D & L Events Pty Ltd v Opetaia [2023] QSC 279

• [3] On 8 March 2023, the applicant commenced this proceeding by the filing of an originating application by which, relevantly, "interim relief" was sought in the form of an injunction restraining the respondent until trial or further order from acting upon the notice of termination, treating the boxer promotion agreement as having come to an end or retaining the services of any other boxing promoter. Final relief was also sought in the form of a declaration that the notice of termination was of no force or

effect and that the boxer promotion agreement remains on foot, together with an order that the agreement be specifically performed and carried into effect.

• [4] After hearing the application on 17 March 2023, I refused to grant the interlocutory injunction that had been sought but made several directions regarding the future conduct of the proceeding. Subsequently, the case has progressed to the point where it has been set down for trial for five days commencing on 29 April 2024.

• [5] What follows are my reasons for refusing the application for interlocutory relief.

• [6] An applicant for an interlocutory injunction must show, first, that there is a serious question to be tried or that a prima facie case is made out in the sense that, if the evidence remains as it is, there is a probability that at the trial of the proceeding the applicant will be entitled to relief; and, second, that the balance of convenience favours the grant of an injunction.1 Any assessment of the balance of convenience requires the court to consider whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted2 and, as such, will turn on questions regarding the adequacy of an award of damages, the availability and sufficiency of the usual undertaking as to damages and the risk of irreparable injury to a party if the injunction is granted or refused.3
• [7] That explained, prior to the coming into being of the boxer promotion agreement on 25 August 2019, the applicant entered into a broadcasting rights contract with Fox Sports in Australia to provide content for lineal and pay-per-view broadcasts. Lineal broadcasts form part of a customer's Foxtel or Kayo subscription, whereas pay-per- view broadcasts require a specific purchase by a customer on, for example, the Main Event platform operated by Fox Sports. The broadcasting rights contract was entered into on 1 July 2019 but it came to an end on 31 December 2022 and was not renewed.

• [8] The boxer promotion agreement between the parties consists of a number of "Key Terms" as well as "General Terms" and was specified to be for a term of three years (to 30 June 2022). It was further provided that the agreement would "automatically renew" for a further term of two years (to 30 June 2024) subject to the applicant "having met all its material obligations under [the] agreement through to the date of such renewal": Key Terms; cl. 2.

• [9] According to the relevant correspondence from his solicitors, the respondent purported to terminate the boxer promotion agreement because the agreement had been entered into by him "on the basis that [the applicant] held broadcasting rights with Foxtel and Main Event" but, as it happened, those rights were lost on 31 December 2022. It was put that there was an implied term of the boxer promotion agreement to the effect that the applicant "had and would maintain broadcasting rights with Foxtel and Main Event or have equivalent broadcasting rights" and asserted that the applicant had "no equivalent broadcasting rights in Australia". It was then alleged that the applicant was in breach of that implied term and was otherwise incapable of performing what was contended to be such a fundamental term of the agreement that

1 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622-623; Australian

Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 68, 81-82.

3 Active Leisure (Sports) Pty Ltd v Sportsman's Australia Limited [1991] 1 Qd R 301, 311, 313.

the respondent was entitled to terminate. It was also put in the alternative that this alleged "failure to secure equivalent broadcasting rights in Australia" meant that the applicant had either repudiated the agreement or the agreement was frustrated and at an end because its evident "commercial purpose" could not be fulfilled.

• [10] When rejecting the purported termination in their response on the same day, the applicant's solicitors said that there was "no requirement" of the applicant under the boxer promotion agreement to "maintain ongoing broadcasting rights with Foxtel and Main Event" and referred in that regard to an entire agreement provision in the General Terms (cl. 24.5). They called on the respondent to "withdraw the purported termination" by the next day (21 February 2023) failing which, they advised, the court would be approached for "injunctive and other equitable relief" pursuant to an entitlement which was said to primarily arise under cl. 22.1 of the General Terms.

• [11] The respondent did not withdraw the purported termination. To the contrary, on 21 February 2023 his manager forwarded an email to representatives of the IBF advising that the boxer promotion agreement had been "terminated effective immediately" and requesting the IBF to cease all communications with the applicant. On the same day, the IBF received an email from Mr Lonergan indicating that the respondent was still a party to the boxer promotion agreement with the applicant and that it had "another 18 months to run".

• [12] In response to these email communications, the president of the IBF, Mr Peoples, forwarded an email to the respondent's manager on 28 February 2023 in which he referred to parts of the IBF governing rules to the effect that, where a boxer is "under a legal impediment which could prevent the bout from taking place", the boxer "shall be considered unavailable". Mr Peoples then stated that "if the contractual dispute between [the applicant] and [the respondent's manager] is not resolved, [the respondent] will be considered unavailable under this rule". In that event, he advised, the "Championships Committee and Board of Directors [of the IBF would] consider withdrawing recognition of the title".

• [13] It is necessary to say something about cl. 22.1 of the General Terms, the contractual provision referred to by the solicitors for the applicant in their correspondence of 20 February 2023. It is devoted to the topic of "Injunctive Relief" and is in these terms:

"The [respondent] acknowledges and agrees that the obligations to be performed by him and the rights granted to [the applicant] under this Agreement are of a special, unique, unusual and extraordinary character, giving them peculiar value, the loss of which cannot be reasonably or adequately compensated by damages in an action at law and could cause [the applicant] irreparable damage and injury. The [respondent], therefore, agrees that, upon the finding of a court of competent jurisdiction that such relief is appropriate, the applicant will be entitled to injunctive and other equitable relief to prevent any breach or default under this Agreement, which will be in addition to and without prejudice to any other rights or remedies the applicant may have in such event."

• [14] On the hearing of the application, senior counsel for the applicant rightly conceded that the second sentence of cl. 22.1 is entirely circular and, for that reason, of no moment. It records nothing more than that, if a court decides that an injunction or other equitable relief is appropriate, there should be grant of that relief. Reliance was

however placed on the first sentence, reflecting as it does an acknowledgement by the parties that the agreement is so "special, unique, unusual and extraordinary" in character as to give the rights conferred on the applicant "peculiar value" that cannot be adequately compensated by an award of damages. In this regard, it was submitted on behalf of the respondent that any such acknowledgement was void as against public policy and for that reason could not be enforced. This, it was said, was because the acknowledgement represents an attempt to oust the jurisdiction of the court. Relying on decisions such as Dobbs v National Bank of Australia Ltd4 and Bateman Project Engineering Pty Ltd v Resolute Ltd,5 the respondent contended that the first sentence of cl. 22.1 imposed a "substantial fetter on the ability of a party to resort to the jurisdiction of a court in relation to an interlocutory injunction". But that cannot be right. Although it is well settled that a contract is against public policy to the extent that it operates as an ouster of the jurisdiction of the court to enforce the rights of a party under it,6 the acknowledgement here does not do that. To the contrary, it facilitates recourse to the courts for relief where appropriate; it does not affect the enforcement of any of the contractual rights conveyed by the boxer promotion agreement.7 Of course, if it is read as putting the adequacy or otherwise of damages as a remedy out of reach of the court as a discretionary consideration when assessing the balance of convenience, it would almost certainly fall foul of the principle underlying the decisions on which the respondent relied but, on a proper construction of the relevant sentence in the context of the agreement as a whole, it does no more than record the views which the parties to the agreement expressed on that topic at the time when the agreement was entered into. In that way, it is facilitative, and not restrictive. To the point, it does not preclude a court from forming its own view having regard, particularly, to events that occurred subsequently. The joint view of the parties as recorded in the agreement are relevant, and must be weighed in the balance, but they are not decisive on the question whether damages are an adequate remedy.

