rolfe, Mr Sullivan QC and Mr Casar appeared for the plaintiff. Mr Hutley appeared for the 1st, 4th and 5th defendants, which must have been on your firm's instructions. And Mr Campbell for the 2nd, 3rd and 6th defendants. The transcript of what his Honour said is:


"I stand the matter over until Friday 16 February 1996. I grant leave to any party to issue a notice of motion seeking a determination pursuant to Pt 31 r 2 on the issue of liability. That is a separate hearing question. I make it clear that the fact that the parties consent to such an order does not necessarily mean I will be disposed to accede to such an application.

I direct that a notice of motion and affidavits in support thereof be filed before 4pm on Friday 9 February."

No notice of motion and no affidavits have been filed?
A. I accept that your Honour. I wasn't at Court on that day, but I accept the Court record of course.

MCALARY: Q. Let me just show you. You can see that my solicitors filed an application for a separate trial, or separate determination of issue returnable for 9.30 on 16 February 1996 supported by an affidavit by Mr Tony Schwartz?
A. Yes, I accept that.

Q. Do you agree that you told Mr Schwartz that although you said in Court that you would not be opposing it, now you have subsequently decided that you would?
A. I don't remember that I had a conversation with Mr Schwartz to that effect, but I agree that my instructions were at some stage to oppose it.

Q. Let me read this to you?
A. Without my file I can't be particular about that.

Q. See if it assists you, let me read this as Mr Schwartz's notes: "Mark O'Brien, they are now opposing credit issues. I think because of credit issues, judge's comments." Does that assist you to recall?
A. It's consistent with the instructions I was given at about that time, yes.

Q. And you were aware, were you not, that Vericas had written on 15 February saying that:"Whilst we did not oppose the motion, the course of action proposed when the matter was before the Court on the 2nd we have reconsidered and we now intend to oppose"?
A. I am aware that Vericas received the same instructions, yes.

Q. So that what happened was that by 15 February, both defendants had decided that they would oppose?
A. I think that's right, yes.

Q. And the matter did not then proceed. There was no determination of that issue. No further action was brought to determine that issue?
A. Without looking at my file I have no recollection about whether the plaintiff pressed on with it or not.

Q. There appears to be nothing in the Court file. Now Mr O'Brien, six months later the plaintiff applied for leave to amend the summons did he not?
A. I accept that, if you say that was the day.

Q. Go to paragraph 7 of your own affidavit?
A. Yes.

Q. You can see there you set out the summons filed by the plaintiff, and previously set down for hearing in this Court on 17 June pleaded a case against the defendants based on novation in reliance on two conversations. Admitted summons on which the plaintiff now seeks to rely - two contracts, each of which is said to have arisen from one of our alternative means. You see that?
A. Yes.

Q. You then swear: "If the plaintiff is now permitted to amend the summons", and this is put in opposition to the application to amend is it not?
A. Yes.

Q. "If the plaintiff is now permitted to amend the summons, the defendant will seek a separate trial to determine what arrangements, if any, and the terms of that arrangement that existed between the parties. If such an arrangement is established, the first defendant will then be advised to make an application to the Industrial Court of New South Wales for relief under s 275 of the Industrial relations Act 1995"?
A. Yes.

Q. Now that was a matter that you raised in opposition to the application by the plaintiff to amend the summons?
A. Correct.

Q. That is eight months ago is it not?
A. Yes.

Q. For eight months you have done nothing?
A. In relation to that matter, correct.

Q. Eight months you have done nothing to seek a separate determination of the issues?
A. Correct.

Q. It is only when, and you allow this trial to start on the Monday before Easter, without raising any question of separate determination of the issues?
A. Correct."
(T519:15-T521:14)

9    In the light of the failure of Tszyu to either institute proceedings in the Commission at an earlier time or apply for a separate determination, aside from his opposition to such an application, it was almost inevitable that Tszyu's application of 2 April would fail and, coming at a point in the proceedings after his evidence had been completed and being immediately followed by the institution of the Commission proceedings on 3 April 1997, at the very least, raised serious questions as to the motivation of Tszyu in taking those steps at that time. Another application by Tszyu a week later for a Pt 31 order was similarly rejected.

