FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) [2015] FCA 1103

Upon the undertaking by the fourth respondent which has become Exhibit 1 in respect of the interlocutory application filed on 15 September 2015,

THE COURT ORDERS THAT:

1.    The fourth respondent’s application for early discharge (early discharge application) in respect of the order for his imprisonment for a period of three years made on 24 October 2013 (the 24 October 2013 order) be granted and take effect in the manner and subject to the conditions specified in this order.

2.    In lieu of further being under an obligation, in accordance with the 24 October 2013 order, to serve in any event the first 18 months of his three year period of imprisonment, the fourth respondent be released from his present obligation to serve the balance of that first 18 months.

3.    Consequentially, the fourth respondent is forthwith released from any further obligation to undergo imprisonment in accordance with the warrant issued pursuant to the 24 October 2013 order, such that he is to be discharged from custody forthwith.

4.    The suspension of the fourth respondent’s obligation to serve the balance namely, 18 months, of his imprisonment for a period of three years, provided for in paragraph 1 of the 24 October 2013 order, be varied such that the suspension hereafter be for a period of three years and six months, commencing on his release pursuant to this order but still on the two conditions specified in paragraph 1 of the 24 October 2013 order (the conditions).

5.    Consequentially, paragraph 3 of the 24 October 2013 order is hereupon vacated and, in lieu thereof, it is ordered that, in the event that, after release in accordance with this order, the Fourth Respondent complies with the conditions for that period of three years and six months, any requirement to serve the balance of the sentence be extinguished.

6.    To the extent of any inconsistency, this order prevails over the 24 October 2013 order but otherwise the terms of that order remain in force.

7.    The Court’s reasons for judgement in respect of the early discharge application be published in full solely to the parties to that application and their respective legal advisers. Save to the extent that the early discharge application is on the Court file in a redacted form and save to the extent to which those reasons for judgement are separately published by the Court in a redacted form, no person is, without the leave of the Court or a judge, to publish the early discharge application or those reasons for judgement.

8.    The applicant and fourth respondent be granted liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Peter Clarence Foster, who is the fourth respondent in the original proceedings, is presently serving a term of imprisonment for contempt of this Court, pursuant to an order which I made in those proceedings on 24 October 2013: Australian Competition & Consumer Commission v Chaste Corporation Pty Ltd (No 6) (2013) 223 FCR 426. The terms of the order then made were:

(1)    The Fourth Respondent be imprisoned for a period of three years with the first 18 months to be served in any event. As to that 18 months, the 27 days served between 18 November and 15 December 2011 is to count as imprisonment already served. The balance of the sentence is suspended for a period of three years commencing on his release on conditions that, during that three year period, the Fourth Respondent:

(a)    not directly or indirectly engage in or be knowingly concerned in the promotion or conduct by a corporation of any business relating to weight loss, cosmetic or health industry products or services of any kind;

(b)    does not commit any criminal offence, other than an offence against the Traffic Act 1949 (Qld) or the Transport Operations (Road Use Management) Act 1995 (Qld) or other state or territory equivalent, punishable by imprisonment.

(2)    If the conditions are not met, the suspension shall cease and the Fourth Respondent will, if a judge so directs, serve all or such part of the remainder of the 18 month period not served as the judge may direct.

(3)    In the event that, after release upon serving 18 months imprisonment, the Fourth Respondent complies with the conditions for that period of three years, any requirement to serve the balance of the sentence be extinguished.

(4)    The existing imprisonment and arrest warrants be discharged and, in lieu thereof, further warrants issue for the arrest and committal of the Fourth Respondent to prison for a period of 18 months.

(5)    The Fourth Respondent pay the Applicant’s costs of and incidental to the application for contempt to be taxed if not agreed.

(6)    The Applicant and Fourth Respondent be granted liberty to apply.

2    An appeal by Mr Foster against this order was subsequently dismissed by Dowsett J: Foster v Australian Competition and Consumer Commission (2014) 219 FCR 563. Mr Foster has now sought his early release from prison.

