Barataud v Chipperfield

LEGISLATION CITED: Industrial Relations Act 1996

Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 353 Barataud v Chipperfield [2006] NSWIRComm 131 Barataud v Chipperfield (No 2) [2006] NSWIRComm 175 Box Valley Pty Ltd v Price (2000) 97 IR 484 Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 Cavacuiti v Toyota Motor Corporation Australia Limited (2002) 122 IR 247 Chipperfield v Barataud [2006] NSWIRComm 31 CASES CITED: De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482 Fish v Solution 6 Holdings Limited (2006) 80 ALJR 959 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Nutshack Franchise Pty Ltd and Others v Smith and Another (1999) 90 IR 355 Old UGC v Industrial Relations Commission in Court Session (2006) 80 ALJR 1018 Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265 Skelly v Proud's Jewellers Pty Limited (1994) 53 IR 3 Strathfield Group Ltd v Hall (2002) 121 IR 158 WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298

APPELLANT: Mr I Latham of counsel SOLICITORS: Uther Webster Evans LEGAL REPRESENTATIVES: RESPONDENT: Mr R Reitano of counsel SOLICITORS: Russell McLelland Brown

CORAM: Walton J, Acting President Schmidt J Backman J

Application by Alain Barataud for leave to appeal and appeal against a judgment of Justice Boland given on 24 April 2006 in Matter Number IRC 1406 of 2006

1 This is an application for leave to appeal and appeal from a decision given by Boland J on 20 April 2006 (Barataud v Chipperfield [2006] NSWIRComm 131). His Honour refused an application for extension of time to appeal from a decision given by Staff J on 9 February 2006, in which Staff J dealt with two contracts between the parties, pursuant to s 106 of the Industrial Relations Act 1996 (Chipperfield v Barataud [2006] NSWIRComm 31). In a judgment given on 19 May, we declined an application for a stay of the orders made by Staff J, taking the view that those orders could not be stayed in an appeal brought against the decision given by Boland J. (Barataud v Chipperfield (No 2) [2006] NSWIRComm 175.) 2 As we noted in Barataud (No 2), Boland J declined Mr Barataud's application for extension of time to appeal, taking the view that Mr Barataud's attitude to the proceedings before Staff J and to the appeal, militated against such an extension being granted. At [2] to [4] of the judgment we observed: 2 The proceedings before Staff J were brought by Mr Chipperfield pursuant to s 106 of the Industrial Relations Act 1996. The matter proceeded ex parte, Mr Barataud never having filed a notice of appearance or appearing in the proceedings, despite having been served with the originating process. 3 Before Boland J, Mr Barataud's case was that he first became aware of the orders made against him by Staff J on 10 February. Mr Chipperfield's solicitors began pursuing Mr Barataud in relation to the orders made on 16 or 17 February. Some 10 days later, Mr Barataud sought legal advice and the application for extension of time to appeal Staff J's decision was filed on 10 March 2006, outside the 21 day appeal period fixed by s 189 of the Act. 4 Mr Barataud's application raised questions of denial of natural justice, the matter having proceeded ex parte; that he had a bona fide defence to the claim; that he had not been notified of the hearing dates and that there was a jurisdictional question in relation to one aspect of the orders made in relation to a shareholding. 3 The evidence before Boland J showed that there was no question that the originating process commencing the proceedings before Staff J had been served on Mr Barataud, at his then address. This was confirmed by the appellant during the course of the proceedings before us. Despite this, Mr Barataud never entered an appearance, or appeared in, the original proceedings, which were heard ex-parte by Staff J. Rule 76 of the Court's Rules required that Mr Barataud take no step in the proceedings before Staff J, unless he filed originating process or entered an appearance. Mr Barataud never took any step in the proceedings. 4 Notice of various documents and steps taken in the proceedings were served upon Mr Barataud at the same address at which the originating process was served, both by Mr Chipperfield's solicitor and by the Industrial Registrar. Mr Barataud's evidence before Boland J was that he had not received those documents and notices, because he had moved from that address, but had taken no steps to have his mail redirected to him. Mr Barataud did not suggest that he had notified either the Court, or Mr Chipperfield, of his new address. On Mr Barataud's own evidence, it was clear that the hearing before Staff J proceeded ex-parte, as the result of Mr Barataud's own conduct. 5 These were matters which Boland J took into account in refusing Mr Barataud's application to extend time to appeal. Consistently with settled authority, Boland J also took account of the prospects of success of the appeal, if the application for the extension of time were granted. His Honour also noted that there was a jurisdictional point sought to be raised by Mr Barataud, in relation to the two contracts the subject of the orders made by Staff J. His Honour also noted that the factual contest between the parties largely revolved around the question of whose version of various events would be accepted, as to matters in issue in the proceedings. This did not, in his Honour's view, assist Mr Barataud, because leave to appeal would be difficult to achieve in such a case. 6 Having also taken into account the cost and inconvenience flowing to Mr Chipperfield from the grant of the extension sought, Boland J dismissed the application for extension of time. The parties' respective cases

