Industrial Relations Commission of New South Wales in Court Session CITATION : Cavacuiti & Anor v Toyota Motor Corporation Australia Limited [2003] NSWIRComm 301 FIRST APPELLANT: Anthony Andrew Cavacuiti SECOND APPELLANT: PARTIES : Berridale Investments Pty Limited (ACN 078 267 213) RESPONDENT: Toyota Motor Corporation Australia Limited (ACN 004 384 338) FILE NUMBER: IRC 4311 of 2002 CORAM: Wright J President; Schmidt J; Boland J CATCHWORDS : Appeal - Application for leave to appeal and appeal - Unfair contract - Appealable error not demonstrated - Leave to appeal refused - Appeal dismissed HEARING DATES: 09/12/2003 EXTEMPORE JUDGMENT DATE : 09/12/2003 APPELLANTS: Mr J S van Aalst of counsel SOLICITORS: Austin & Giugni LEGAL REPRESENTATIVES: RESPONDENT: Mr C Barton, solicitor SOLICITORS: Freehills JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President SCHMIDT J BOLAND J Friday 12 September 2003 Matter No IRC 4311 of 2002 ANTHONY ANDREW CAVACUITI AND ANOTHER v TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED Application by Anthony Andrew Cavacuiti and another for leave to appeal against a decision of Justice Marks given on 5 June 2002 in Matter No IRC 666 of 1999 JUDGMENT OF THE COURT (Extempore) 1 This is an application for leave to appeal and, if granted, an appeal. Counsel for the appellants was permitted to open his case on all bases. However, he helpfully emphasised those aspects of his arguments which went to the issue of leave to appeal. We thereupon decided to deal with the matter on the basis that leave to appeal should be dealt with as an initial and separate matter. 2 Having heard the parties we are satisfied that this is not a case where the appellants have demonstrated that leave to appeal should be granted. The issues raised on appeal do not go to questions of principle. They concern alleged errors in the exercise of discretion by the trial judge, his Honour Justice Marks, as well as material errors of fact and law. It was particularly argued that his Honour paid regard to irrelevant matters in relation to the McGee site, in determining that no relief could be granted in favour of the appellants. 3 We are satisfied that appealable error was not demonstrated. His Honour found that there had been unfair conduct by the respondent in relation to that site, but it was not such as to warrant any orders avoiding or varying the parties' arrangement. We are satisfied that the appellants have not demonstrated an arguable case that the decision was in error. Nothing has persuaded us that his Honour's findings of fact or exercise of discretion could properly be interfered with. His Honour's factual findings were plainly open on the evidence. In those circumstances it is not possible to conclude that the discretion miscarried. 4 The particular complaint advanced on appeal was that his Honour failed to make money orders in the nature of restitution in favour of the appellant in respect of costs incurred by the appellant under the parties' arrangement, while it persisted. Given that his Honour came to the conclusion that there was no basis upon which the arrangement could properly be avoided or varied, no basis for the making of any money orders arose. We consider that there was no error in those conclusions. 5 Having reached these conclusions on the substance of the appeal, in the context of considering leave to appeal, we do not consider it open to us, or appropriate, to grant leave to appeal. For these reasons, we accordingly refuse leave and dismiss the appeal. 6 [The Full Bench then heard the parties on the issue of costs and continued] We make the usual orders. They are that the appellants should pay the respondent's costs of the appeal in the sum as agreed or, in default of agreement, as assessed. __________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.