3    The charges alleging contempt brought by the Australian Competition and Consumer Commission (the Commission) were aptly brought in the original proceedings, rather than in separate proceedings: r 42.11(1) Federal Court Rules 2011 (the Rules). So, too, is the present application, which arises from Mr Foster’s conviction and sentence in respect of those charges, aptly brought in the original proceedings.

4    That is not to say that an application of this kind must be heard by the judge who constituted the Court at the time when the applicant contemnor was committed to prison. Further, that coincidence does not, of itself, disqualify that judge from dealing with such an application. So much seems recently to have been accepted as a matter of course not calling for express reference by Andrews J in England when dealing with an application for early release by a person whom her Ladyship had earlier committed to prison for contempt: Her Majesty’s Solicitor General v Dodd [2014] EWHC 1285 (QB). In this case, upon my expressly raising the subject, neither party objected to my determining the application.

5    There are two issues which fall for determination. They are:

(a)    whether and in what circumstances this Court may order the early release of a person committed to prison for contempt; and

(b)    if there is such a power, whether in the particular circumstances of this case an order for Mr Foster’s early release ought to be made?

6    The particular circumstances of this case include some matters the disclosure of which is not, at least for the present, in the public interest. That dictated that, exceptionally, part of the hearing of the application be conducted in camera. It likewise dictates that part of these reasons for judgment be published only to the parties rather than being made generally available.

7    I turn now to the first of the issues for determination.

Whether and in what circumstances this Court may order the early release of a person committed to prison for contempt

8    Subject to any other Act, and no other here is relevant, this Court has “the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court”: s 31(1) Federal Court of Australia Act 1976 (Cth). In turn, the High Court has “the same power to punish contempts of its power and authority as is possessed … by the Supreme Court of Judicature in England” as at 25 August 1903, the date of commencement of the Judiciary Act 1903 (Cth): s 24 Judiciary Act. At that time, the law of contempt applicable to the Supreme Court of Judicature in England was to be found in the common law, save to the extent then modified by statute. Since then, the law of contempt in England has in part been codified and modified by the Contempt of Court Act 1981 (UK). It necessarily follows from the scheme of incorporation by reference presently found in s 31 of the Federal Court of Australia Act and, in turn, in s 24 of the Judiciary Act that the English statutory modifications and codifications after the commencement of the Judiciary Act are not relevant to this Court’s jurisdiction in respect of contempts and the powers it may exercise once that jurisdiction has been invoked. Later English authority must be read with this in mind.

9    Rule 42.22 of the Rules provides:

42.22 Discharge before end of prison term

If a person charged is committed to prison for a term, the person may apply to the Court for an order for the person’s discharge before the end of the term.

10    Notwithstanding the apparent breadth of this rule and, in that, aptness to the application made by Mr Foster, there was, initially, some difference between the parties as to whether the Court had jurisdiction to order Mr Foster’s early release. The foundation for that difference was whether the granting of early release entailed an impeaching of the finality of the original sentencing order. In the course of oral submissions and after considering an illuminating discussion of the notion of “purging” a contempt in an English authority to which I drew attention, CJ v Flintshire Borough Council [2010] 2 FLR 1234 (Court of Appeal) (CJ v Flintshire BC), this difference disappeared. It became common ground that the Court’s jurisdiction in respect of contempts included a power, in the exercise of that jurisdiction, to order Mr Foster’s early release from prison. Consent is not, of course, a source of power, much less jurisdiction. As it happens, I agree with the position reached by the parties. The absence of any prior, detailed consideration as to the position with respect to this Court makes it desirable that I detail the reasons for my agreement.

11    Rule 42.22 is not materially different to Pt 55, r 14 of the Supreme Court Rules 1970 (NSW) (NSW Rules), considered by the members of the New South Wales Court of Appeal in Young v Registrar, Court of Appeal (1993) 32 NSWLR 262 (Young v Registrar). Differing views were expressed by the members of that Court of Appeal as to whether that court had power to order the early release of a person committed to prison for contempt.

