Tszyu v Fightvision Pty Ltd

[2001] NSWCA 103

CITATION:	TSZYU v FIGHTVISION PTY LTD [2001] NSWCA 103
FILE NUMBER(S):	CA 40708/00
HEARING DATE(S):	14 December 2000
JUDGMENT DATE:	18 April 2001
PARTIES :	KONSTANTIN TSZYU v FIGHTVISION PTY LTD & ANOR
JUDGMENT OF:	Mason P at 1; Priestley JA at 63; Powell JA at 65

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 50073/00
LOWER COURT JUDICIAL OFFICER :	Hunter J

COUNSEL:	Appellant: M R Aldridge SC/P Coleman Respondent: FS McAlary SC/AS Bell
SOLICITORS:	Appellant: Benjamin & Khoury Respondent: Back Schwartz Vaughan
CATCHWORDS:	Anti-suit injunction - breach of contract - whether proceedings instituted in the Industrial Commission during Supreme Court proceedings constituted an abuse of process - issue estoppel - s106 Industrial Relations Act 1996 - appeal dismissed. D
DECISION:	Appeal dismissed with costs

CA 40708/00

MASON P

PRIESTLEY JA

POWELL JA

Konstantin TSZYU v FIGHTVISION PTY LTD & Anor

Mr Tszyu is a boxer. In January 1992 he entered into a written contract with Bill Mordey’s Classic Promotions Pty Ltd. In January 1993 the contract was novated and substituted with a contract between Fightvision, Mr Tszyu and Mr Lewis, a trainer. In the novated contract Mr Tszyu had promised not to box professionally anywhere for three years, and after this, for a further two years at the option of Fightvision. In January 1995 Fightvision exercised the option, extending the term of its contract to 15 January 1997.

In early 1995 Mr Tszyu repudiated the contract. Fightvision began proceedings in the Supreme Court against Mr Tszyu for breach of contract and other companies for having procured Mr Tszyu to breach his contract. Bainton J found against Mr Tszyu, a decision which was later upheld in the Court of Appeal. In November 1999 a bankruptcy notice was served on Mr Tszyu by Fightvision regarding the judgment debt and bankruptcy proceedings were begun in the Federal Court.

On 2 April 1997, the sixth day of the hearing before Bainton J, Mr Tszyu filed a summons in the Industrial Commission (the Commission) seeking relief under the Commission’s powers to declare contracts void or varied - s106 of the Industrial Relations Act 1996 (the Act). The original summons in the Commission sought that the contract as novated and the purportedly exercised option be declared void.

On the seventh day of the hearing, Mr Tszyu applied to Bainton J for an order that the issue of liability be determined as a preliminary matter. Counsel indicated at trial that the Industrial proceedings were intended to safeguard Mr Tszyu’s interests. If Bainton J found against him that a contract had been in place, he would apply in the Commission to have the entitlement varied as the Commission saw fit under s106. Bainton J refused this application twice. Mr Tszyu also applied to Bainton J to defer determination of damages in favour of Fightvision until after the resolution of the Commission proceedings. This was also refused.

In May 2000 the summons in the Commission were amended to include a claim for monetary relief pursuant to s106(5) consequential upon declarations that the contract be declared void in whole or in part and that the contract was unfair, harsh, unconscionable or contrary to the public interest.

Hunter J granted an anti-suit injunction on 1 September 2000, ordering that Mr Tszyu be restrained from taking further steps in the industrial proceedings. Hunter J concluded that the industrial proceedings were an abuse of process as their dominant purpose was to defeat satisfaction of the judgment debt arising from the earlier contract proceedings before Bainton J and to stave off the ensuing bankruptcy proceedings in the Federal Court. This is an appeal against that injunction.

1. The amended summons in the Commission purported to go beyond the issues in the contract proceedings as it claimed rights based upon the Act. However, it does not matter whether the unconscionable conduct case before Bainton J was or could have been fought on as broad a front as that defined in s105.

2. The Commission has no power under the Act to vary a judgment of the Supreme Court.

3. The mere fact that the monetary relief claimed in the Commission was calculated by reference to the judgment awarded against the appellant by the Supreme Court, or that the industrial proceedings were calculated to defeat the purpose of the Supreme Court judgment did not make the Industrial proceedings an abuse of the Supreme Court proceedings.

4. However, there is an abuse of process in this case at the intersection of the principles of issue estoppel from the contract proceedings and the scope of s106(5) of the Act. The contract formed on the exercise of the option in 1995 was the basis on which issues of breach and damages were decided in the contract proceedings. That contract cannot subsequently be declared void or varied under s106, as this would remove the basis of the earlier judgment. Therefore the continuation of the industrial proceedings was properly held to be an abuse of process.

5. This was a proper case for ordering an anti-suit injunction.

(1997) 189 CLR 345; Woolworths Ltd v Hawke (1998) 45 NSWLR 13; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129; Walker v Industrial Court of New South Wales (1994) 53 IR 121; Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648; Photo Production Ltd v Securicor Transport Ltd [1980] AC 827; (referred).

CA 40708/00

MASON P

PRIESTLEY JA

POWELL JA

Konstantin TSZYU v FIGHTVISION PTY LTD & Anor

JUDGMENT

1    MASON P: The appellant (Mr Tszyu) appeals against an anti-suit injunction granted on 1 September 2000 (Fightvision v Tszyu [2000] NSWSC 899). Hunter J ordered 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).

2 The proceedings in the Industrial Relations Commission (the industrial proceedings) involve a contract between Mr Tszyu and Fightvision Pty Ltd (Fightvision) dated 17 January 1992. Mr Tszyu seeks various forms of relief pursuant to s106 of the Industrial Relations Act 1996.

3    Hunter J concluded that the industrial proceedings constituted an abuse of process since their dominant purpose was to defeat satisfaction of the judgment debt arising from earlier contract proceedings in the Supreme Court and to stave off ensuing bankruptcy proceedings in the Federal Court.

the earlier contract proceedings and the ensuing bankruptcy proceedings

4    The detailed background is set out in this Court’s reasons in Fightvision Pty Ltd v Onisforou & Ors; Tszyu v Fightvision Pty Ltd & Anor (1999) 47 NSWLR 473 (the earlier Court of Appeal decision). Since an application for special leave to appeal to the High Court was later discontinued, the earlier Court of Appeal decision was the culmination of what shall hereafter be referred to as the contract proceedings.

5    Mr Tszyu is a famous boxer. On 17 January 1992 he entered into a written contract with Bill Mordey’s Classic Promotions Pty Ltd (Classic Promotions), a company controlled by Mr Bill Mordey the second respondent in this appeal. In about January 1993 the contract was novated by discharge and the substitution of a new contract in the same terms between Fightvision, Mr Tszyu and Mr Lewis, a trainer. The contract as novated contained a promise by Mr Tszyu not to box professionally anywhere in the world for a period of three years and thereafter, at the option of Fightvision, for a further period of two years, unless the bout was promoted or co-promoted by Fightvision. In January 1995 Fightvision exercised the option, thereby extending the term of its contract to 16 January 1997.

6    In early 1995 Mr Tszyu effectively repudiated the contract. Fightvision commenced the contract proceedings in the Commercial Division in June 1995, adding Mr Mordey as a second plaintiff in July 1996. The defendants included Mr Tszyu and Sky Channel Pty Ltd (Sky Channel), a company alleged to have procured Mr Tszyu to have breached his contract.

7    The contract proceedings in the Commercial Division were heard by Bainton J over 14 days in early 1997 and resulted in judgment on 27 March 1998. The earlier Court of Appeal decision was delivered on 13 September 1999.