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:

(1) You are required in accordance with Rules 75 to 79 of the Industrial Relations Commission Rules 1996 to file a Notice of Appearance with the Industrial Registrar within 7 days of the service of this Summons on you.

(2) You are required, under the Rules of the Industrial Relations Commission, to file a Reply according to Form 12B of the Rules at the Industrial Registry, 50 Phillip Street, Sydney 2000 telephone 9258 0080 within 28 days of service of this notice on you unless you obtain the consent of the applicant to an extension of such time limit or unless you make an application to the Registrar and such requirement is varied.

(3) If you do not file a Reply the proceedings may be heard in your absence and an order may be made against you.

(4) The parties will be subsequently advised of the date time and place when the Commission will hear this application. Any enquiries should be made to the Industrial Relations Commission List Clerk, telephone 9258 0080. 30 That Mr Barataud did not receive other material, including the notice of hearing served by the Registrar upon him at his last known address, was as the result of steps he had himself taken - namely by moving his residence, not arranging to have his mail forwarded to him and taking no steps to put on a notice of appearance, or to appear in the proceedings, or to notify his change of address. No questions of denial of natural justice, in reality, can arise in such circumstances, even if the respondent was aware of other contact details for Mr Barataud at the relevant times (which we note, in any event, was not established on the evidence). 31 As we noted in Barataud (No 2) at [5] to [8]: 5 Boland J dismissed the application for extension of time. His Honour observed that there was no question that the originating process had been served on Mr Barataud at his then address. Despite this, he never entered an appearance or appeared in the proceedings. Notice of various documents and steps taken in the proceedings were served upon him at that address by the Registry and by Mr Chipperfield's solicitor. Mr Barataud's evidence was that he had not received those documents and notices, because he had moved from that address, but had taken no steps to have his mail redirected to him. There was no suggestion that he had notified the Court, or Mr Chipperfield, of his new address. Mr Barataud's evidence raised various other matters, including that he maintained a post office box of which Mr Chipperfield was aware and that was not used to serve him; that he took no steps in the proceedings because he had reached an agreement with Mr Chipperfield that the proceedings would be discontinued (which was denied); that English was his second language and that he did not understand the legal system. 6 Boland J was sceptical of various aspects of Mr Barataud's evidence, noting that while he had not taken steps in the s 106 proceedings, he had instructed solicitors to initiate proceedings in the District Court against Mr Chipperfield, which were ultimately dismissed for want of prosecution. His Honour also considered the steps taken by Mr Barataud, once he became aware of Staff J's judgment on 10 February. His Honour took the view that Mr Barataud's attitude to the proceedings and the appeal militated against the grant of the extension of time to appeal. 7 Boland J also took account of the prospects of success of the appeal, if the application for time were granted, noting the jurisdictional point raised and the factual contest between the parties, which largely revolved around the question of whose version of events would be accepted as to matters in issue in the proceedings, that of Mr Barataud or that of Mr Chipperfield. This did not, in his Honour's view, assist Mr Barataud, because leave to appeal would be difficult to achieve in such a case. 8 Having also taken into account the cost and inconvenience flowing to Mr Chipperfield from the grant of the extension sought, Boland J dismissed the application. Given the refusal of the application for extension of time, the question of the stay of Staff J's orders was not considered by Boland J. 32 Having now fully heard the parties, we are satisfied that these conclusions were open to Boland J, on the evidence before him. No error in respect of any of them was shown on appeal. Nor were any of his Honour's conclusions attacked on appeal, demonstrated to be such as to lead to the conclusion that this is a case where there is a public interest requiring leave to appeal being granted. 33 The jurisdictional matter now raised relied upon the judgment given by the High Court on 18 May 2006 in Fish. That decision was given after Boland J's refusal to extend time to appeal Staff J's decision. It follows that the decision was not one available to be relied upon before Boland J. 34 In Fish, the High Court was concerned with the proper construction of s 106 of the Act, before its amendment in December 2005, by the insertion of subsection (2A). The Parliament acted after the decision given by the Court of Appeal, from which the appeal in Fish was taken to the High Court. The new subsection was in operation when Staff J came to hear Mr Chipperfield's application. Section 106 then provided:

