Foster v Australian Competition and Consumer Commission

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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 applied

Decor 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 followed

Date 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
Applicant

AND:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First Respondent

PETER LESLIE O’BRIEN
Second Respondent

ADAM TROY ADAMS
Third Respondent

MICHAEL ANTHONY BOYLE
Fourth Respondent

SENSASLIM 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
Applicant

AND:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First Respondent

PETER LESLIE O’BRIEN
Second Respondent

ADAM TROY ADAMS
Third Respondent

MICHAEL ANTHONY BOYLE
Fourth Respondent

SENSASLIM AUSTRALIA PTY LTD (IN LIQUIDATION)
Fifth Respondent

JUDGE:

PERRAM J

DATE:

2 SEPTEMBER 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. 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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Details
Case
[2012] FCA 953
Decision Date

CaseChat Overview and Summary

In the Federal Court, Foster sought leave to appeal against a decision of the primary judge, contending that the judgment was attended by sufficient doubt to justify an appeal. The case involved civil penalty proceedings brought by the Australian Competition and Consumer Commission against Foster. The Commission alleged breaches of consumer protection laws, and the primary judge found in favour of the Commission. The issues before the Court were whether the primary judge's decision was attended by sufficient doubt to warrant an appeal and if the principle in Dietrich v The Queen extended to civil penalty proceedings.

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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