Toben v Jones

[2009] FCAFC 104

FEDERAL COURT OF AUSTRALIA

Toben v Jones [2009] FCAFC 104

CONTEMPT – appeal from conviction for contempt of court – failure to comply with orders of the Court – failure to comply with undertaking made to the Court – whether original orders should be read as being qualified by s 18D of the Racial Discrimination Act 1975 (Cth), by implications from the Australian Citizenship Act 2007 (Cth), or by a common law right of free speech  – no mandate for reading the original proscriptions as if they were so qualified – whether there was ambiguity in the original orders – no ambiguity in original orders, and further there was no finding of the primary judge which was dependant on any asserted ambiguity – appeal dismissed

CONTEMPT – appeal from punishment imposed for contempt of court – whether punishment of three months imprisonment excessive – whether primary judge was in error in not ordering home detention as a method of serving custodial sentence – purpose of punishment is to vindicate the authority of the Court – obedience to orders of the Court is not optional – sentence imposed not excessive or unwarranted – appeal dismissed

PRACTICE & PROCEDURE – application for leave to add a ground of appeal – ground asserts that primary judge erred in dispensing with service of orders containing the notice required by O 37 r 2(3) of the Federal Court Rules – compliance with rule can be dispensed with where party had notice of an injunction and acted in defiance of orders – appellant had notice of orders made and undertakings given – no utility in granting leave to add ground of appeal – leave refused

Federal Court Rules  - O 37 r 2
Racial Discrimination Act 1975 (Cth) – ss 18C, 18D
Australia Citizenship Act 2007 (Cth)

Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 – applied
Australian Securities Commission v Macleod (1993) 40 FCR 155 – cited
Fullerton v Gardiner (unreported, Sup Ct, NSW, Powell J, No. 2715 of 1977, 31 October 1978) - applied
Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 – applied

GERALD FREDERICK TOBEN v JEREMY JONES

SAD 69 of 2009
SAD 73 of 2009

SPENDER, GRAHAM AND GILMOUR  JJ
13 AUGUST 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 69 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GERALD FREDERICK TOBEN
Appellant

AND: JEREMY JONES
Respondent

JUDGES:	SPENDER, GRAHAM AND GILMOUR  JJ
DATE OF ORDER:	13 AUGUST 2009
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the respondent of the appeal, including reserved costs, to be taxed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD…