7 The case advanced for Mr Barataud by Mr I Latham of counsel was that considerable injustice would be visited upon Mr Barataud if leave to appeal were not granted and the appeal upheld, because the respondent was seeking to declare Mr Barataud bankrupt, which would result in him losing his passport and his capacity to earn income overseas. We note, however, that there was no evidence which would support those submissions, either before Boland J or this appeal bench, other than a letter from Mr Chipperfield's solicitors, which threatened bankruptcy proceedings, if the orders were not complied with.
8 It was also argued that there was a demonstrable case that the Court had exceeded its jurisdiction in this case and that questions of procedural fairness, with wider ramifications than this case, were raised by the appeal.
9 It was submitted that Staff J's decision showed that the agreement in issue required Mr Chipperfield to pay money to Mr Barataud, in relation to football contracts which he entered, whether or not such contracts were negotiated by Mr Barataud and that Mr Barataud had had nothing to do with a contract which Mr Chipperfield had entered with the Basel Football Club. It was submitted that Staff J had made no finding that the agreement required the performance of work in an industry, the jurisdictional prerequisite. In oral submissions it was conceded, however, that the players' agency agreement was within the Court's jurisdiction.
10 The jurisdictional argument was pressed in relation to a share purchase agreement, which was submitted not to be a contract whereby Mr Chipperfield performed work in an industry. On the approach of the High Court in Fish v Solution 6 Holdings Limited (2006) 80 ALJR 959, there could be no jurisdictional foundation for the orders made. The new provisions of s 106(2A) of the Act, did not alter this position.
11 As to the circumstances in which the proceedings had come to be heard ex-parte, it was complained that Mr Barataud had been denied natural justice. He had not been served with notice of the hearing and other documents as the Court's Rules required, so had been denied an opportunity to be heard before Staff J. It was also argued that while Mr Barataud had not entered a notice of appearance or notified his change of address, it was clear that Mr Chipperfield's representatives were aware of his telephone number and Post Office Box address. They had an obligation to properly and comprehensively advise the Court of all relevant matters. Again, we observe, there was no evidence to make out this submission.
12 The consequence of their failure was that Mr Barataud had been ordered to pay Mr Chipperfield $60,000 plus costs. It was trite that Mr Barataud should have been given an opportunity to be heard before the Court made orders against him.
13 The case for Mr Chipperfield was that the appeal was brought against an interlocutory judgment involving the exercise of a discretion refusing to extend time to appeal. The application for extension of time was governed by longstanding principles - see Cavacuiti v Toyota Motor Corporation Australia Limited (2002) 122 IR 247 at [40].
14 The discretion was exercised by Boland J having regard to matters such as why the appeal was out of time; the conduct of the parties; the nature of the litigation; the consequences for the parties and the prospects of Mr Barataud succeeding on appeal. A balance had to be achieved, having regard to the respondent's vested right to the judgment and the cost and inconvenience of interfering with the finality of litigation.
15 It was argued that the appellant had to demonstrate error of law on the part of Boland J, or that his Honour mistook the facts or failed to take into account material facts, in the conclusions reached. None of the factual findings were alleged to be erroneous. There was no suggestion that there was any error of the kind which would justify appellate intervention. The exercise of the discretion was reasonably open. The appellant merely invited the appeal bench to substitute its decision for that of Boland J.
16 It was also argued that nothing raised in the appeal would justify the grant of leave. There was, in reality, no issue of jurisdiction available to be raised, given the evidence Mr Barataud himself gave before Boland J. In truth, the appeal merely concerned the application of discretionary principles and the exercise of a discretion. The appeal had no wider ramifications than the particular case and the case advanced on appeal still left unexplained the appellant's failure to have regard to the originating process served on him, which led to the orders Staff J made.
17 As to jurisdiction, it was submitted that under the player's agency agreement which Staff J dealt with, the appellant was obliged to provide management or player's agent services to the respondent, which involved the performance of work, as was found. It was a classic work contract. The contract required the respondent to pay the appellant money, even if no work was performed. The second aspect of the parties' arrangement was to require the respondent to pay money for a shareholding in a company, that payment being designed as a sham to render payments under the player's agency agreement tax deductible. The two transactions bore a close relationship and were found to be part of the one arrangement between the parties.
