Foster v Australian Competition and Consumer Commission - [2014] FCA 240

FEDERAL COURT OF AUSTRALIA
Foster v Australian Competition and Consumer Commission [2014] FCA 240

Citation: Foster v Australian Competition and Consumer Commission [2014] FCA 240

Parties: PETER CLARENCE FOSTER v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION, BRADDON RALPH WEBB, ORLAWOOD PTY LTD ACN 059 294 334, SEAN PETRIE ALLEN COUSINS, CONSTANTINE XENOUDAKIS, KEVIN ANTHONY MCMULLAN, ALAN KENNETH COOPER, STEPHEN D'ALTON and CHASTE CORPORATION PTY LTD

File number: QUD 733 of 2013

Judge: DOWSETT J

Date of judgment: 18 March 2014

Catchwords:
PRACTICE AND PROCEDURE – contempt of court – where appellant found guilty of contempt – where appellant appeals sentence – where appellant has not purged contempt – where appellant has further failed to appear – whether a right to invoke appellant process –whether a discretion to stay or dismiss – whether discretion should be exercised – whether stay or dismissal appropriate.

HIGH COURT AND FEDERAL COURT – Federal Court of Australia – jurisdiction – whether Court can compel personal appearance of appellant – whether s 78 Judiciary Act 1903 (Cth) excludes inherent power.

CONTEMPT OF COURT – Federal Court of Australia – jurisdiction – whether contempt proceedings in civil or criminal jurisdiction.

Legislation:
Family Law Act 1975 (Cth) s 35
Federal Court of Australia Act 1976 (Cth) ss 4, 20, 24(1C), 25, 25(1AA), 25(2), 25(2B), 25(2B)(ab), 25(2B)(ba), 25(2B)(bb), 30AA, 30AE, 30AE(2), 30AE(3), 30AE(4), 30AE(4)(c), 30AE(4)(d), 30AE(4)(f), 31, 37P(2), 37P(5)
Federal Court Rules 2011 rr 36.74(1), 42.11, 42.12, 42.13, 42.14
Judiciary Act1903 (Cth) ss 24, 78

Cases cited: A v Z (2006) 198 FLR 152 cited
Astro Exito Navegacion S.A. v Southland Enterprise Co Ltd(The Messiniaki Tolmi) [1981] 2 Lloyd’s Rep 595 cited
Attorney-General v Times NewspapersLtd [1974] AC 273 cited
Australian Competition and Consumer Commission v Chaste CorporationPty Ltd & Others [2005] FCA 1212 cited
Australian Securities Commission v Macleod (unreported, Drummond J, 23 November 1994) cited
Burnett v Burnett (1903) 3 SR (NSW) 513 considered
Fraser v The Queen (1984) 3 NSWLR 212 cited
Gordon v Gordon [1904] P 163 cited
Hadkinson v Hadkinson [1952] P 285 followed
Molinaro v New Jersey 396 US 365 (1970) cited
Permewan Wright Consolidated Pty Ltd v Attorney‑General (1978) 35 NSWLR 365 considered
Perry v State of Mississippi 13 So.3d 627 (Miss. App. 2013) cited
O’Connor v Zentai [2011] FCA 1162 cited
Re Colina & Anor; ex parte Torney (1999) 200 CLR 386 considered
Re Perkins; Mesto v Galpin [1998] 4 VR 505 cited
Short v Short (1973) 7 SASR 1 cited
Smith v United States 94 US 97 (1876) cited
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 considered
X Limited v Morgan‑Grampian (Publishers) Ltd [1991] 1 AC 1 discussed
Young v Jackman (1986) 7 NSWLR 97 cited

Date of hearing: 13 December 2013

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 56

Counsel for the Appellant: Mr D O'Gorman SC

Solicitor for the Appellant:
Fisher Dore Lawyers

Counsel for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCA 240
Decision Date

CaseChat Overview and Summary

In Foster v Australian Competition and Consumer Commission, Dowsett J considered the implications of an appellant's contempt of court on his right to appeal. Peter Foster was a respondent in proceedings in which Lander J made certain orders on 2 September 2005, including a prohibition against him being involved in the promotion or conduct of businesses relating to weight loss, cosmetic or health industry products or services. In 2011 the Australian Competition and Consumer Commission (ACCC) applied for an order that Foster be arrested and brought before the Court, which was made on 11 November 2011. On 27 September 2013, Logan J made an order that Foster attend and surrender himself into the custody of the Court, which Foster did not do. He instead sent a letter to Logan J, apologising for his non-appearance and explaining that he had not been given enough time to prepare himself and his family for the decision. Logan J found Foster in contempt of the orders made on 2 September 2005 and sentenced him to three years' imprisonment, with the first 18 months to be served in any event. Foster appealed against the sentence, alleging that it was manifestly excessive. ACCC applied for the appeal to be stayed and/or dismissed for want of prosecution, arguing that Foster's contempt of the order made on 26 September 2013 constituted a bar to him prosecuting his appeal. Foster argued that the contempt proceedings had not been properly instituted, that there had been no finding that he was guilty of any contempt as a result of his response to the order made on 26 September 2013, and that any contempt occurred in proceedings other than the appellate proceedings. Dowsett J considered the authorities on the matter, and concluded that, even if Foster's appeal was in the same proceedings as those in which the contempt occurred, he was in contempt of the order made on 26 September 2013. He held that the appeal should be stayed until Foster surrendered himself into custody. He also held that Foster's appeal should be dismissed for want of prosecution if he did not surrender himself into custody by a certain date.

Orders