12    Kirby P (as his Honour then was) considered that that court had power, enshrined in Pt 55, r 14, to order such a prisoner’s early release. His Honour’s discussion of the historical position in England is, with respect, of particular present value, given that the focus of s 31(1) of the Federal Court of Australia Act is, for reasons already given, on that historical, as opposed to contemporary, English position. Kirby P stated, Young v Registrar at 281-3:

Provisions similar to Pt 55, r 14 of the Supreme Court Rules 1970, have a long history. Originally, the courts having utilised their inherent powers to order imprisonment, they would invoke the same powers to order discharge of the contemnor from prison. Typically, this was done where it was shown that the contemnor's contempt had been purged: see, eg, Ball v Etches (1817) 1 Russ & M 324; 39 ER 125; Gray v Campbell (1830) Russ & M 323; 39 ER 124. The relevant form in the third edition of Oswald's Contempt of Court (1910), London, Butterworths, Form 17 at 281, provided for discharge from custody on the ground that the prisoner had no means to pay the sum owing for which he or she was imprisoned and had suffered a sufficient duration of imprisonment. Other cases where discharge was ordered included where the contemnor could show that he or she enjoyed a legal privilege from arrest or committal: see, eg, R v Stobbs (1790) 3 TR 735; 100 ER 830; or where the proceedings for contempt were avoidable for irregularity, and the irregularity had not been waived: see, eg, Levi v Ward (1823) 1 Sim & St 334; 57 ER 134; Ellerton v Thirsk (1820) 1 Jac & W 376; 37 ER 419.

In England, the Contempt of Court Act 1830 (UK), s 15, provided for the making of rules for the discharge of contemnors where their contempt had been purged. The Contempt of Court Act 1832 (UK) went further and provided that the court, committing a person for contempt, had the power to discharge the person from imprisonment. Similar grounds of discharge were maintained. They included the case where the contemnor had purged the contempt and had apologised to the court. These are common features of the exercise of the power of discharge following conviction for contempt: see, eg, Yager v Musa [1961] 2 QB 214; Crowley v Brown [1964] 1 WLR 147; [1964] 3 All ER 72; Adriatic Terrazzo & Foundations Pty Ltd v Robinson, Owens, and Australian Building & Construction Workers Federation, South Australian Branch (1972) 4 SASR 294; Vaughan v Vaughan [1973] 1 WLR 1159; 3 All ER 449; Von Doussa v Owens (No 3) (1982) 31 SASR 116.

In most of the foregoing cases it is pointed out that the procedure for discharge is not available to demonstrate that the original sentence was too severe when imposed. That is the business of an appeal, if such exists. Discharge is to permit the convicted contemnor to ask for clemency, demonstrate contrition, and establish that the punishment suffered already is enough to vindicate the authority of the court, and to punish the contemnor for the contempt found. Thus, in Crowley v Brown, the affidavit filed showed that, as a result of the proceedings, the contemnor in prison had lost his employment, and had been involved in large expense in getting legal aid in order to apply for bail and to appeal. Care must be taken in using some of the cases cited because a number of them relate to review on appeal, and not to review on an application for discharge.

…

In England, the 1832 Act was repealed in 1965. By O 52, r 8(1) the Rules of the Supreme Court (Eng), power was given to the court, on the application of any person committed to prison for contempt, to discharge that person. The present rule in this State (Pt 55, r 14 of the Supreme Court Act 1970) appears to be the local attempt to reflect the same jurisprudence as developed in England under the common law, and later under the legislation mentioned. The reference in the rule to “for a term” is clearly designed to permit discharge short of the service of a specified term, the power to discharge a contemnor committed to prison for an indefinite term being indisputable and usually enlivened where the contempt has been purged.

The power of discharge, short of service of the full-term, is also found in the law of the other States of Australia. Against the background of the authorities cited, and in its context, the discharge power must be seen as normally directed to the provision of clemency to the imprisoned contemnor. It will usually be applicable only where the contemnor shows remorse. Ordinarily, some new considerations, which were not before the court which imposed the sentence, will have to be demonstrated in order to authorise the later court, of co-equal authority, to discharge the contemnor from prison short of the term originally imposed. Thus, in King v President, Councillors and Ratepayers of the Shire of Gisborne (Supreme Court of Victoria, Nathan J, 3 September 1993, unreported), Nathan J rejected an application for discharge before the expiry of a term of imprisonment for contempt. He found that the applicant was broken, distressed, and destitute. But that he did not demonstrate remorse or contrition, and could show no new factors warranting interference with the sentence originally imposed.