8    The issues litigated in the contract proceedings included the following:

(1) Fightvision claimed that the contract of 17 January 1992 had been novated in its favour and that the further two year option had been duly exercised. Bainton J so held, rejecting Mr Tszyu’s pleaded defences denying the existence of a valid agreement, its novation and the due exercise of the option. The trial judge’s conclusions were upheld in the earlier Court of Appeal decision (see 47 NSWLR at 491-6).

(2) Fightvision claimed damages based on the profits it would have earned if Mr Tszyu had boxed professionally in bouts promoted or co-promoted by it for the period of two years from 17 January 1995. Bainton J calculated those damages (including interest) at $7,310,445 and that determination was also upheld in the earlier Court of Appeal decision (see 47 NSWLR at 497-509).

(3) Fightvision claimed that various promoters, including Sky Channel, had wrongfully interfered with its contractual relations with Mr Tszyu. This claim failed before Bainton J, but it was upheld in this Court (see 47 NSWLR at 509-529). Damages were assessed in the same amount as that awarded against Mr Tszyu, ie $7,310,445 (see 47 NSWLR at 533-6).

(4) In both a Defence and a Cross Claim Mr Tszyu pleaded that the 1992 contract ought not to be enforced by reason of the unconscionable conduct of Classic Promotions and of Fightvision. This claim failed before Bainton J (see Blue 62-4) and it was not renewed in the earlier appeal. It will be necessary to return to the detail of this aspect of the contract proceedings.

9    Mr Tszyu’s special leave application in the High Court was discontinued in December 1999.

10    In November 1999 a bankruptcy notice was served on Mr Tszyu by Fightvision in respect of the judgment debt, which at that time had risen to almost $8.5 million. At about the same time, Fightvision obtained satisfaction of its judgment debt from Sky Channel.

11    Sky Channel also obtained summary judgment from Master McLaughlin against Mr Tszyu in March 2000 for a sum representing one half of the judgment debt it had satisfied, ie $3,875,000. That judgment was upheld on appeal by Young J (see Sky Channel Pty Ltd v Tszyu [2000] NSWSC 838).

12    Through bankruptcy proceedings in the Federal Court Fightvision has been pressing Mr Tszyu for payment of the balance of his debt to that company ($767,296). Those proceedings have been on foot since April 2000. Mr Tszyu is defending those proceedings by relying upon the industrial proceedings detailed below (Blue 1/141).

Mr Tszyu’s proceedings in the Industrial Commission and their impact on the contract proceedings

13 On 2 April 1997, the sixth day of the hearing before Bainton J, Mr Tszyu filed a summons in the Commission seeking relief under s106 of the Industrial Relations Act 1996 (the Act). This was the commencement of the industrial proceedings which are the subject of the anti-suit injunction presently under appeal.

14    Section 106 provides.

106. Power of the Commission to declare contracts void or varied

(1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract.

(2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason.

(3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time.

(4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force.

(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.

15    Section 105 contains the following definitions:

105 Definitions
In this Part:
contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument.
unfair contract means a contract:
(a) that is unfair, harsh or unconscionable, or
(b) that is against the public interest, or
(c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or
(d) that is designed to, or does, avoid the provisions of an industrial instrument.

16    In its original form the summons filed by Mr Tszyu in the industrial proceedings claimed:

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.

17    The three respondents in the industrial proceedings are Mr Mordey, Classic Promotions and Fightvision.

18    Reference was made in the industrial 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.

19    It may be observed that the original summons in the Commission did not seek the variation of any of the contractual arrangements (cf s106). It merely sought that the contract as novated and the purportedly exercised option to renew be declared void. Section E of the summons also explicitly abjured any claim to monetary relief in the Industrial Commission (Blue 1/43).

20    Mr Tszyu’s solicitor swore an affidavit on 14 April 1997. It was filed in the Industrial Relations Commission and it stated:

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.


Hunter J correctly observed that this affidavit strongly suggested that there was a close correlation of evidence constituting Mr Tszyu’s respective cases in the Commercial Division proceedings and the Commission proceedings.

