FEDERAL COURT OF AUSTRALIA
Foster v Australian Competition and Consumer Commission [2012] FCA 953
Citation: Foster v Australian Competition and Consumer Commission [2012] FCA 953 Appeal from: Australian Competition and Consumer Commission v Sensaslim Australia Pty Ltd (In Liquidation) (No 3) [2012] FCA 939 Parties: PETER CLARENCE FOSTER v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION, PETER LESLIE O’BRIEN, ADAM TROY ADAMS, MICHAEL ANTHONY BOYLE and SENSASLIM AUSTRALIA PTY LTD (IN LIQUIDATION) File number: NSD 1286 of 2012 Judge: PERRAM J Date of judgment: 2 September 2012 Catchwords: APPEAL AND NEW TRIAL – Application for leave to appeal – whether decision of primary judge attended by sufficient doubt – whether principle in Dietrich v The Queen (1992) 177 CLR 292 extends to civil penalty proceedings Legislation: Crimes Act 1900 (NSW) s 475 Cases cited: Australian Securities and Investments Commission v Reid (No 1) (2006) 151 FCR 540 cited
Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 appliedDecor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Dietrich v The Queen (1992) 177 CLR 292 distinguished
New South Wales v Canellis (1994) 181 CLR 309 followed
Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 followedDate of hearing: 2 September 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Solicitor for the Applicant: L Johnson of Leigh Johnson Lawyers Counsel for the Respondent: T Brennan Solicitor for the Respondent: Corrs Chambers Westgarth
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1286 of 2012
BETWEEN: PETER CLARENCE FOSTER
ApplicantAND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First RespondentPETER LESLIE O’BRIEN
Second RespondentADAM TROY ADAMS
Third RespondentMICHAEL ANTHONY BOYLE
Fourth RespondentSENSASLIM AUSTRALIA PTY LTD (IN LIQUIDATION)
Fifth Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
2 SEPTEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The first respondent be granted leave to file in Court a notice of address for service.
2.The application for leave to appeal be dismissed.
3.The applications for interim relief be dismissed.
4.The applicant pay the costs of the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1286 of 2012
BETWEEN: PETER CLARENCE FOSTER
ApplicantAND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First RespondentPETER LESLIE O’BRIEN
Second RespondentADAM TROY ADAMS
Third RespondentMICHAEL ANTHONY BOYLE
Fourth RespondentSENSASLIM AUSTRALIA PTY LTD (IN LIQUIDATION)
Fifth Respondent
JUDGE:
PERRAM J
DATE:
2 SEPTEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
There is scheduled to begin at 10:15 tomorrow morning in Brisbane a trial of proceedings in this Court entitled Australian Competition and Consumer Commission v Sensaslim Australia Pty Ltd (In Liquidation). The second respondent to those proceedings is Mr Peter Clarence Foster. On 24 August 2012 Mr Foster applied by interlocutory application to the docket judge responsible for the hearing of those proceedings,…
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- Case
- [2012] FCA 953
- Decision Date
CaseChat Overview and Summary
The Court considered the principle in Dietrich v The Queen, which pertains to the right to appeal in criminal cases, and examined whether this principle could be applied to civil penalty proceedings. The Court noted that the primary judge's decision was a finding of fact, not a mixed question of law and fact, and that the principle in Dietrich did not extend to such proceedings. The Court held that the primary judge's decision was not attended by sufficient doubt, and therefore, the application for leave to appeal was dismissed. The Court also dismissed the applications for interim relief and ordered the applicant to pay the costs of the first respondent.
The Court's decision was grounded in the distinction between criminal and civil penalty proceedings, and the applicability of the Dietrich principle. The Court found that the primary judge's decision was a finding of fact, and that the principle in Dietrich did not extend to such proceedings. The Court held that the application for leave to appeal was not successful and that the applicant should pay the costs of the first respondent. The Court dismissed the applications for interim relief and granted the first respondent leave to file a notice of address for service.
Orders
Orders of the court
1. The first respondent be granted leave to file in Court a notice of address for service.
2. The application for leave to appeal be dismissed.
3. The applications for interim relief be dismissed.
4. The applicant pay the costs of the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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