Damages
110 If Mr Tszyu had boxed professionally in bouts promoted or co-promoted by Fightvision for the period of two years from 17 January 1995, Fightvision would have made profits. As earlier noted, it would have received income from gate money, from payments for direct broadcasting, for pay to view television transmission, and probably in other ways. It would have incurred expenses. The lost profits, the measure of Fightvision's damages, depended on what fights would have been promoted or co-promoted by Fightvision, what income would have been received from or because of those fights, and what expenses would have been incurred in earning the income.
111 As Bainton J observed, the assessment of the lost profits involved a great deal of estimation; as he later observed, the damages could not be calculated with any precision. Nonetheless the assessment had to be made. Mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can: Fink v Fink (1946) 74 CLR 127 at 143; McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 at 411-2; The Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64 at 83, 102, 125-6.
112 We have described how evidence going to the calculation of damages was given by Mr Mordey and Mr Sugar. Mr Mordey was accepted by his Honour as an experienced boxing promoter, an expert in the field, and his Honour's opinion that Mr Mordey gave his evidence carefully and accurately and without exaggeration must have extended to his evidence material to damages. As earlier noted, Mr Sugar was a journalist, not a boxing promoter, but his Honour recorded the impression "that if there was anything he had never known, or had forgotten, about boxing in the USA it was trivial and of no importance." Apart from the evidence of Messrs Mordey and Sugar, in relation to damages his Honour drew upon the offer made to Mr Mordey by Mr Duva for fights by Mr Tszyu in 1995; on the offer to Fightvision by Premier Sports for television rights to the next four fights of Mr Tszyu; on the evidence of the fights of Mr Tszyu promoted by Fightvision in the three years to the end of January 1995 and their profitability; and on the evidence of the fights of Mr Tszyu after January 1995 and their profitability.
113 Mr Mordey believed that Mr Tszyu would have become world title holder and would have defended that position during the two year period. Mr Tszyu was seen as of world title holder calibre by others at the time. We repeat in part what has earlier been recounted. In brief, according to Mr Mordey, under Fightvision's promotion or co-promotion Mr Tszyu would have participated in three fights in Australia and three or four fights in the USA over the period, six or seven fights in all and less than the fourteen fights in the period to the end of January 1995. Flexibility in the number and place of the fights was acknowledged, and in a manner which was not entirely clear the four fights in the USA ultimately became three fights. Bainton J commented that these estimates seemed conservative, particularly when Mr Duva's offer assumed that Mr Tszyu would fight three bouts in 1995 out of Australia and possibly a fourth in Australia. Mr Sugar said nothing of the three Australian fights. Also in brief, Mr Sugar considered that the fights in the USA would not have come about because Mr Mordey would not have been able to arrange them and it was unlikely that Mr Tszyu would win all of them or escape injury.
114 As to the profits from the Australian fights, we have said that Mr Mordey gave an estimate of income and expenditure leading to a profit for Fightvision of $389,400 per fight. Mr Tszyu in fact participated in three fights in Australia during the two year period, in June 1995, January 1996 and May 1996. The profits earned were much less than $389,400 per fight, but there was evidence that the fights were held at the wrong venues and not properly promoted.
115 As to the profits from the fights in the USA, which Mr Mordey said would have been co-promoted, we have said that Mr Mordey also gave an estimate of income and expenditure leading to a profit for Fightvision per fight of $US2,102,500. The estimates of income and expenditure for the Australian fights included the Premier Sports payments for television rights, under which Fightvision would get $50,000 per fight a minimum of $350,000 per fight for the Australian rights and an additional $US100,000 for the international rights: there was a possibility of a higher payment if the audience was great. The estimates of income and expenditure for the fights in the USA excluded the Premier Sports payments.
116 Bainton J's assessment of damages took up the three elements of the Premier Sports payments in respect of the fights in the USA, profits for Australian fights (which included the Premier Sports payments), and profits for fights in the USA.
117 The three Australian fights, and the Premier Sports payments of $350,000 in respect of four fights, do not seem to have been contentious. They were not questioned in this appeal.
118 As to the fights in the USA, his Honour said -
"I can seen no reason to assume that the first of the fights assumed by Mordey would not have been arranged. Tszyu was fit and well and I am sure would have welcomed the challenge. Mordey's calculation for that is
(a) Australia TV rights AUD350,000
(b) US profit USD2,000,000 at a conversion rate of AUD1 = USD.75 or AUD2,666,666 (which really ignores the present substantial drop in the value of the Australian dollar)
The probabilities in respect of the remaining two must depend, inter alia, on the results of the first of those assumed bouts. I do however have the advantage of knowing that Tszyu was apparently fit and well in 1997, when this matter was heard, because he was in court on many occasions and in the witness box for some hours. My conclusion is that it is more probable than not that Tszyu would have fought at least four fights in the two year period, and that Fightvision's earnings for them would have been in the order of those estimated by Mordey. I also assume for the purposes of this damages calculation that two of these fights would have been in Australia and two in the USA."
119 Bainton J awarded damages against Mr Tszyu of $6,812,133 calculated in the manner earlier set out on the basis of two fights in Australia and two in the USA.