21 On 3 April 1997, the seventh day of the trial in the Commercial Division, Mr Tszyu applied to Bainton J for an order pursuant to Part 31 r3 of the Supreme Court Rules that the issue of liability be determined as a preliminary matter. (A similar application had been foreshadowed in February 1996 but was not then pressed.) Counsel indicated that the application in the Industrial Commission had been brought to preserve Mr Tszyu’s entitlement in the event that Bainton J found there was a contract on foot. He said that the Commission could then deal with or vary that entitlement as it saw fit, pursuant to s106 of the Act.

22 What happened thereafter in relation to this application is conveniently summarised in the earlier Court of Appeal decision. That summary also records this Court’s reasons for rejecting Mr Tszyu’s appeal against Bainton J’s refusal to defer determination of damages in the contract proceedings pending completion of the industrial proceedings (47 NSWLR at 496-7):

102. On 3 April 1997, which was the seventh day of the hearing, Mr Tszyu and the third parties applied to Bainton J for an order pursuant to Pt 31 r 2 of the Supreme Court Rules that “the issue of liability in these proceedings be determined as a preliminary matter” and an order that, if by virtue of novation and the exercise of the option there was in existence a valid and binding contract between Mr Tszyu and Fightvision, the entry of any judgment in favour of Fightvision be stayed to await resolution by the Commission of the proceedings Mr Tszyu had there instituted.

103. In his reasons for judgment on the application Bainton J said that two grounds were advanced as justifying an order that liability be determined as a preliminary matter.

104. The first was the difficulty of getting Mr Sugar to Australia. … This ground can be ignored for the purposes of this appeal.

105. The second ground was the proceedings in the Commission. His Honour said:
“The defendants submitted, first, that costs would be saved, or 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.”

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 any 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.

23    I return to the history of the industrial proceedings since their commencement on 3 April 1997:

• On 14 April 1997 Mr Tszyu filed a notice of motion seeking expedition of those proceedings (Blue 263).

• On 6 June 1997 Mr Mordey, Classic Promotions and Fightvision filed a notice of motion seeking to have those proceedings struck out or permanently stayed (Blue 272).

• On 17 June 1997 the competing interlocutory applications in the industrial proceedings were by consent stood over generally pending delivery of the judgment of Bainton J.

• On 15 June 1998 the industrial proceedings were stayed pending the outcome of the earlier Court of Appeal proceedings. Marks J’s reasons for making such an order include (emphasis added):

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 s106 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 s106 (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, s106 (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.

24    In the judgment under appeal, Hunter J expressed some difficulty with the reasoning in the penultimate paragraph of this passage, especially the conclusion that the Commission proceedings would be of no utility unless Mr Tszyu was successful on his then pending appeal to this Court. It may be that the reasoning was linked to the issues as they then stood in the Commission. Nevertheless, I indicate at this stage that the reasoning is entirely consonant with my ultimate conclusion in the present appeal.

25    For the present, it is sufficient to note that the respondents do not contend that Mr Gross’s recorded concessions at this interlocutory stage of the industrial proceedings have preclusive effect. It is however common ground between the parties to the present appeal that the principle of issue estoppel would apply in the pending proceedings in the Commission, with the result that issues fought and determined in the final judgments in the contract proceedings cannot be relitigated afresh. Mr Tszyu accepts that this precludes relitigation in the Commission of the issues of contract, novation, due exercise of option, equitable unconscionability from contract inception and damage (Appeal transcript, p18).

26    In his reasons delivered on 15 June 1998, Marks J also said this:

Whilst it is unfortunate on one view that in the end result the applicant has been denied an opportunity to have the matter litigated by this Court exercising on one view of it a wider jurisdiction than that possessed by the Supreme Court, it was always open to the applicant to have commenced proceedings under the then s275 of the Industrial Relations Act 1991 based, not on a contract the existence of which he denied, but on an arrangement which would have been sufficient to found jurisdiction. Such proceedings could have been commenced in early 1995 when, as I understand it, the relationship between the applicant and Mr Mordey had broken down. The events as they have unfolded in the litigation process since the commencement of the proceedings in the Supreme Court have forced the applicant tactically to defend those proceedings in part by denying the existence of the contract upon which those proceedings were based. I can appreciate the reluctance of those advising the applicant to either commence or persist with proceedings in this Court or its predecessor based on a contract the existence of which the applicant denied, although the same sympathy cannot be extended in the case of any such proceedings based on an arrangement.

27    As previously indicated, the contract proceedings came to an end in December 1999 with the discontinuance of the application for special leave to appeal to the High Court.

28    On 8 May 2000 the industrial proceedings were relisted in the Commission before Marks J. (At this stage Fightvision’s creditor’s petition had been listed for hearing in the Federal Court.) Mr Tszyu was granted general liberty to amend within 14 days subject to the respondents in the Commission reserving their right to press for summary dismissal (Blue 3/494-7).

29    The amended summons that was filed in the Commission on 24 May 2000 included a claim that the contract be declared void in whole or in part or varied in whole or in part either ab initio or from some other time (cf s106(3)). Declarations were sought that the contract was unfair, harsh or unconscionable or contrary to the public interest. An order was sought against each respondent (Mr Mordey, Classic Promotions and Fightvision) pursuant to s106(5). The order sought payment of the judgment debt awarded in the Supreme Court proceedings, interest thereon, legal costs and disbursements payable pursuant to the Supreme Court’s order and other sums of money referable to orders made or claimed in the Supreme Court proceedings (Blue 3/499-501).

30    The grounds, reasons and particulars forming part of the amended summons traversed the formation of the contract, conduct under it between 1992 and 1995 and the purported exercise of the option for renewal. There are allegations that Fightvision acted unfairly to Mr Tszyu in exercising the option.

31    Mr Tszyu accepts that many of the allegations traverse issues which are foreclosed through the application of the principles of issue estoppel in their application to the Supreme Court proceedings. The respondent submits that the totality of the proceedings is foreclosed by application of those principles.

32    The amended summons purports to go beyond the issues fought in the contract proceedings in that it claims rights under the Act stemming from unfairness based upon circumstances as they appeared at the time the option to renew was exercised in January 1995 (see Blue 3/510-511). Whether or not equity’s jurisdiction to frustrate unconscionable conduct goes this far (cf Stern v McArthur (1988) 165 CLR 489) - a legal proposition I am prepared to assume for the purpose of argument - the claim of unconscionable conduct before Bainton J appears to have been fought and decided on the narrower basis of Mordey’s/Fightvision’s conduct at the inception of the contract (see Cross Claim at Blue 2/214 and judgment of Bainton J at Blue 1/62-64).

33    At the end of the day this is not the critical issue as I see it. To me it matters not whether the unconscionable conduct case before Bainton J was or even could have been fought on a front as broad as that of unfairness as defined in s105. It will be seen that Hunter J held that the unconscionable conduct case fought in the contract proceedings and the unfairness case now tendered in the Commission were not coterminous. The respondent disputes this, but (like Hunter J) I do not think this is determinative.

34    Much of the evidence intended to be adduced in the industrial proceedings was tendered before Bainton J, albeit on a narrower set of issues. However, some additional evidence has been foreshadowed (see par [12] of the judgment under appeal).

Hunter J’s reasons

35    In the judgment under appeal, Hunter J set out the facts as I have recounted them above.

36    His Honour observed that there was little doubt that the principal objective of the amended summons in the industrial proceedings was to defeat satisfaction of the judgment debt and to stave off the creditor’s petition in the Federal Court. He posed the questions for determination to be whether that purpose was Mr Tszyu’s dominant purpose and, if so, whether it constituted an abuse of process.

