Foster v Australian Competition and Consumer Commission

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.