120 It will be seen that his Honour took four fights rather than six (or seven) in the two year period, two in Australia and two in the USA; adopted Mr Mordey's estimate of profits from the Australian fights; adopted Mr Mordey's estimate of profits from the fights in the USA but with a rounding down from $US2,102,500 to $US2,000,000; and accepted that there would have been the minimum payments of $350,000 by Premier Sports in relation to the four fights but did not take up the $50,000 per fight and the payments of $100,000 for international rights.
121 Mr Tszyu and the third parties said that his Honour had not adequately considered the evidence and explained the reasons for his decision, and in particular had "ignored and failed to take into account the expert evidence of Mr Sugar"; they said that his Honour had "failed to take into account adverse vicissitudes and factors and to properly discount any damages assessed to reflect same and to reflect the fact that what was lost was the chance of profits". So, it was said, his Honour had arrived at an excessive assessment. It was not suggested that no damages were payable if liability had been established.
122 The challenges to the assessment of damages went into some detail in relation to the fights which Fightvision might have promoted or co-promoted and the profits which might have been gained from the fights in Australia and the USA. As we have indicated, no issue was taken with the three Australian fights or with the Premier Sports payments.
123 To take up what has already been referred to, Mr Mordey anticipated that the three fights in Australia would be followed by three fights in the USA against Chavez, then WBC junior welterweight champion, Randall, the former WBA junior welterweight champion, and de la Hoya, described as the "golden boy" of American boxing. This would be followed by a fight against Whitaker, the WBC welterweight champion. The fights in the USA would be co-promoted. Chavez and Randall were promoted by Mr King, and de la Hoya was promoted by Mr Bob Arum. Whitaker was promoted by Mr Duva. Here in particular it was submitted that his Honour had paid insufficient regard to Mr Sugar's evidence.
124 What his Honour said, after stating his impression of Mr Sugar, was -
"His view was that Mordey's four USA fights proposal could not be effected, first because he would not be able to arrange them, secondly because Tszyu was unlikely to win all of them and come through uninjured and thirdly because such a programme would be injurious to Tszyu's health and wellbeing, therefore, his future potential. Non constat however that three fights in the USA would have had that effect on Tszyu."
125 Mr Sugar had said that the programme of fights was "not only optimistic and hopeful but totally unrealistic", because it presupposed that there could be suitable and timely arrangements with three different co-promoters, that Mr Tszyu would win all the fights, and that Mr Tszyu would not be injured in any of the fights. He had described an intricate world of television ties, desired option conditions, and tactical manoeuvring for easy fights or highly paying fights, which he considered made bouts against the four named boxers unlikely, particularly because the interests of Messrs King, Arum and Duva would not be conducive to the proposed programme of fights and they would not be willing to share 50/50, and he had pointed out that a loss or an injury in one of the fights would throw the programme into confusion. According to the submission, what Mr Sugar had said (of which the foregoing is itself only a summary) was inadequately summarised and too lightly dismissed in the passage from his Honour's reasons just set out.
126 As to the profits from the fights in the USA, Mr Sugar considered that it was unlikely that Fightvision would negotiate equal sharing with any of Messrs King, Arum and Duva. Indeed, he considered that the fights against Chavez, Randall, and de la Hoya would be likely to be undercards to major heavyweight fights or other fights, with a set fee to Fightvision. Even if a share of profits could be negotiated, Mr Sugar thought the gate receipts estimated by Mr Mordey were unrealistic, both in the anticipated attendances and in failure to allow for complimentary tickets; that the estimated income from mat sponsorship and international television rights was unrealistic; and that there had been a double counting in Mr Mordey's figures in his inclusion of half the site fee payable by the owner of the venue. None of these matters, it was said, was referred to by his Honour. It was not said, but no doubt could have been, that the reduction from $US2,102,500 to $US2,000,000 was an inadequate allowance for the doubt cast by Mr Sugar on Mr Mordey's estimate.
127 As to the profits from the Australian fights, it was said that Mr Mordey's estimate assumed capacity crowds and did not allow for complimentary tickets; that the estimated gate receipts were higher than had been achieved even in major fights in Australia to that time; that promotion expenses were underestimated; and that the experience of the fights in which Mr Tszyu had participated in 1995-1996 pointed to much smaller profits. Acknowledging Mr Mordey's evidence attributing the poor profits in fact achieved in 1995-1996 to wrong venues and poor promotion, and that Mr Mordey was a more experienced promoter than the promoters of the fights in those years, it was nonetheless said that Mr Mordey's estimated profits of $389,400 per fight should not have been accepted.
128 Further, it was said that so far as his Honour had taken into account a favourable trend in Mr Tszyu's reputation and the profitability of his fights over the three years to the end of January 1995, his Honour had overlooked corrections made by Mr Mordey to the historical profit figures, some upwards and some downwards, but in particular with a significant loss in the penultimate fight in August 1994 and a reduced overall profit for the three year period. We have set out the correct profit and loss figures earlier in these reasons. His Honour had set out profit and loss figures for the thirteen fights to 17 January 1995, described as the initial three year period, and the fight in late January 1995, and had said:
"Promotions'/Fightvision's profits in the initial three year period total AUD251,043 and their losses $187,854, an overall profit of $63,189, but what is more significant than that overall figure is the increasing profits and the decreasing loss during the period, particularly in year three. The profit of AUD140,000 from the first ex Australia fight in 1995 is an exemplification of that tendency towards an increase. … Again, however Tszyu's purses were increasing, a consequence I would assume, of his rising reputation, so that Fightvision's profits are likely to have increased for the same reason."