10    In the last day of hearing in the Commercial Division proceedings, namely 14 April 1997, Tszyu moved the Commission by notice of motion for expedition of those proceedings. In support of that application there was filed in the Commission proceedings the affidavit of Dianne Margaret Banks sworn 14 April 1997, she being a solicitor in the office of the solicitors for Tszyu. In that affidavit she deposed to the following:

"3. I am informed by the lawyer having the conduct and carriage of the Commercial Division Proceedings, Ms Judy Sullivan, and verily believe that the evidence, both written and oral presented by the parties in the Commercial Division proceedings relates to the parties' respective positions regarding the existence, validity and terms of the agreement, the purported novation of the agreement and purported exercise of an option.

4. Excluding the possibility of a further affidavit being prepared of the Applicant's translator in relation to the circumstances of translation of the agreement, the necessary evidence to enable the Commission in Court Session to hear and determine these proceedings is complete."

11    That evidence, I think, is significant, insofar as it strongly suggests that there was a close correlation of evidence constituting Tszyu's respective cases in the Commercial Division proceedings and the Commission proceedings. That is reinforced in the affidavit of Bronwyn Dwyer sworn 9 June 2000, the solicitor for the plaintiffs. Paragraph 6 of that affidavit is in the following terms:

"6. On 2 April 1997 the Defendant filed a Summons in the Industrial Relations Commission of New South Wales seeking relief under Section 106 of the Industrial Relations Act. A copy of that Summons being plaint number IRC 1760 of 1997 is annexed and marked "C". The Affidavit filed on the Defendant's behalf in those proceedings was, apart from formal matters, identical to that filed and relied upon by the Defendant in the Commercial Division proceedings before Justice Bainton."

12    In this anti-suit injunction application it was contended by counsel on behalf of Tszyu that there would be additional evidence tendered in the Commission proceedings to include proof of the total pool of money available from each fight, for example from sponsorship: expert evidence of what a world champion fighter could expect from such a pool - the life span of such a boxer - the number of fights a year that such a boxer would undertake - the physical risks associated with such an occupation and evidence of the promoter's performance and services provided for moneys received, and some other matters of no particular consequence. Nevertheless, I think it is fairly obvious that the evidence to be adduced in the Commission proceedings would not differ markedly from that adduced in Tszyu's case in the Commercial Division proceedings.

13    The promoters moved in the Commission proceedings on 6 June 1997 to have those proceedings struck out or permanently stayed. On 17 June 1997 the Commission ordered that those proceedings be stayed pending judgment in the Commercial Division proceedings.

14    That judgment was delivered on 27 March 1998 in which Bainton J awarded damages against Tszyu in excess of $7,000,000 while dismissing the plaintiffs' action against the other defendants. Tszyu appealed from that judgment on 22 April 1998 and the plaintiffs cross-appealed seeking judgment against the defendants other than Tszyu.

15    Pending the outcome of that appeal, shortly after the judgment of Bainton J, Tszyu renewed his application for expedition before the Commission and the promoters renewed their application to strike out the Commission proceedings or, in the alternative, that they be stayed pending the outcome of the appeal from Bainton J's judgment. On those applications Marks J delivered his judgment on 15 June 1998. His brief reasoning and decision is to be found in the following passages from that judgment:

"RELEVANT PRINCIPLES AND MATTERS FOR CONSIDERATION

I should state at the outset that the jurisdiction of the Supreme Court of New South Wales invoked by the parties is not co-extensive with this Court under s 106 of the Industrial Relations Act 1996. As I understand the proceedings before Bainton J his Honour was concerned about whether there was in existence a contract between the relevant parties. In order to found jurisdiction under s 106 it is only necessary that there be an arrangement whereby a person performs work in an industry. I shall leave aside any argument as to whether any related condition or collateral arrangement referred to in the definition of contract in s 105 must also be one whereby a person performs work in any industry. In the Supreme Court proceedings Bainton J was concerned only about whether the contract was unconscionable. However "unfair contract" is defined in s 105 of the Industrial Relations Act 1996 as relevantly meaning a contract that is unfair, harsh or unconscionable or that is against the public interest.

Accordingly, the jurisdiction of this Court can extend to an arrangement which has been held on many occasions to include an understanding which would not be a contract at law as well as to a contract which is unfair, harsh or against the public interest.

