Barataud v Chipperfield

Industrial Relations Commission (NSW)|2006-03-14|Before: Boland J, Mr J, Staff J

CITATION: Barataud v Chipperfield [2006] NSWIRComm 131

APPLICANT Alain Barataud PARTIES: RESPONDENT Scott Chipperfield

Extension of time - Application for leave to appeal and appeal - Application for stay - Unfair contract - Ex parte proceedings in which applicant in s 106 proceedings successful in obtaining orders against respondent - Respondent sought extension of time to appeal on grounds that he was not notified of s 106 proceedings and was denied natural justice - Regard had to history of proceedings and conduct of the parties - Found that respondent was notified of proceedings but did not enter an appearance - Change of address by respondent following first notice of appointment of hearing - Respondent not notified of subsequent hearings because he had changed his address - Disregard by respondent for legal process and protection of his own interests - Consideration of prospects of success on appeal - Application to extend time refused CATCHWORDS: Unfair contract - Extension of time - Application for leave to appeal and appeal - Application for stay - Ex parte proceedings in which applicant in s 106 proceedings successful in obtaining orders against respondent - Respondent sought extension of time to appeal on grounds that he was not notified of s 106 proceedings and was denied natural justice - Regard had to history of proceedings and conduct of the parties - Found that respondent was initially notified of proceedings but did not enter an appearance - Change of address by respondent following first notice of appointment of hearing - Respondent not notified of subsequent hearings because he had changed his address - Disregard by respondent for legal process and protection of his own interests - Consideration of prospects of success on appeal - Application to extend time refused

LEGISLATION CITED: Industrial Relations Act 1996

Anthony Andrew Cavacuiti and another v Toyota Motor Corporation Australia Limited (2002) 122 IR 247 Box Valley Pty Ltd v Price (2000) 97 IR 484 Chipperfield v Barataud [2006] NSWIRComm 31 CASES CITED: Fish & Anor v Solution 6 Holdings Ltd & Ors [2005] HCA Trans 236 I Notaras and K. L. Armstrong [2005] NSWIRComm 208 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Solution 6 Holdings Limited & Ors v Industrial Relations Commission of NSW & Ors (2004) 60 NSWLR 558

APPLICANT Mr I Latham of counsel Solicitor: Mr J Antoun Uther Webster & Evans LEGAL REPRESENTATIVES:

RESPONDENT Mr A Joseph of counsel Solicitor: Mr C Sheppard Russell McLelland Brown

Applications by Alain Barataud to extend time for leave to appeal and to appeal from a judgment and orders of Justice Staff given on 9 February 2006 in Matter No IRC 2779 of 2005 and for stay of judgment and orders

1 Alain Barataud is a players' agent and manager. Scott Chipperfield is a professional football player. In Chipperfield v Barataud [2006] NSWIRComm 31, Staff J, in ex parte proceedings, found that oral and written contracts between Mr Barataud and Mr Chipperfield were harsh and unfair and pursuant to the provisions of s 106 of the Industrial Relations Act 1996 made orders against Mr Barataud voiding the contracts and granting compensation to Mr Chipperfield. In his judgment Staff J referred to the non-appearance of Mr Barataud in the following terms: 2 There was no appearance on behalf of the respondent when the matter came before the Registrar. There has been no communication received by the Court from the respondent himself. No appearance has been filed by the respondent. 3 No response to the summons for relief ("the summons") has been filed and there was no appearance for the respondent when the matter was listed for conciliation. A certificate under s 109 of the Industrial Relations Act 1996 ("the Act") was issued and the respondent notified of the hearing. 4 The solicitors for the applicant served affidavit material on the respondent at his last known address. There was no communication from the respondent and no appearance for the respondent at the hearing. The hearing proceeded ex parte. 2 As to the unfairness Staff J found as follows: 28 The evidence led in this case, in my view, amounts to oppressive exploitation. There can be no doubt that the evidence demonstrated the requisite unfairness of the contract and the respondent's unconscionable conduct towards the applicant. The oral and written players' contract contained terms that permitted the respondent to obtain and claim payments of money from the applicant in circumstances where the respondent performed no work and provided no service to the applicant in respect of the negotiation of any employment contracts with Basel FC. 29 In my view, the oral and written contracts permitted the respondent to take commercial advantage of the applicant and to unjustly and unfairly claim payments of commission from the applicant. The exclusivity clause which deprived the applicant negotiating employment contracts on his own behalf was clearly harsh and unfair. 30 In respect of the contract or arrangement whereby the applicant paid the sum of $35,000 to the respondent for a shareholding in ABSM, which intended to market beach soccer with the applicant, this contract or arrangement was also unfair. The applicant met the respondent's terms in relation to the venture; he provided money to the respondent but received no shares or benefit at all from ABSM or any income which was generated by the business. The respondent has retained all of the money provided by the applicant and appears to continue to operate ABSM.

3 Mr Barataud now seeks an extension of time to apply for leave to appeal and appeal and, if the extension is granted, a stay of the orders made by Staff J on 9 February 2006. The grounds in support of the application to extend time were: 1. It is in the interest of justice that the Applicant be given an opportunity to be heard. 2. Denial of the right to be heard would constitute a denial of natural justice to the Applicant. 3. The Applicant has a bona fide defence to the Proceedings No. 2779 of 2005. 4. The Applicant was not notified of the Hearing date in Proceedings No. 2779 of 2005. 5. The Hearing was conducted in the absence of the Applicant and constituted a denial of Natural Justice. 6. Staff J entered judgment in respect of an issue which did not constitute an industrial matter as defined in the Industrial Relations Act 1996 and as such fell outside the scope of the commission's jurisdiction. The evidence 4 Two affidavits were filed in support of the application to extend time. The first by Mr Barataud and the second by Joseph Antoun, solicitor for the applicant. Mr Barataud relevantly deposed to the following: (1) On 3 November 2004 he filed an Ordinary Statement of Claim in the District Court of New South Wales seeking damages against the respondent for breach of a Player's Agency Agreement (2) He received a summons for relief in relation to proceedings in matter No IRC 2779 of 2005 in about June 2005 (the matter before Staff J). (3) On about 19 June 2005 Mr Barataud received a letter from the respondent's solicitors advising they had mentioned his appearance in the District Court proceedings and serving a further copy of the summons. (4) On or about 25 July 2005 Mr Barataud changed his residential address. He did not lodge a re-direction of post with the Post Office. (5) In about September 2005 Mr Barataud had a conversation with Mr Chipperfield in which it was agreed that Mr Barataud would discontinue the District Court proceedings and Mr Chipperfield would discontinue the unfair contract proceedings before the Industrial Court. (6) On 10 February 2006 Mr Barataud was told by a friend that he had seen an article to the effect that Mr Barataud had lost his case in the Industrial Court. (7) Mr Barataud claimed he had received no advices regarding the listing of any proceedings before the Industrial Court and that if he had he would have attended. Exhibited to the affidavit was an Appointment for Hearing sent on 8 February 2006 to Mr Barataud's previous residential address. He obtained a copy of the Notice from the Industrial Registry on 7 March 2006. (8) On 16 or 17 February 2006 Mr Barataud received a call on his mobile phone from Chris Sheppard who identified himself as Mr Chipperfield's lawyer. Mr Sheppard advised Mr Barataud that judgment had been obtained against him on 9 February 2006 and that Mr Chipperfield was seeking payment of the monies ordered and costs. (9) Mr Barataud had a post box address at Bondi Junction which he had held for seven years. Some days after 16 or 17 February 2006 Mr Barataud received a letter at his post box address from Mr Chipperfield's solicitors seeking payment of the monies owed from the judgment of Staff J. 5 Mr Antoun's affidavit had exhibited to it the various Appointments for Hearing that had been sent to Mr Barataud's previous residential address but which he did not receive (except one) because in July 2005 he moved to a new address. 6 Whilst Mr Chipperfield was represented by counsel there was no evidence filed by Mr Chipperfield in relation to the application to extend time because Mr Chipperfield was absent overseas training with Australia's World Cup soccer team and there had been no time to prepare and file any material. Submissions

7 Mr Antoun for the applicant referred to the decision of Walton J, Vice President in Anthony Andrew Cavacuiti and another v Toyota Motor Corporation Australia Limited (2002) 122 IR 247 where his Honour at [41] identified a number of propositions relevant to the issue of granting an extension of time: 1) The grant of an extension of time is not automatic and the object of those rules which fix times for doing acts is to ensure they do not become instruments of injustice; the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.

(2) The discretion can only be exercised in favour of an extension of time upon proof that compliance with the rules will work an injustice upon the applicant therefore which necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time: see Avery v No 2 Public Service Appeal Board [1978] 2 NZLR 86 at 92; and Jess v Scott at 194-195. (3) An application for an extension of time in which to file an appeal always requires consideration of the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-264; and Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. (4) Upon the expiration of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: see Vilenius v Heingar (1962) 36 ALJR 200 at 201.