106 Power of 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.

(2A) A contract that is a related condition or collateral arrangement may be declared void or varied even though it does not relate to the performance by a person of work in an industry, so long as: (a) the contract to which it is related or collateral is a contract whereby the person performs work in an industry, and (b) the performance of work is a significant purpose of the contractual arrangements made by the person. (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.

(6) In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss. 35 The new s 106(2A) was referred to by the High Court in Fish, but its effect not considered. (See [45] and in footnote 69. It was also mentioned, but not dealt with, in Old UGC v Industrial Relations Commission in Court Session (2006) 80 ALJR 1018 (at [31]). 36 Section 106(2A) empowers the Commission to declare void or vary any "related condition" or "collateral arrangement" to a contract whereby a person performs work in an industry, even if the related condition or collateral arrangement does not relate to the performance of work, so long as the performance of work is a significant purpose of the contractual arrangements made by the person. In our view, this latter condition requires a factual assessment of the contractual arrangements, viewed as a whole, to determine whether the performance of work could be described as a significant purpose. In this case, we are satisfied on Mr Barataud's evidence (as discussed below), that it was. 37 Staff J made orders in respect of two contracts between the parties. Firstly, an agency agreement under which Mr Barataud was to perform the work of Mr Chipperfield's agent and manager. His Honour concluded that the evidence showed oppressive exploitation of Mr Chipperfield, permitting Mr Barataud to take commercial advantage of him, so as to permit the conclusion that the agency agreement was harsh and unfair. Similar conclusions were reached in relation to the second agreement under which, his Honour found, Mr Chipperfield had paid $35,000 to Mr Barataud for a shareholding in a company to be formed, it being intended to promote beach soccer as a sport. While Mr Barataud continued to operate the company and had retained all the moneys provided by Mr Chipperfield, no shares had been issued to Mr Chipperfield and no other benefits received. His Honour declared both contracts void. Consequential money orders were also made against Mr Barataud. 38 Mr Barataud did not appear before Staff J to raise the jurisdictional arguments later sought to be advanced before Boland J and pressed on appeal. Given what was advanced before us, it follows that Boland J was correct in concluding that the jurisdictional argument advanced has little prospect of success, given the provisions of s 106(2A). It was conceded on appeal that the agency agreement was one whereby a person performs work in an industry, and therefore within the Court's jurisdiction under s 106. On the affidavit evidence Mr Barataud himself advanced before Boland J, the $35,000 paid by Mr Chipperfield for the shareholding was said to be a sum owing to Mr Barataud under the agency agreement and was made under a separate agreement in order to minimise tax. It follows that on Mr Barataud's own evidence, the two contracts were related, as s 106(2A) contemplated. 39 Staff J took the view that both agreements dealt with were contracts whereby either Mr Barataud and/or Mr Chipperfield were to perform work in any industry. Even if that view were not properly open in relation to the share agreement, given the provisions of s 106(2A) and Mr Barataud's evidence before Boland J as to the basis for the payment made in relation to the shareholding, we are unable to see how the jurisdictional issue raised in this matter could constitute a proper basis for leave to appeal. That evidence plainly demonstrated not only a relationship between the two contracts of the kind dealt with in s 106(2A); it also established the second condition of s 106(2A), namely that a significant purpose of the contractual arrangements (that is, the agency agreement and the shareholding agreement viewed together as a whole) was the performance of work. 40 Furthermore, as the respondent rightly contends, even if leave to appeal were to be granted, Boland J's decision overturned and leave to extend time to appeal Staff J's decision granted, Mr Barataud faces other difficulties, which may not be overlooked at this point. He would still have to seek and be granted leave to appeal the decision given by Staff J. In the circumstances of this case, it is difficult to see that such leave would be granted, given the requirements of s 188 of the Act. It was, after all, Mr Baratraud who permitted the proceedings at first instance to proceed ex-parte. In order to succeed on appeal, even if leave were granted, Mr Barataud would also have to granted leave to adduce evidence on appeal. Such leave would plainly be difficult to obtain, given the provisions of s 191 of the Act, which provides: 191 Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received. 41 These difficulties but confirm us in the conclusions we have otherwise reached. 42 Those conclusions are reinforced by yet a further consideration. Staff J's orders were made on 9 February 2006. The decision was not appealed within the time fixed by s 189, nor were the orders made complied with. The applications for an extension of time to appeal and stay of the decision were filed on 10 March. The applications were dismissed by Boland J on 20 April. The application for leave to appeal and appeal from Boland J's decision and the stay of Staff J's orders, were filed on 10 May and on 19 May, the application for stay was refused by this Full Bench. 43 Even at the hearing of the application for leave to appeal and appeal on 24 July, the orders made by Staff J had not been complied with. As we noted in Barataud (No 2), those orders are protected by s 179 of the Act. Mr Barataud has, nevertheless, proceeded as if, pending consideration of his various applications, those orders have been stayed. The Act does not so provide. 44 A similar situation arose for consideration in Nutshack Franchise Pty Ltd and Others v Smith and Another (1999) 90 IR 355. There the Full Court was dealing with s 106 proceedings where the trial judge had made various orders, including orders in relation to the payment of money. The orders had not been complied with; no stay had been sought and still the unsuccessful appellant sought to challenge the trial judge's orders on appeal. The Full Court took the view that given the provisions of the Act as to the finality of decisions made by the Court, subject to leave to appeal being sought and an appeal granted, or a stay of the orders made being sought and granted, that continued disobedience of the Court's orders at first instance amounted to an abuse of process. 45 Consequently in Nutshack, the application for leave to appeal and appeal were stayed, until further order of the Court. That left open the possibility that the abuse would cease. In that event, the Full Court noted that the abuse would become relevant to a consideration of the appellant's application for leave to appeal (see at 363). 46 The approach of the Full Bench in Nutshack, would suggest that even if the application for extension of time to appeal were to be entertained in this case, the proceedings would most likely be stayed as an abuse of process, while the orders made by Staff J in February, are not complied with. Continued disobedience of these orders involves an abuse of process given the scheme of the Act, which does not assist the application for leave to appeal from Boland J's decision being granted by this Bench. Given the views we have reached on the question of leave, the question of the stay of the proceedings does not, however, require further consideration. 47 We finally observe that Mr Barataud's appeal was argued to raise broad questions of justice. He complained that the effect of the orders made by Staff J were that he is facing bankruptcy and the loss of his livelihood. Whether there is any proper foundation for that complaint is, in reality, unknowable. No evidence to support the complaint has ever been led and it cannot properly sustain the grant of leave to appeal upon a consideration such as ensuring the interests of justice in some broader sense. Orders 48 For those reasons leave to appeal is refused. Mr Barataud is ordered to pay Mr Chipperfield's cost of the proceedings, as agreed or assessed.

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