37    Hunter J observed that Mr Tszyu had made a “serious tactical error” in failing to claim relief in the Commission in a more timely way. He had also made a “tactical mistake” in not taking up an opportunity given in February 1996 at the commencement of the contract proceedings to move for a determination of the separate issue on liability: this delay meant that the application made on seventh day of the trial in the Commercial Division was doomed to failure. (I read these remarks as indicating that the error was to allow a final judgment to intervene, carrying with it the principles of issue estoppel. The mere failure to have made a timely application under Pt 31 r2 would not have been determinative (see also Fightvision Pty Ltd v Onisforou at 497).)

38    It had been submitted that Mr Tszyu’s conduct amounted to an election to pursue his rights at law and in equity rather than to exhaust his statutory rights under s106 of the Act. It was also argued that the basis upon which an unfair contract might be avoided or varied under s106 differed in no material respect from the issues raised in the claim of unconscientious conduct raised by Mr Tszyu before Bainton J.

39    These two submissions were rejected in the following passage, which also sets out the ultimate reasoning of Hunter J leading to the injunction challenge in this appeal:

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 the 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.

40 I would summarise this reasoning as follows: Mr Tszyu effectively exhausted his rights in relation to the contract in the Supreme Court proceedings. The industrial proceedings are untenable, not because of overlap of the unconscionability issue determined by Bainton J and the meaning of “unfair contract” under s105 of the Act, but because it is now too late to invoke s106. Section 106(5) cannot be used to claw back moneys payable for breach of contract, at least where the debtor's obligation to pay has been transmitted into a final judgment. “Given that view”, the dominant purpose of the industrial proceedings is to defeat the effect of the judgment and its enforcement through bankruptcy. An injunction lies to restrain such an abuse of process.

41    The plaintiffs before Hunter J were Fightvision and Mr Mordey (the respondents to the present appeal). In the court below no distinction was drawn between the two plaintiffs as regards their right to seek the injunction.

The submissions in outline

42    The appellant submits that Hunter J erred in his assessment of the scope of the Commission's jurisdiction. A contract does not have to remain on foot for the Commission to have jurisdiction stemming from a finding that the contract is "unfair". The relief sought in the industrial proceedings (as amended) falls within the broad power to make orders “in connection with” a contract declared wholly or partly void or varied (Brown v Rezitis (1970) 127 CLR 157). The finding that Mr Tszyu’s dominant purpose is to defeat the effect of the Supreme Court judgment was not open if the Commission's jurisdiction extends to the avoidance or variation of contractual rights that have been translated into a Supreme Court judgment.

43    The respondent submits that Hunter J was correct in his reasoning, especially if it is seen as based upon the dilatory and tactical conduct of a party who refrained from pressing any relevant claim in the Commission until it was far too late. Alternatively, the respondent submits that the injunction may be supported on the basis that Mr Tszyu’s conduct amounted to be unconscionable exercise of a legal right, was vexatious or oppressive according to the principles of equity, interfered with the integrity of the Supreme Court's processes, or was otherwise an abuse of process having regard to its collateral purpose of frustrating the enjoyment of the fruits of the judgment obtained in the Supreme Court.

Anti-suit injunctions and the Industrial Commission

44    Each party accepts that the inherent power to grant anti-suit injunctions as expounded in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 applies in the present case. This was the power invoked by Hunter J. The various ways in which the respondent supports the orders under appeal are also found in the joint judgment in CSR (at 391-395).

45 The jurisdiction of the Industrial Commission under s106 of the Act is exercisable only by the Commission in Court Session (see s153). That court is a superior court of record that, for the purposes of Part 9 of the Constitution Act 1902, is of equivalent status to the Supreme Court (see s152). Subject to the exercise of a right of appeal to a Full Bench of the Commission, its decision in such matters is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal (s179). The scope of these privative provisions was considered in Woolworths Ltd v Hawke (1998) 45 NSWLR 13.

46    These matters explain why the Supreme Court should proceed with caution in a case such as the present. Nevertheless, the appellant correctly accepts that (in a proper case) the power to issue an anti-suit injunction is available. Such an injunction is an equitable remedy in personam and is available to frustrate an attempted assertion of legal rights (including statutory rights) that is unconscionable, vexatious or oppressive or otherwise constitutes an abuse of process touching the Supreme Court.

47    Caution is underlined by comity when it is recognised that the Commission itself is bound to apply the principles of issue estoppel; that its remedies may be withheld having regard to unexplained delay; and that it possesses the full gamut of power to prevent abuse of process (cf generally Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129). The lastmentioned power has already been invoked in the present case, although the application to stay the industrial proceedings is presently stood over generally.

Did Hunter J misunderstand the Commission’s powers under s106 or otherwise err?

48    The question at issue in this appeal is whether Hunter J erred in the exercise of the power vested in the Supreme Court.

49    The jurisdiction of the Commission in relation to “contracts” is significantly broader than that of a court of general jurisdiction. The Commission may examine arrangements related to formal contracts (s105). It applies a broad statutory concept of unfairness (ibid) and it may take account of unfairness arising after contract formation (s106(2)) probably going beyond equity’s jurisdiction to frustrate unconscionable conduct (cf Stern v McArthur (1988) 165 CLR 489). The Commission’s remedial powers are broader than those of a court relying upon common law or equitable doctrines (see s106). The breadth of the Commission’s jurisdiction and powers has recently been expounded authoritatively (see Reich v Client Server Professionals of Australia Pty Ltd (2000) 49 NSWLR 551).

50    It is no answer that the relevant contract has been duly terminated before the Commission’s jurisdiction is invoked (see Walker v Industrial Court of New South Wales (1994) 53 IR 121, Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648 at 683-5, Reich at 564).

51 The nub of the appellant’s complaint is that Hunter J failed to recognise the scope of the Commission's powers under s106 when he concluded that the further prosecution of the industrial proceedings was doomed to failure. The appellant submits that the claim propounded in his amended summons lies squarely within the Commission's power to make money orders in connection with any contract declared void or varied pursuant to s106(5). The sum claimed by Mr Tszyu is calculated by reference to the Supreme Court judgment debt, but that debt represents no more than the recognised consequences of applying the rules of common law and equity to a contract which is “unfair” in a broader sense than that recognised at common law and in equity. True it is that the contract has come to an end through Fightvision’s acceptance of Mr Tszyu’s repudiation. However, the lawful termination of an "unfair" contract can be the very trigger of the Commission's power to avoid or vary the contract and to give consequential monetary relief (Walker, Beahan).

52    This would be a telling criticism were it not for the fact that Hunter J's reasoning turns, in large part, upon the existence of the Supreme Court judgment. (I say “in large part” because par [34] of the judgment, set out above, suggests that his Honour may possibly have considered that the expiry of the contract in itself rendered the industrial proceedings “otiose”.)

53    In the particular circumstances of this case the intervention of a final judgment was critical. On my interpretation of Hunter J's reasons this was the decisive step and, as such, it supports and sustains the orders under challenge in this appeal. I shall endeavour to explain this in my own words.

54    The amended summons in the Commission necessarily seeks monetary relief on the basis that the orders will be “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” (s106(5)). “Contract” has the extended meaning set out in s105, but a judgment of the Supreme Court in consequence of contested proceedings is not a contract. The Commission is given no appellate or other jurisdiction to set aside or vary a judgment of the Supreme Court.

55    The appellant submits that merely because the monetary relief claimed in the Commission is calculated by reference to the judgment awarded against him by the Supreme Court does not render the industrial proceedings an abuse of the proceedings in the Supreme Court or otherwise improperly interfere with the processes of the Supreme Court. I agree.

56    The appellant further submits that merely because the industrial proceedings are promoted for the purpose of defeating the effect of the Supreme Court judgment does not render them an abuse of process any more than resort to a statutory or constitutional right of appeal to the High Court of Australia with similar intent. I also accept these submissions.

57 These submissions, however, miss the point. The abuse of process lies at a different level - at the intersection of the principles of issue estoppel stemming from the judgment in the contract proceedings and the scope of s106(5) of the Act.

58    As indicated previously, I am prepared to assume that the appellant is correct in submitting that the Commission will not be prevented from considering the “unfair contract” issue by reference to the issues of unconscionability fought before and decided by Bainton J. But this still leaves the contract, novation, breach and damages issues resolved conclusively between the parties by virtue of the application of the principles of issue estoppel to the Supreme Court judgment. The appellant acknowledges that these principles will apply in the further prosecution of the industrial proceedings. This concession is properly made when it is recognised that the Commission is a superior court of record in its present role. It is exercising judicial power (Tana v Baxter (1986) 160 CLR 572).

59 The contract formed upon the due exercise of the option in 1995 was the basis upon which the issue of breach was addressed and concluded in the contract proceedings and the yardstick against which damages were calculated (see especially 47 NSWLR at 491-6, 497). Conversely, the award of damages was the enforcement of a secondary obligation necessarily based upon the primary obligation of the contractual terms cf Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 848-9). For that contract now to be declared void or varied in its terms (an essential precursor to relief pursuant to s106(5) whether against Fightvision or those standing behind it) would be to contradict the very basis upon which the judgment stands, together with issues necessarily decided by that judgment. Cf also Caird v Moss (1886) 33 Ch D 22. Viewed in this way, the continued prosecution of the industrial proceedings would run smack into the principles of issue estoppel and for that reason their continuation was properly held to be an abuse of process.

60    It is well established that the preclusive effect of an issue estoppel cannot be sidestepped by resort to fresh proceedings which are “unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings” (per Mason CJ, Deane J and Dawson J in Walton v Gardiner (1993) 177 CLR 378 at 393). It is no answer that the proceedings may be cast in a different mould ostensibly invoking a fresh cause of action (see generally Reichel v Magrath (1889) 14 App Cas 665, Hunter v Chief Constable of the West Midlands Police [1982] AC 529, Rogers v The Queen (1994) 181 CLR 251). It is equally well established that proceedings whose success depends upon litigating afresh an issue foreclosed by these principles may itself be permanently stayed for abuse of process and consequently dismissed for futility (Ridgeway v The Queen (1995) 184 CLR 19 at 41, 43). In a proper case of an anti-suit injunction will also lie (CSR at 393-4). This was a proper case for such an order.

61    In the upshot this appeal does not involve the issue whether a party ordered to pay costs in one set of proceedings can seek in other proceedings between the same parties to negate the effect of that order by claiming damages equivalent to the costs ordered to be paid (cf Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 33-37, Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 1100, Charlotte Brown v Image Clothing Pty Ltd [2000] NSWIR Comm 93). Nor does the appeal decide that the result of a Supreme Court judgment is never amenable to overreaching through the exercise of the Commission’s jurisdiction under s106 of the Act. These are large and difficult issues. The present case involves an injunction in personam to restrain the further prosecution of proceedings in another court where the relief sought could only be available if the doctrine of issue estoppel which binds all courts were to be jettisoned.

62    The appeal should be dismissed with costs.

63 PRIESTLEY JA: As recorded in the President’s reasons, it was common ground between the parties to the present appeal that issue estoppel would apply in the pending proceedings in the Industrial Relation Commission. It follows in my opinion that it is not open in those proceedings for Mr Tszyu to ask the Commission to exercise its powers under s 106 of the Industrial Relations Act 1996 to declare wholly or partly void or to vary the contract which was litigated in this court, and upon the basis of which a final judgment was entered against Mr Tszyu in respect of which all rights of appeal have come to an end.

64    I agree generally with the President’s reasons. I agree with the orders he proposes.

65    POWELL JA: I agree with Mason P.

**********