18 It was also argued that the reliance placed by the appellant on the High Court's judgment in Fish failed to have regard to the effect of s 106(2A) of the Act, which was applicable and overcame the entirety of the difficulty alleged to arise from that decision.
19 It was also submitted that, even if leave to extend time to appeal were granted, the appellant would still face other significant hurdles, to which consideration had to be given. The fact remained that the appellant had elected not to appear in the proceedings and now effectively sought to run his entire case on appeal. Such circumstances would not warrant leave to appeal being granted.
20 As to the procedural fairness point raised, it could not be overlooked that the appellant always conceded that he had been served with the initiating process, but had elected never to appear in the proceedings. It was not for the Court or the respondent to bring the appellant to court. While service of affidavits and notification of the hearing was required by Staff J, that was precautionary and did not excuse or explain the non-appearance. Staff J was well appraised that there had not been service of affidavits, as he had directed, but only attempted service. There was no denial of procedural fairness resulting. The originating summons placed the appellant on notice of what would occur, if there was no appearance.
21 Also of relevance was Boland J's scepticism of the appellant's excuses for his non-appearance, although the judgement did not turn on that fact. It was always a matter for the appellant to satisfy Boland J that there was a sound basis for believing that the appellant had a good reason for not appearing at first instance and not appealing within time. The onus was not discharged. Nor had the appellant proffered to meet the costs thrown away by the respondent, as the result of the appellant having permitted the matter to proceed ex parte at first instance.
22 In reply it was conceded that the appellant had the onus of demonstrating error on the part of Boland J, as the respondent submitted. The fundamental point of the appeal was said to be the denial of procedural fairness, which had been demonstrated. It was submitted to be clear on the evidence that service of the notice of hearing was sought to be effected shortly prior to the hearing, at a place where the respondent understood the appellant no longer to reside. (It was, in fact, asserted that the respondent knew where to locate the appellant).
23 As to the two transactions dealt with by Staff J, it was argued that the evidence did not permit the conclusion that there was a close relationship between them, or any overall arrangement of any kind. Section 106 (2A) of the Act could not save the situation, which did not give the Court jurisdiction in relation to all contracts between two parties, when one contract alone was amenable to the s 106 jurisdiction. The requirement was that the other contract be a related contract, or collateral arrangement, which had not been demonstrated. The shareholding contract was simply an unrelated commercial arrangement.
Consideration
24 The application is for leave to appeal Boland J's decision under s 189 of the Act, to refuse to extend time to appeal the decision given by Staff J.
25 It is well settled that leave to appeal will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. An appeal bench is ultimately concerned with correction of error. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 and Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45].)
26 It is also well settled that 'some issue of real significance in the interests of justice will need to be identified for such an application to succeed.' (See Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 at [4].) If an appeal seeks, by and large, merely to challenge findings of fact or the exercise of a discretion, it will face a significant hurdle in obtaining leave. (See Box Valley Pty Ltd v Price (2000) 97 IR 484 [4].)
27 There is no question that the law in relation to applications for extension of time to appeal has been well settled by various Full Bench decisions, which Boland J applied, as his Honour was bound to do. (See, for example, Skelly v Proud's Jewellers Pty Limited (1994) 53 IR 3 at 5-6; WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 300-301.) We refer, in this respect, to the encapsulation of the relevant principles in Cavacuiti v Toyota Motor Corporation Australia Limited. This application raises no new questions in that regard.
28 It is also well settled that merely raising a jurisdictional argument provides no guarantee that leave to appeal will be granted: for example, the Commission has regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction; Knowles at 381. In this case, of course, the jurisdictional point now raised did not concern the judgment appealed against in these proceedings, but rather the proceedings at first instance before Staff J, which proceeded ex-parte.
29 There can be no doubt that the view taken by Boland J of the evidence given by Mr Barataud, as to the circumstances in which the hearing before Staff J came to proceed ex-parte, was open on the evidence. There was no issue that Mr Barataud was served with the originating process and was put on notice of the necessity to put on an appearance and to participate in the proceedings, otherwise the matter would be dealt with in his absence. The initiating process served upon him expressly advised Mr Barataud that: