Yates v Australian Competition and Consumer Commission

[2006] FCA 1058

FEDERAL COURT OF AUSTRALIA

Yates v Australian Competition & Consumer Commission [2006] FCA 1058

NICHOLAS YATES v AUSTRALIAN COMPETITION & CONSUMER COMMISSION
NSD 573 OF 2006

NICHOLAS RHODIN v AUSTRALIAN COMPETITION & CONSUMER COMMISSION
NSD 574 OF 2006

JACOBSON J
8 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 573 OF 2006

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NICHOLAS YATES Appellant
AND:	AUSTRALIAN COMPETITION & CONSUMER COMMISSION Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	8 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed pursuant to section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2.The appellant pay the respondent’s costs of the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 574 OF 2006

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NICHOLAS RHODIN Appellant
AND:	AUSTRALIAN COMPETITION & CONSUMER COMMISSION Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	8 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed pursuant to section 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth).

2.The appellant pay the respondent’s costs of the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 573 OF 2006
NSD 574 OF 2006

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

NSD 573 OF 2006
BETWEEN:	NICHOLAS YATES Appellant
AND:	AUSTRALIAN COMPETITION & CONSUMER COMMISSION Respondent

NSD 574 OF 2006
BETWEEN:	NICHOLAS RHODIN Appellant
AND:	AUSTRALIAN COMPETITION & CONSUMER COMMISSION Respondent

JUDGE:	JACOBSON J
DATE:	8 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These two appeals were listed for hearing for four days on 14 to 17 August 2006. The appeals were listed for hearing at a callover on 27 April 2006. On 15 May 2006 a Registrar of the Court directed the appellants to file and serve their appeal books by 15 June 2006. They have not done so and it is essentially for that reason that the ACCC, which is the respondent to both of the appeals, moves for orders that the appeals be dismissed. Reliance is placed upon s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth). The proceedings involve serious allegations of breach of the provisions of Part V of the Trade Practices Act 1974 (Cth).

2. Gyles J found at first instance that the charges were made good against companies which had employed both of the appellants. Mr Yates was a principal of the businesses and a director of the companies. Mr Rhodin was an employee of the companies. Gyles J found that both Mr Yates and Mr Rhodin were liable as accessories in the contraventions of the Trade Practices Act by virtue of the provisions of s 75B of the Act and in accordance with the principles stated by the High Court in Yorke v Lucas (1985) 158 CLR 661.

3. In view of the fact that the appellants did not print the appeal books in accordance with the Registrar’s directions, I listed the matter for directions last Thursday 3 August 2006.  Mr Rhodin appeared but Mr Yates did not.  On 3 August 2006 the ACCC filed notices of motion in each of the appeals, seeking orders that the appeals be dismissed.  They did so in accordance with leave which I granted on that day, the motions being made returnable before me this morning.  The motions are supported by affidavits of Mr HS Martin, a solicitor for the ACCC.  The affidavits were sworn on 2 August 2006 and 7 August 2006.

4. The affidavit evidence discloses that there was correspondence between the solicitors for the ACCC and the solicitors who formerly acted for Mr Yates, during the months following the date of the Registar’s order.  The correspondence dealt with the preparation of the appeal books and eventually the failure of the appellants to prepare those appeal books.  The evidence discloses that on 19 July 2006 the solicitors formerly acting for Mr Yates ceased to act on his behalf.  Mr Martin’s evidence satisfies me that efforts have been made to serve Mr Yates with the notice of motion seeking dismissal of the proceedings.

5. The attempts to serve Mr Yates were made at a number of addresses, all of them being addresses which had at one time been given by Mr Yates as his address or his address for service in the proceedings.  One of the addresses was the address to which his former solicitors sent the notice of ceasing to act.  The evidence shows that that notice was sent to Mr Yates at an email address and an attempt was made to give Mr Yates notice of today’s hearing by sending an email to that email address.  The affidavit evidence establishes that the attempt to send that email failed, the email apparently having not been received at the address.  There is further evidence which shows Mr Yates’ attempt to distance himself from these proceedings.

6. I have before me an extract of a company search which shows that on 7 July 2006, that is to say shortly before the date of the proposed hearing of the appeals and well after the date of the judgments of Gyles J, Mr Yates ceased to be a director of each of the principal companies involved in the contraventions of the Trade Practices Act. As I have said, Mr Yates failed to appear at the directions hearing last week and he failed to attend this morning. I am satisfied on the evidence that he ought to have been aware of today’s hearing.

7. By contrast with Mr Yates’s position, Mr Rhodin has adopted a proper and courteous response to the directions of the court.  He was present last Thursday and has attended again this morning.

8. He told me from the bar table that he was relying on either Mr Yates or his previous employers to bear the costs of printing the appeal books. He was also relying upon them to conduct the appeals. He said that as a mere employee of those companies he could not afford the substantial cost of printing the appeal books or conducting the appeals. He has told me that he wishes to withdraw his appeals because he is unable to afford the cost of preparing and running them. I have power under s 25(2B)(bb) to order that each of the appeals be dismissed for failure to comply with a direction of the court or for failure to attend a hearing relating to the appeal.

9. The power is enlivened in relation to Mr Yates under both of the heads of that paragraph.  The evidence to which I have referred shows quite plainly that it is appropriate to exercise the power to dismiss Mr Yates’ appeal.  It is plain that he has no intention of prosecuting the appeal.  It is unnecessary to determine whether the appeal should be dismissed for want of prosecution.  It is sufficient to say that I am plainly satisfied that Mr Yates’ appeal must be dismissed for failure to comply with the Registrar’s direction to print the appeal books and by reason of his failure to attend last week’s directions hearing and the hearing today of the notice of motion.

10. As to Mr Rhodin’s position, it is unfortunate that he has found himself without funds to prosecute the appeal.  However, through no fault of his own, he is unable to comply with the direction to print the appeal books and he has in any event, quite fairly and properly, told the court that he wishes to withdraw his appeal.  It is therefore appropriate that I make an order dismissing his appeal. 

11. Ms Adamson, counsel for the ACCC, asks for a costs order against both Mr Yates and Mr Rhodin.  Plainly Mr Yates must bear the consequences of his failures to comply with the court’s directions and his failure to show any interest in prosecuting this appeal by meeting an order for costs.  I will therefore order that he pay the costs of his proceedings on the appeal. 

12. So far as Mr Rhodin is concerned, although, as I have said, his actions stand in stark contrast to those of Mr Yates, the finding of Gyles J was that Mr Rhodin was knowingly involved in the contraventions of his employer.  He finds himself in an unfortunate position on the appeal through no apparent fault on his part.  Nevertheless in accordance with the ordinary principles which apply where a party withdraws an appeal, or where the appeal cannot go ahead due to the failure of a party to comply with a direction of the court, the appropriate exercise of my discretion is that Mr Rhodin must also bear a costs order.  Accordingly I will order that Mr Rhodin pay the costs of the respondents on his appeal. 

13. The orders of the court in each of the appeals will be that the appeal be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:
Dated:       8 August 2006

NSD 573 OF 2006
No  appearance by the Appellant
Counsel for the Respondent:	CE Adamson SC
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	8 August 2006
Date of Judgment:	8 August 2006

NSD 574 OF 2006
The Appellant appeared in person
Counsel for the Respondent:	CE Adamson SC
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	8 August 2006
Date of Judgment:	8 August 2006