In addition, by s 106 (1), this Court may not only make an order declaring any contract or arrangement wholly or partly void but also varying any such contract or arrangement either from the commencement or from some other time. The power of variation is one which I apprehend is not available at common law or, indeed, by way of equitable relief.

Finally, s 106 (2) allows this Court to find that a contract which was fair at the time it was entered into subsequently became an unfair contract "because of any conduct of the parties, any variation of the contract or any other reason".

Prima facie, therefore, convenience would dictate that the applicant should be entitled to have his claim in this Court heard as soon as possible.

However, there is in my opinion one compelling reason which dictates that a contrary finding should be made. As Mr Gross properly conceded, even if the applicant were entirely successful in these proceedings, it is still necessary if he is to eventually succeed in the litigation process that he is successful either wholly or partly in the proceedings before the New South Wales Court of Appeal. If the decision of Bainton J stands, this amounts to a final judgment which is enforceable. Accordingly, any decision of this Court to avoid or vary the contract which I should emphasise only relates to the period January 1995 to 17 January 1997 would have no impact upon the final judgment in the Supreme Court of New South Wales. It is necessary that the applicant achieve an outcome in the appeal proceedings which has the effect of setting aside any final judgment for any amount. Absent any such result, the proceedings in this Court will not avail the applicant and the costs incurred and time expended in the litigation would be wasted.

Accordingly, viewing the matter on a pragmatic basis, I have reached a prima facie view that the s 106 proceedings in this Court should be stayed pending the outcome of the appeal proceedings."

16    I have some difficulty with the reasoning of Marks J and in particular his conclusion that the Commission proceedings would be of no utility unless Tszyu was successful on the appeal. In the end Marks J stayed the proceedings pending the outcome of the appeal and stood over generally the applications to strike out and to expedite the hearing.

17 Tszyu was unsuccessful on the appeal (reported at [1999] 47 NSWLR 473) while the promoters were successful on the cross-appeal. One of the grounds of appeal in the Court of Appeal was the refusal of Bainton J to accede to Tszyu's application for a separate determination. That matter was dealt with by the Court of Appeal as follows:

"106 Bainton J was of the view that the plaintiffs were entitled to have their case determined in the Supreme Court without further delay. That alone, in his view, was sufficient to mandate refusal of the application. His Honour went on to refer to other reasons for that refusal, namely Mr Tszyu's denial that there was an novation or new contract, the consequence of a judgment against Mr Tszyu whatever the Commission might determine, and issue estoppel as to the validity and enforceability of that contract.

107 On 8 April 1997, his Honour refused the application. He refused it again on 9 April 1997, when it was
repeated.

108 In maintaining his application before the Commission Mr Tszyu was bound to accept that there was a contract on foot between Fightvision and himself, a stance contrary to part of his defence to the Fightvision claim before Bainton J. Another part of his defence to Fightvision's claim was that, if he was bound from January 1993 by an agreement with Fightvision, the Court ought not to enforce it by reason of the unconscionable conduct of either Fightvision or Promotions. As we have indicated, that defence was not pressed on the appeal. Section 105 of the Industrial Relations Act defined "unfair contract" to mean a contract, inter alia, that was "unfair, harsh or unconscionable". Apart from issue estoppel no argument was advanced to suggest that Mr Tszyu's application to the Commission would be prejudiced by judgment in the proceedings before Bainton J. That would be a matter for the Commission.

109 The applications under Pt 31, r 2 and for a stay to allow the matter to proceed in the Commission were made late in the day, and on their face appear to us to have had little merit. It was accepted that whether or not they be granted was a matter for the trial Judge's discretion. No error in the exercise of that discretion has been demonstrated. The suggestion that this Court should now set aside any part of Bainton J's judgment so that the application in the Commission should proceed is rejected.”

18    Of those reasons it is difficult to understand how it would not have been submitted to the Court of Appeal that Tszyu's application in the Commission proceedings would be prejudiced by judgment in the Commercial Division proceedings. The Court of Appeal however appears to have accepted that it would not and "that it would be a matter for the Commission". On the appeal, for reasons which were not exposed, Tszyu abandoned "any issue of unconscionability" and by its judgment the Court of Appeal gave judgment against Sky Channel in the amount of $7,310,445 as had been awarded against Tszyu.

19    Tszyu sought special leave to appeal to the High Court by notice dated 11 October 1999 which included the following ground:

“2. (a) The Court of Appeal erred failing to hold that Bainton J wrongly refused the application made by Tszyu and Sky Channel Pty Limited that he make findings and orders which did not involve entry of a final judgment, and which would therefore permit Tszyu to exercise his statutory right under s 106 of the Industrial Relations Act (NSW) to apply to have set aside as void ab initio, or to vary, any contract arising from the alleged novation or the purported exercise by Fightvision Pty Limited of the option."

20    For reasons that have not been disclosed, that application was discontinued by notice dated 21 December 1999. Prior to that, on 24 November 1999, a bankruptcy notice was served on Tszyu by Fightvision in respect of a judgment debt which at that time amounted to $8,471,604.42. It was at about this time that Sky Channel settled its judgment debt with Fightvision and on 2 March 2000 Sky Channel obtained summary judgment in this Court against Tszyu in the sum of $3,875,000, presumably half of the judgment debt which had been satisfied by Sky Channel. That judgment is subject to appeal which is yet to be heard.

21    On 6 April 2000 a creditor's petition dated 4 April 2000 was served by Fightvision on Tszyu in respect of the judgment debt and interest, which amounted to $8,517,269.70 as at 13 December 1999, of which it was recorded that $7,750,000 had been paid, leaving a balance outstanding of $767,269.70. Presumably the amount of payment was that effected by Sky Channel.

22    On 8 May 2000 Tszyu caused the summons in the Commission proceedings to be relisted and pursuant to an order of the Commission that day he caused to be filed and served on Fightvision an amended summons of 24 May 2000. A week prior to that, the creditor's petition in the Federal Court was first listed for hearing and, on Tszyu's application, was adjourned to 30 May 2000. On 29 May 2000 Tszyu filed a notice of intention to oppose the petition which was then adjourned to 22 June 2000. Since then it has been further adjourned. Fightvision opposed the relief sought in the Commission proceedings on the following ground:

" B. Summary of matters of fact and law in reply to the application .

1. In relation to the matters of fact which are set forth in the Applicant's (Mr Tszyu's) Amended Summons, the Respondents say that these matters of fact have been determined by the Supreme Court of New South Wales in proceedings 50120/95 and CA40232/98 in the Supreme Court of New South Wales and that, as a consequence, issues estoppel have arisen in the Respondents favour in respect of those matters.

2. The evidence relied on by Mr Tszyu in these proceedings is identical to that relied upon by him before Bainton J. To the extent that it was contradicted by Mr Mordey in those proceedings, Bainton J held that he preferred and accepted Mr Mordey's evidence.

3. Bainton J, in a judgment delivered on 28 March 1998, "unhesitatingly reject[ed] the contention that the deed of 17 January 1992, the making of that deed or the attempt to enforce compliance by Tszyu with it are any of them or any two of them, or all of them collectively, unconscionable" (page 19).

4. Bainton J's finding in relation to the unconscionability issue was not even challenged in the Court of Appeal. In any event, the contract was not unconscionable. It conferred significant benefits on Mr Tszyu which were expressly stipulated by him and guaranteed generous income to an amateur boxer, wholly untested in professional ranks, over a three year period. In the event, the remuneration received by Mr Tszyu in the period before he repudiated his contractual obligations was significantly in excess of that to which he was strictly entitled under the contract.

5. The proceedings and the relief claimed therein are vexatious and oppressive and amount to an abuse of process, both of the Supreme Court of New South Wales and of this Commission. The proceedings bring the administration of justice in this State into disrepute.

6. The abuse is compounded by the delay in the commencement of proceedings. These proceedings, as instituted, could have been commenced at any time from January 1992. Mr Tszyu took a tactical decision not to commence proceedings in this Commission at any stage between January 1992 and April 1997 and, in the Supreme Court proceedings, which were commenced in June 1995, denied the existence of the contract in respect of which he now seeks relief. Further, until receipt of the Amended Summons dated 23 May 2000, Mr Tszyu sought no monetary relief in these proceedings. The Amended Summons was filed less than a week before Mr Tszyu filed a Notice of Intention to Oppose a creditor's petition in the Federal Court of Australia relying on the Amended Summons in these proceedings as a basis for opposing that petition.

7. The relief sought in paragraphs B2-9 of the Amended Summons is of no utility in and of itself as there is no ongoing contractual relationship between the parties and, even if Mr Tszyu had not repudiated his obligations under the contract, that contract would have come to an end in January 1997.

8. The monetary relief sought in paragraph B10 is a transparent attempt to circumvent orders made and entered in the Supreme Court of New South Wales and to reverse a decision of that Court, upheld by the Court of Appeal and in respect of which no application for special leave to appeal was pursued. It underlines the abuse of process represented by these proceedings.”

23    The Commission proceedings have been stood over generally by order of Marks J of 7 July 2000.

24    The significant change effected by the amendment to the summons in the Commission proceedings of 24 May 2000 lies in the relief sought. In particular, Tszyu seeks the following orders:

"10. An order that each Respondent pursuant to Section 106(5) of the Industrial Relations Act 1996 pays to the Applicant an amount which the Commission considers just in the circumstances of the case, namely:-

(a) the judgment debt awarded in favour of the Third Respondent against the Applicant in proceedings no: 50120 of 1995 of the Supreme Court of New South Wales, in the sum of $7,310,445.00.

(b) interest payable by the Applicant on the said judgment debt.

(c) legal costs and disbursements payable by the Applicant pursuant to the order of the Supreme Court in the said judgement (sic).

(d) legal costs and disbursements incurred by the Applicant in defending the Third Respondent's claim in the Supreme Court and in pursuing his appeal against the judgment of Bainton J in the Supreme Court in favour of the Third Respondent.

(e) legal costs and disbursements which the Applicant is obliged to pay pursuant to the order of the Court of Appeal in the Applicant's appeal against the judgment of Bainton J.

(f) the amount of $3,875,000.00 claimed for contribution by Sky Channel Pty Limited in respect of the said judgement (sic)."

25    In section D of the summons the manner in which any amount claimed was calculated included the following:

"1. The judgment debt awarded in favour of the Third Respondent against the Applicant in proceedings no: 50120 of 1995 of the Supreme Court of New South Wales, in the sum of $7,310,445.00.

2. Interest payable by the Applicant on the said judgment debt.

3. Legal costs and disbursements payable by the Applicant pursuant to the order of the Supreme Court in the said judgment.

4. Legal costs and disbursements incurred by the Applicant in defending the Third Respondent's claim in the Supreme Court and in pursuing his appeal against the judgment of Bainton J in the Supreme Court in favour of the Third Respondent.

5. Legal costs and disbursements which the Applicant is obliged to pay pursuant to the order of the Court of Appeal in the Applicant's appeal against the judgment of Bainton J.

6. The amount of $3,875,000.00 claimed for contribution by Sky Channel Pty Limited in respect of the said judgement (sic).”

26    There is little doubt that the principal objective of the amended summons is to defeat satisfaction of the judgment debt awarded against Tszyu in the Commercial Division proceedings and to stave off the creditor's petition in the Federal Court. The basis upon which the plaintiffs in these proceedings seek an injunction is outlined in the written submissions on behalf of the plaintiffs as follows:

"2. The injunction is sought in Equity's in personam jurisdiction. It is not an injunction directed to or at the Industrial Relations Commission. The principles governing the grant of such relief were expostulated by the High Court in CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345 esp. At 390-394) (" CSR v Cigna "). The application is put on the following bases:


(i) relief is required to protect the integrity of this Court's processes, including judgments given in this Court and by the Court of Appeal;

(ii) the administration of justice requires that the relief be granted;

(iii) the IRC proceedings, as presently constituted (see further below) represent an unconscionable exercise of a legal right and are vexatious and oppressive;

(iv) the IRC proceedings, as presently constituted, have been brought for an improper purpose and are "seriously and unfairly prejudicial and damaging.”

27    I think the real question for determination is whether the above described purpose of the amended summons is Tszyu's dominant purpose and, if so, whether it constitutes an abuse of process.

28 The oral submissions on behalf of the plaintiffs were wider than quoted above. It was submitted that the conduct of Tszyu amounted to an election to pursue his rights at law and at equity rather than to exhaust his statutory rights under s 106 of the Act. It was also argued that the basis upon which an unfair contract may be avoided or varied under s 106 of the Act differs in no material respect from the issues raised by Tszyu in his cross-claim in the Commercial Division proceedings alleging unconscientious conduct on the part of the promoters in securing the fight promotion agreement with Tszyu.

29 As a matter of practicality I have no doubt that Tszyu made a serious tactical error in failing to excite the provisions of s 106 in a more timely way. It was open to him to move in the Commission when the fight arrangement with the promoters gave rise to dispute.

30    The Act is not limited to relief in relation to contracts, it extends to unfair arrangements, so that the avenue was open to Tszyu, notwithstanding his denial of the existence or enforceability of the fight promotion agreement, to challenge that arrangement. It is also clear that he made a tactical mistake in not taking up the opportunity afforded to the parties at the directions hearing of 2 February 1996 to move for a determination of the separate issue on liability, acknowledging that even a consensual application would not necessarily have led to the making of an order. In fact Tszyu opposed the application for separate determination brought by notice of motion on behalf of the promoters in February 1996. It was not until mid way through the hearing of the Commercial Division proceedings that Tszyu moved for a Pt 31 order. It is difficult to disagree with the reasons for judgment of Bainton J refusing that application and rejecting the renewed application of Tszyu shortly thereafter.

31    Similarly, having regard to the manner in which the appeal was conducted on behalf of Tszyu, the Court of Appeal's conclusion in rejecting Tszyu's challenge to Bainton J's refusal to order a separate determination was, in my view, inescapable.

32 While it may not be apt to describe Tszyu's position as one of election, I think his conduct of the Commercial Division proceedings both at first instance and on appeal has had the effect of effectively exhausting his rights in relation to the contract as found to have been made with the promoters. In my view his position now is untenable in the Commission proceedings, notwithstanding my rejection of the plaintiffs' submission that the ambit of the issues capable of being raised under s 106 of the Act is encompassed within the unconscionability case of Tszyu in the Commercial Division proceedings.

33    I think it is evident from the definition of "unfair contract" in s 105 of the Act that there is no coincidence of issues in Tszyu's case of unconscionability in the Commercial Division proceedings and the case which he seeks to litigate in the Commission proceedings based on the contract as being "unfair, harsh or unconscionable or against the public interest..." See A & M Thompson Pty. Limited v Total Australia Limited [1980] 2 NSWLR 1.

34 However, the difficulty that I see in Tszyu's amended summons in the Commission proceedings lies in his quantification of the amount claimed in terms of the judgment debt awarded against him in the Commercial Division proceedings and, given that the fight promotion agreement has long since expired either by effluxion of time or by breach, the relief sought in the nature of avoidance or variation of that agreement is otiose: both aspects being the consequence of Tszyu's failure to act in a timely fashion to invoke the relief available to him under s 106 of Act.

35 In my view there is no warrant for ordering the payment of moneys claimed by Tszyu in the Commission proceedings. The power of the Commission to make such an order is to be found in s 106 (5) in the following terms:

"106 (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case.”

36 I am satisfied that the payment of those moneys as claimed by Tszyu would not be authorised by s 106 (5) as "the payment of money in connection with (the) contract declared wholly or partly void or varied...". In substance they are moneys payable by way of damages for breach of contract or for contribution in relation to damages awarded for inducement of breach of contract, as in the case of Sky Channel. Given that view, the purpose of the amended summons to defeat the effect of the judgments against Tszyu in the Commercial Division proceedings and to stave off the creditor's petition against him in the Federal Court should be seen as the dominant purpose of the Commission proceedings from which I think it follows that an injunction lies at the suit of the plaintiffs in the terms sought: See Williams v Spautz [1991-1992] 174 CLR 509 at 529 and Walton v Gardiner [1992-1993] 177 CLR 378 at 392.

37    Accordingly, I order that the defendant be restrained from taking any further steps directly or indirectly in proceedings number 1760 of 1997 in the Industrial Relations Commission of New South Wales in Court Session (other than to discontinue those proceedings). I further order that the defendant pay the plaintiffs' costs of the summons.

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Last Modified: 10/11/2000