(5) There must be material upon which it can be satisfied that to refuse the application to extend time would constitute an injustice: see Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1965] 3 All ER 933 at 935. (6) "The difference between two weeks and four weeks is not much (by which the time is to be extended) … We never like a litigant to suffer by the mistake of his lawyers": per Lord Denning in Ghosh at 601. In accepting the approach inherent in the above propositions, the Full Commission observed in Skelly (at 6):

"The Commission's Rules require an appeal to be filed within 28 days of a decision. There is a public interest in the prompt institution and prosecution of litigation before the Commission. Indeed the Act is designed with this as a feature. It follows that a successful litigant before the Commission is generally entitled to proceed on the basis that a decision in its favour will stand, in the absence of an appeal being filed within the time prescribed. There is a discretion in the Commission to extend the time for filing an appeal. Such a discretion will not however be lightly or automatically exercised, particularly if the application is made after the time for appeal has expired. The fact that there will be no prejudice to a respondent party by an extension of time being granted is one factor which the Commission will take into account, but will not be solely determinative of the matter. In this context the cost and inconvenience of litigation not brought within the limitation period prescribed is a matter to which regard may properly be had when an application for extension of time is made. The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to all the circumstances before it." 8 Mr Antoun relevantly submitted: (1) His client and Mr Chipperfield agreed in September 2005 to discontinue their respective proceedings against one another. On the basis of that conversation Mr Barataud assumed nothing further needed to be done by him. (2) Except for the initial receipt of the summons for relief in July 2005 Mr Barataud received no other advice in respect of the Industrial Court proceedings because his address for service had changed in late July 2005. (3) The respondent's solicitors had the applicant's post box number and mobile phone number but made no attempt prior to judgment to contact the applicant. (4) The litigation involves a standard FIFA player's contract that is used worldwide. It should not have been dealt with ex parte in circumstances where the applicant was denied natural justice. (5) There are no adverse consequences for the applicant if the extension is granted. (6) The respondent's solicitors have threatened bankruptcy proceedings. That would involve the applicant in having to surrender his passport. In such circumstances he would be unable to earn income. (7) The applicant's case has a reasonable prospect of success. 9 Mr A Joseph of counsel appeared for the respondent, Mr Chipperfield. Mr Joseph referred to the decision of Backman J in I Notaras and K. L. Armstrong [2005] NSWIRComm 208. Mr Joseph referred to the following paragraphs in that judgment: 8 The justification for requiring an explanation for any appeal arises from the rules of court which must prima facie be obeyed; in order to justify a court extending the time during which some step in procedure is required to be taken, there must be some material upon which the court can exercise its jurisdiction: Ratnam v Cumarasamy (1965) 1 WLR 8 at 12. 9 The above reference to Ratnam v Cumarasamy was relied upon by Wright J, President in De Luxe Cab Company Limited (formerly known as De Luxe Red and Yellow Cabs Co-operative Trading Society Limited) v Grenside (1999) 92 IR 384 at 390. There his Honour held: In my view the material filed by the applicant fails on any reasonable analysis of it to provide any proper explanation of the failure to file the appeal within the time required... the evidence adduced by the applicant offered no adequate explanation why the notice of appeal was not filed in a regular manner. ... 15 Skelly v Proud's Jewellers Pty Limited (1994) 53 IR 3 at 5-6; Cavacuiti v Toyota Motor Corporation Australia Limited (2002) 122 IR 247 are two authorities that have examined the usual discretionary factors which a court or commission may consider in these types of applications. According to both decisions such discretionary factors include: (a) there is a public interest in the prompt institution and prosecution of litigation before the Commission. It follows from this that a successful litigant is generally entitled to proceed upon the basis that a decision in his or her favour will stand in the absence of an appeal being filed within the time prescribed. (Put another way, a respondent has a "vested right to retain the judgment" unless the application is granted: Vilenius v Heingar (1962) 36 ALJR 200 at 201), (b) the discretion to extend time for filing an appeal will not be lightly or automatically exercised particularly if the application to extend time is made after the time for appeal has expired, (c) the fact that the respondent to such an application will not suffer any prejudice is not determinative of the matter, (d) the discretion will only be exercised in favour of an applicant upon proof that compliance with the rules will work an injustice against an applicant. This will require regard to be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application. (and will in turn require the material put before the Commission so that it can satisfy itself that a refusal to extend time would provide an injustice), (e) the applicant's prospects of success of the appeal. 10 Mr Joseph's submissions may be summarised as follows: (1) The content of the conversation alleged to have taken place between the applicant and respondent in September 2005 is denied. (2) The applicant was served with the initiating process and that is not denied. (3) The applicant changed his address in July 2005 but took no steps to advise the Court of the change of address. (4) The Registry sought to advise Mr Barataud on a number of occasions of proceedings before the Court and every opportunity was provided to him to appear or be represented. (5) The applicant deposed that he was told by a friend on 16 or 17 February 2006 that he had lost the case in the Industrial Court. However, the applicant took no steps to contact a lawyer until 3 March 2006 in relation to the matter and the appeal was not filed until 10 March 2006, outside the 21 day period. (6) The District Court proceedings were commenced by Mr Barataud in 2004. On 20 September 2005 the proceedings were dismissed for want of prosecution, a verdict was entered in favour of Mr Chipperfield as the defendant on a cross claim and Mr Barataud was ordered to pay Mr Chipperfield's costs of the proceedings. Mr Barataud never attended in the District Court proceedings. His solicitors at the time had filed a notice ceasing to act but still Mr Barataud never presented himself to the Court. (7) Mr Chipperfield's lawyers were under no obligation to contact the applicant regarding the listing of proceedings before the Industrial Court. But in any event it is denied that they did not attempt to contact the applicant in this respect. (8) The applicant's prospects of success on appeal are not high. 11 In reply, Mr Antoun submitted that the delay following Mr Barataud being told of the result in the Industrial Court was due to firstly, the applicant's unfamiliarity with the legal system; he is a French national and English is a second language. Secondly, there were some problems for Mr Barataud in consulting his original lawyers because of an issue over costs relating to the District Court proceedings and Mr Barataud was unable to obtain advice from them. He was eventually referred to his current solicitors. 12 Mr Antoun submitted that in relation to the District Court proceedings Steingold Abel Lawyers initially represented the applicant and the address for service was the address of that firm of solicitors. Mr Antoun contended that Steingold Abel Lawyers would have filed a notice of ceasing to act because of a cost issue and it was not known from that point what the address for service would have been but most likely it would have been the address shown on the Statement of Claim for the Plaintiff which was an earlier address at which Mr Barataud had resided in November 2004 when the Statement of Claim was filed. Consideration

13 The Court has the power to grant an extension of time pursuant to s 189 of the Act, which is in the following terms: 189 Time and procedure for making appeals (1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days after the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows. (2) Further time may be allowed, either before or after the end of that 21-day period. 14 The principles governing the granting of an extension are set out in the judgments earlier referred to and there is no need to repeat them except to say that what has to be considered is whether strict application of the time limit in s 189 would work an injustice upon the applicant. That necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time. It also requires a consideration of the prospects of success of an appeal.

15 The applicant's case here is essentially that in June 2005 he was served with a summons for relief pursuant to s 106 of the Act. The applicant says, however, he had a conversation with Mr Chipperfield in September 2005 where it was agreed that they would discontinue the respective proceedings against each other, that is to say for Mr Barataud's part he would discontinue the District Court proceedings against Mr Chipperfield and Mr Chipperfield would discontinue the proceedings before the Industrial Court against the applicant. 16 Mr Barataud says he heard nothing more and that this was because he had changed his address so that mail sent to his previous address at 9 Penkivil Street, Bondi did not reach him. He further says that as soon as he became aware of the judgment against him he took steps to seek advice and there was delay in that respect because: his original solicitors had a cost issue with him in relation to the District Court proceedings; he did not understand the legal system; English was a second language; and, it was not until he was referred to his current solicitors that he was able to obtain proper advice as to an appropriate course of action. 17 There are a number of difficulties with the applicant's application for an extension of time. The applicant concedes he was served with the summons for relief on 14 June 2005. Attached to the summons was advice that the summons was listed for mention on 11 August 2005. The applicant was also advised that he was required to file a Notice of Appearance with the Industrial Registrar within seven days of the service upon him of the Summons. Further, that he was required to file a Reply to the summons within 28 days and that if he did not an order might be made against him. Mr Barataud was also advised that if he had any inquiries he could phone the list clerk on a given telephone number. 18 No notice of appearance was filed by Mr Barataud in accordance with the directions given to him on 14 June 2005 and no other action was taken by him in relation to the summons. Mr Barataud did not attend the mention on 11 August. As for doing nothing in relation to the August mention he cannot use the excuse that Mr Chipperfield had agreed to discontinue the proceedings, because according to Mr Barataud's affidavit that conversation did not take place until September 2005, a conversation that was, in any event, denied by Mr Chipperfield's counsel. 19 I fear that Mr Barataud's failure to take any action in relation to the mention on 11 August 2005 - indeed, he ignored it completely - fatally undermines the credibility of his position that after the conversation with Mr Chipperfield in September 2005 he believed that the proceedings in the Industrial Court had been discontinued and that was the reason he did nothing. 20 What adds weight to the degree of scepticism I have regarding Mr Barataud's pleading and that any conversation of the nature described by Mr Barataud actually took place in September 2005, is that he commenced proceedings in the District Court in November 2004, deposed that he said to Mr Chipperfield in September 2005 that he would discontinue those proceedings and yet there is no evidence he took any action to carry out his undertaking. The proceedings in the District Court were dismissed for want of prosecution and orders made against Mr Barataud on 20 September 2005. Despite the matter in the District Court apparently being listed for directions on at least two occasions Mr Barataud never attended those proceedings. 21 The conversation Mr Barataud said he had with Mr Chipperfield was said to have taken place at a training session in September 2005 prior to a football match between Australia and the Solomon Islands. The only football match between those two nations at that time was on 3 September 2005, so any training session would have to have been on or about 1 or 2 September. It is apparent from the fact the proceedings were dismissed for want of prosecution that Mr Barataud did not take steps to discontinue the District Court proceedings between 1 or 2 September and 20 September 2005. What is more, Mr Barataud did not become aware of the dismissal of the District Court proceedings until he was so advised by his present solicitors in March 2006 after they had made inquiries. Thus, no steps were taken by Mr Barataud to discontinue the District Court proceedings in accordance with his alleged undertaking to Mr Chipperfield to do so. 22 Mr Barataud's change of address occurred after he had been served with the summons and an advice from the Industrial Registrar the matter had been listed for mention on 11 August 2005. The address for service on the summons was 9 Penkivil Avenue Bondi, an address from which Mr Barataud departed in July 2005 without advising the Registrar of the change of address. In my opinion, the applicant had no intention of attending to the summons in the way he was directed. 23 It was submitted that Mr Barataud was a French national and English was a second language. It was, nevertheless, conceded he spoke English "quite well". It was submitted Mr Barataud did not understand the legal procedures. Not many ordinary citizens do, but they do generally know that if they have been served with a summons and a notice to appear in Court on a certain day that they either attend or seek the assistance of a lawyer, or both. Mr Barataud did neither. Of course, I note that Mr Barataud was quite capable of obtaining a lawyer's assistance in filing his statement of claim against Mr Chipperfield in the District Court in November 2004. 24 Mr Barataud made much of the fact that he was not advised of any proceedings in the Industrial Court after 11 August 2005. The inference is that he would have attended. The inference I am being asked to draw is somewhat feeble given the failure to attend or be represented by a lawyer on 11 August 2005. But in any event, the fault that Mr Barataud did not receive the various communications from the Registry lies squarely with him. He was served with the summons at 9 Penkivil Avenue Bondi, moved house without re-directing his mail and without advising the Registrar of the change of address. The claim of denial of natural justice rings somewhat hollow when the reason Mr Barataud was not advised of Court listings was because of his own failure to advise of a change of address and knowing that the address for service held by the Registrar was, after July 2005, the wrong address. 25 Mr Barataud became aware on about 10 February 2006 that there may have been a judgment against him involving Mr Chipperfield in the Industrial Court. It appears he did nothing with that knowledge until after 15 February 2006 when he received a call from Mr Chipperfield's solicitors, followed by a letter from the respondent's solicitors the next day seeking payment of the monies ordered by Staff J. It seems that about another 10 days elapsed before Mr Barataud spoke with his present solicitors who then acted quickly in bringing these proceedings. 26 Mr Barataud's failure to act quickly in February 2006 was indicative of his casual disregard for the legal process and the timely protection of his own interests. Such an attitude counts against any decision to grant Mr Barataud the indulgence of an extension of time in this matter. In other words, the history of the litigation and Mr Barataud's conduct militates against granting an extension of time to appeal. 27 As I earlier noted, the authorities dictate that an application for an extension of time in which to file an appeal always requires consideration of the prospects of the applicant succeeding in the appeal. 28 In Cavacuiti, Walton J stated at [75]: In appeal proceedings under this Act, where an appeal from a judgment under s106 does not lie as of right, a consideration of the prospects of success of an appeal will necessarily involve, in my view, a consideration as to whether the applicant could be expected to obtain leave to bring that appeal pursuant to s106 of the Act. Consideration of the merits of an appeal may bear upon the question of leave but it is not determinative of that issue, so that consideration of an application under s189 will not be confined to the existence of an arguable case on the merits of the appeal. I follow the judgment of Wright J in Tadic v Beslic in this respect .

Thus, in assessing the prospects of success on appeal it is appropriate to consider whether the applicant could be expected to obtain leave to appeal. The only information I have in that regard are the grounds of appeal and a written submission from Mr I Latham of counsel for the applicant. 29 The grounds of the appeal in this case are as follows: 1. That the Applicant has a bona fide defence to the proceedings 2779 of 2005. 2. That the Applicant was not notified of the Hearing date in proceedings numbered 2779 of 2005. 3. That the hearing was conducted in the absence of the applicant and constituted a denial of natural justice. 4. That Staff J entered judgment in respect of an issue which did not constitute an industrial matter as defined in the Industrial Relations Act 1996 and as such fell outside the scope of the Commission's jurisdiction. 30 As to the first ground, I understand this to be that Mr Barataud has another version as to his representation of Mr Chipperfield's interests in negotiations with various soccer clubs in the period 2001 to 2003. Mr Chipperfield's evidence before Staff J, for instance, was that Mr Barataud did not perform any work and provided no service to him in respect of the negotiation of contracts with Basel FC. Further, that Mr Chipperfield paid Mr Barataud $35,000 for a 20 per cent shareholding in a company owned by Mr Barataud, Australian Beach Soccer Management Pty Ltd ("ABSM") but never received the shares. 31 Mr Barataud deposed in his affidavit that he was involved in the negotiations and could bring evidence from other individuals to prove that fact. Further, in relation to the shares in ABSM, Mr Barataud said that Mr Chipperfield wanted to minimise his tax liability by becoming a silent shareholder in the company. The $35,000 was paid to Mr Barataud but he contended this was only part of a total of $90,000 owed by Mr Chipperfield and the difference of $55,000 was still owed. 32 It may be seen that, subject to leave being granted to the applicant to bring further evidence, the appeal would involve factual circumstances concerning only the immediate parties and whilst this would not preclude leave to appeal being granted, an appeal must raise substantial and important considerations: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381. Mere challenges to findings of fact or the inferences to be drawn from them less frequently attract the grant of leave to appeal: Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4]. 33 There is nothing in Mr Barataud's affidavit that would indicate that the Full Bench on appeal, or a single member to whom the matter might be remitted, would likely find that Mr Barataud's version of events was to be preferred to that of Mr Chipperfield. The grant of leave to appeal in such circumstances would not be easily achievable. 34 The other substantive aspect to Mr Barataud's appeal is a jurisdictional one. It was contended the share sale agreement was not a contract that led directly to the performance of work in an industry: Solution 6 Holdings Limited & Ors v Industrial Relations Commission of NSW & Ors (2004) 60 NSWLR 558 at [59] per Spigelman CJ. 35 I note that the share sale agreement was only one aspect of the respondent's claim that was held to be unfair and the other contracts between the applicant and the respondent that were held to be unfair are not challenged on jurisdictional grounds. Moreover, the Court of Appeal's decision in Solution 6 is subject to challenge in the High Court, the case having been heard and judgment reserved: Fish & Anor v Solution 6 Holdings Ltd & Ors [2005] HCA Trans 896; 917 (8 and 9 November 2005). These considerations have to be balanced against the prospects of prejudice to the respondent through the inconvenience and cost associated with what could, in effect, be a new trial if an extension of time to appeal were granted. In my opinion, the balance lies in favour of the respondent. 36 The second and third grounds of appeal have already been dealt with and, in my opinion, given the applicant's conduct, lack substance. 37 The fourth ground of appeal was not explained to me and I do not understand it, unless it refers to the share sale agreement, which I have dealt with. 38 I have decided that the applicant's application for an extension of time for leave to appeal and appeal should not be granted. It follows that it is unnecessary to consider the application for a stay of the judgment and orders of Staff J. Orders

39 The Court makes the following orders: (1) The application for an extension of time for leave to appeal and appeal is refused. (2) The applicant shall pay the respondent's costs of the proceedings in an amount as agreed or, if agreement cannot be reached, as assessed. ________________________________

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At a glance

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Judgment (19 paragraphs)

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Cases Cited (10)

Cited By (2)