13    Handley JA did not embark upon a lengthy consideration of prior English authority touching on a power to order early release. Rather, his Honour expressed a preparedness to assume, having regard to the language of Pt 55, r 14 of the NSW Rules, that the court had “a wide judicial discretion but an applicant must make out a proper case for a discharge”: Young v Registrar at 289.

14    The remaining member of the Court of Appeal in Young v Registrar, Powell JA, dissented as to whether Pt 55, r 14 of the NSW Rules enabled that court to order the early release of the prisoner. His Honour stated, Young v Registrar at 292:

… [The] old view was that, at least in the case of a criminal contempt, the period of imprisonment should be for a fixed term as for punishment for a criminal offence, the consequence being that, once the order for committal was made, the court was functus officio, and, apart from an appeal, the remedy lay in an application for the exercise of the Royal Prerogative (see Attorney-General v James [1962] 2 QB 637; see also Re Slack, a situation which has been changed in England by the provisions of s 14 of the Contempt of Court Act 1981 (UK) which, while providing for fixed terms — in the superior courts up to a maximum of two years, and in the inferior courts (as to which see Peart v Stewart [1983] 2 AC 109) to a maximum of one month — for committals for contempt expressly provides that the fixing of such a term is “without prejudice to the power of the court to order an early discharge”; …

Assuming, contrary to his view that there was a power to order early discharge, Powell JA, as with Kirby P and Handley JA, considered that some change in circumstances needed to be demonstrated in order to warrant the exercise of any such power:

It seems to me that — on the assumption that it has power to do so — in order that the Court might be persuaded to make an order for early discharge, there should be placed before it evidence as to some change in the relevant circumstances since the making of the order for committal which makes it inappropriate — as, for example, because no good purpose will be served by detaining the contemnor further (Re Barrell Enterprises), or, because the contemnor has purged his contempt (see, eg, Crowley v Brown [1964] 1 WLR 147; [1964] 1 All ER 72; see also Yager v Musa [1961] 2 QB 214, Vaughan v Vaughan [1973] 1 WLR 1159; [1973] 3 All ER 449) — that the contemnor be detained further.

15    The judgments delivered in Young v Registrar must be read subject to a controversy which existed in that case as to the application and import, if any, of s 53 of the Sentencing Act 1989 (NSW) to a person convicted of contempt. Such a controversy did not attend the present case. Neither at the time of sentencing nor on the hearing of the present application was it submitted that Mr Foster had been convicted of a “federal offence” within the meaning of s 16 of the Crimes Act 1914 (Cth) such that the detailed prescription in Pt 1B of that Act in respect of the sentencing, imprisonment and release of federal offenders was applicable. That definition refers to an “offence against the law of the Commonwealth” with that section giving the term “federal offender” the corresponding meaning of a person convicted of a “federal offence”.

16    In Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984 at [18] – [19], by reference to Witham v Holloway (1995) 183 CLR 525 (Witham v Holloway), I concluded that Mr Foster had been charged with criminal contempts, because it was alleged his disobedience of this Court’s earlier order constituted a deliberate defiance of that order and that the proceedings were criminal in character, even though they were governed by civil procedure. Since then, in June this year, Witham v Holloway has been considered by the High Court in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622 (CFMEU v Boral Resources).

17    In Witham v Holloway, at 534, Brennan, Deane, Toohey and Gaudron JJ had stated:

[T]o say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge.

That statement was a foundation for the conclusion which I reached in Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3). In CFMEU v Boral Resources French CJ, Kiefel, Bell, Gageler and Keane JJ stated, at [45]:

[45] In Witham v Holloway, the plurality expressly noted that the process whereby a contempt proceeding is resolved is a civil “hearing” not a criminal “trial”. McHugh J also expressed the view that proceedings for contempt of court to punish a respondent are “civil and not criminal proceedings”.