• [15] In support of its argument that there was a serious question to be tried, the applicant submitted that there was no room in the boxer promotion agreement for the implication of a term of the kind alleged by the respondent because, having regard to the principles espoused in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council,8 such a term would contradict express terms of the agreement and would not otherwise be necessary to give business efficacy to the contract. Further, it was submitted that, on the evidence, it could not be concluded that the agreement had been repudiated by the applicant nor, indeed, that it had become frustrated. The respondent countered, also by reference to particular provisions of the agreement as well as the evidence. In addition, the respondent foreshadowed a representations claim to the effect that the applicant has engaged in misleading or deceptive conduct contrary to the Australian Consumer Law. Like the respondent's case for the implication of a fundamental term, this was said to arise from statements allegedly made by Mr Lonergan at the time when the agreement was entered into regarding, relevantly, the security of the broadcasting rights contract.

• [16] These are all matters to be determined at trial, with respectable arguments advanced on both sides at the hearing. However, it was unnecessary to decide whether the

4 [1935] HCA 49; (1935) 53 CLR 643, 652-653.

5 [2000] WASC 284, [21].

6 Novamaze Pty Ltd v Cut Price Deli Pty Ltd (1995) 128 ALR 540, 548-589.

7 See Anderson v G H Mitchell & Sons Ltd [1941] HCA 30; (1941) 65 CLR 543, 549.

applicant's case was such as to amount to a serious question to be tried in the sense earlier explained (at [6]) because I was not persuaded that the balance of convenience favoured the making of an interlocutory injunction.

• [17] In the first place, the relief sought by the applicant was tantamount (if not actually) an order to enforce the performance of a contract of personal services until trial. Although there is no rule against the grant of relief in such cases,9 in any case where such an order (if made) will likely require continued superintendence by the court, that will be a strong factor tending against the grant of relief.10 This was such a case.
• [18] Second, if an injunction were granted, there was to my mind a real risk that the respondent's career might be adversely and irreparably affected, and in a substantial way. That risk arose not merely because of the attitude taken by the IBF when notified of the dispute, but also because of the entrenched nature of the impasse reached between the parties. Even in the short term, an order restraining the respondent from acting upon the notice of termination, treating the boxer promotion agreement as having come to an end or retaining the services of any other boxing promoter might not only compromise his capacity to maximise the commercial return on his defence of his title, it might also result in the loss of the title itself without any defence. Put another way, the risk of irreparable injury to the respondent if the injunction was granted far outweighed the loss that might be occasioned to the applicant if the agreement was not enforced.

• [19] On the other hand, even giving full weight to the acknowledgement in the first sentence of cl 22.1 of the boxer promotion agreement, when regard was had to the nature of the loss that might be occasioned to the applicant if relief was refused, damages would be an adequate remedy were the applicant to succeed at trial. On this point, the applicant argued that damages would be "impossible to calculate" but whilst such an exercise might be difficult, or even complex, I could not accept in the circumstances postulated before me that the calculation would be impossible. Nor could I accept the further proposition that damages would be an inadequate remedy because of "reputational damage" to the applicant if an injunction were not granted. On no reasonable view could the refusal of an injunction be productive of "damage" of that kind.

• [20] It follows that, although the parties acknowledged and agreed on 25 August 2019 that the agreement was so "special, unique, unusual and extraordinary" in character as to give the rights conferred on the applicant "peculiar value", the loss of which could not be reasonably or adequately compensated by an award of damages, I reached the opposite conclusion when considering the same question. That should be unsurprising given the passage of time (almost four years) and the events that occurred after the agreement came into being which, rightly or wrongly, led to a complete breakdown in the relationship between the parties to what was, at its heart, a contract for personal services.

• [21] The application for interlocutory relief was accordingly refused.

9 J C Williamson Ltd v Lukey [1931] HCA 15; (1931) 45 CLR 282, 298.

1. Ibid, 297-298. And see Zintix (Australia) Pty Ltd v Employsure Pty Ltd [2018] NSWSC 924, [110], [117].