TSZYU v FIGHTVISION PTY LTD [2001] NSWCA 103

New South Wales Court of Appeal

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

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

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40708/00 MASON P PRIESTLEY JA POWELL JA

Wednesday 18 April 2001 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.