(footnote references omitted)

In light of this later statement in CFMEU v Boral Resources, and subject to a reference which I make later in these reasons for judgement to Adriatic Terrazzo & Foundations Pty Ltd v Robinson, Owens, and Australian Building & Construction Workers Federation, South Australian Branch (1972) 4 SASR 294 (Wells J) (Adriatic Terrazzo & Foundations v Robinson), the better view now is that, even though Mr Foster’s conduct constituted a criminal contempt, the proceedings by which the charges were heard and determined were not just governed by civil procedure but were civil in character. Nothing which was stated in CFMEU v Boral Resources calls into question my further conclusion in Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3), also based on Witham v Holloway, that the Commission was required to prove the charges it laid against Mr Foster beyond reasonable doubt.

18    Given that the proceeding is to be regarded as civil in character, even though the proved contempts were criminal ones and even though, at a general level of descriptive abstraction, one might describe the conduct as an “offence”, it appears to me to be an odd construction of the definition of “federal offence” in s 16 of the Crimes Act to regard it as applicable to and thereby engaging Pt 1B. That definition and those provisions look to be directed to the exercise of a criminal jurisdiction. In this circumstance and in the continued absence of any submission by either party that the definition and thus that Part is applicable, I proceed on the basis that Pt 1B of the Crimes Act is not applicable.

19    The dissent of Powell JA in Young v Registrar was not unsupported by authority. The authority his Honour cites, Attorney-General v James [1962] 2 QB 637, predates the reform effected to the law of contempt in England by the Contempt of Court Act. It is a considered judgment of a Divisional Court presided over by Lord Parker CJ, the other members of which were the then Slade and Widgery JJ. That court concluded, unanimously, that, in respect of criminal contempts, the court had no jurisdiction to interfere with a fixed term of imprisonment, even where the contempt concerned had been purged, the matter being one for an exercise of the Royal Prerogative of Mercy on the advice of the Home Secretary. It was that position which was, by s 14(1) of the Contempt of Court Act, expressly altered such that, even in respect of a criminal contempt, there is now in England undoubted power to order early release.

20    Rule 42.22 draws no distinction as between criminal and civil contempts. In that rule, as with the observation made by Kirby P with respect to Pt 55, r 14, “‘for a term’ is clearly designed to permit discharge short of the service of a specified term”.

21    Of course, a rule of court cannot be inconsistent with statute. Neither party submitted that there was any inconsistency between the apparent general application of r 42.22 to the present case and a scheme, evident from s 31(1) of the Federal Court of Australia Act and s 24 of the Judiciary Act, which assimilates this Court’s jurisdiction with respect to contempt with that of the Supreme Court of Judicature in England in 1903. If the position were as stated by Powell JA in dissent and, more particularly, in Attorney-General v James, r 42.22 might be thought, in the generality of its application, to over-reach the historic English position which has been enshrined in statute for this Court and the High Court.

22    Yet as the passage quoted from the judgment of Kirby P demonstrates, another view is open. And that view accords with the width of language of r 42.22 of the Rules.

23    That there exists a power to order release also accords with a view expressed by Smithers J in Re Petruk (unreported, Federal Ct, No 397 of 1984, 2 April 1986) when sentencing to a term of imprisonment a person whom his Honour had found guilty of wilfully failing to answer, though directed, a question put to her in the course of a bankruptcy examination. His Honour directed that Mrs Petruk be given a notice at or about the time of her arrest which stated to the effect, materially, “That it is within the competence of the Court to order her discharge from prison at any time before the expiry of the term of imprisonment imposed upon her this day …”. He did not cite any authority for that view. An appeal from his Honour’s order was subsequently dismissed (Petruk, E.M. v The Official Trustee in Bankruptcy [1986] FCA 282) but, in so doing, the Full Court did not pass upon, one way or the other, the correctness of the view of Smithers J about a power to order release, enshrined in that notice. Re Petruk is the authority cited by the Australian Law Reform Commission in its report, “Contempt” (AGPS, Canberra, 1987) at p 299, para 506 in its summary of what is said to be the common law position in relation to imprisonment for the proposition that a contemnor “may apply to be released earlier on the ground that he or she has purged the contempt.”

24    Earlier in time in this Court is Viner v Australian Building Construction Employees’ and Builders Labourers’ Federation (No 3) (1982) 63 FLR 242 (Keely J) (Viner v BLF). In that case, after concluding that imprisonment was an appropriate sanction in respect of the serious contempt of intimidatory conduct directed to dissuading persons from giving evidence before the Court or, in any event, from giving unfavourable evidence, Keely J drew attention, at p 249, to O. 42, r 12 of the Federal Court Rules 1979 (the former Rules) [The language of r 42.22 of the Rules is not materially different from O. 42, r 12 of the former Rules]. Having so done, Keely J referred to a statement made by Kelly CJ in the former Commonwealth Court of Conciliation and Arbitration in Re Grant (1949) 63 CAR 238 at 240, about the principle which should attend dealing with an application for discharge from imprisonment in respect of contempt. Though authority was not cited, the statement about the principle, which it is not necessary to set out, was clearly premised on the existence of a power to order early release.

25    In Re Grant, like the present, the contempt was constituted by disobedience of court orders, albeit imperative rather than, as in the present, prohibitory in character. Though there was not unanimity of outcome on the facts in respect of each of the applicants for discharge in that case, the judgments of the other judges constituting the court, Kirby and Dunphy JJ, are likewise premised. That premise was, inferentially, the then O. XLIX, r 10 of the High Court Rules 1928 (SR 118 of 1928), which was also applicable in respect of a proceeding in that court. That rule, like r 42.22 of the Rules, conferred a power to order early release in respect of a person ordered to be committed for contempt. And it did so without drawing any distinction as to whether the contempt was civil or criminal in character. I note in passing that the present equivalent of this rule in the High Court Rules 2004, r 11.04.4, confers a like power and without any distinction.

26    Returning to Viner v BLF, having referred to Re Grant, Keely J stated, at 250, that it was “open to Mr Gallagher [the then union secretary who had been ordered to be imprisoned] to apply at any time for his discharge, supporting his application by such evidence as he thinks fit”. Mr Gallagher’s contempt was of a kind of which Keely J, referring at 244 with approval to Attorney-General v Butterworth [1963] 1 QB 696 at 719, considered there could be no greater. It would be incongruous if Mr Foster’s contempt, flagrant though it was, and particularly aggravated in light of his antecedents, did not admit of a power to order for cause his early release from imprisonment.

27    If only for completeness in respect of this Court, mention ought also to be made of Re: Malan, Ex Parte: Malan v Boothe [1994] FCA 1115 (Einfeld J) (Re Malan). In that case, Mr Malan, a bankrupt, had been committed to imprisonment of indefinite duration in 1993 for a contempt constituted by a failure to lodge his statement of affairs. Notwithstanding that he had still not filed that statement, Einfeld J determined that Mr Malan ought to be released because, in the particular circumstances then prevailing, “Such detention would [in his Honour’s view] offend traditional standards of mercy, compassion and humanity in light of the gravity of the offence and the time served” (at 14). His Honour did not cite the source of a power to order to release and, with respect, the standards mentioned would not be a substitute for a want of power. Rather, any want of judicial power might, as was envisaged in Attorney-General v James, be ameliorated by a benign exercise of the Royal Prerogative of Mercy (as to differences which have in the past been thought to attend the exercise of that prerogative, depending upon whether a contempt is “criminal” or “civil” in character, see Adriatic Terrazzo & Foundations v Robinson at 296-297). At the time, the former Rules provided, by O. 11, r 1, that, subject to an exception not presently material, they did not apply to a proceeding under the Bankruptcy Act 1966 (Cth), which were, instead, to be conducted under the practice and procedure set out in the Bankruptcy Rules 1968. Though the Bankruptcy Rules 1968 contemplated, by r 176, that a warrant of imprisonment for contempt might lie in the registry for a period, they did not contain an analogue of the then O. 42, r 12 of the former Rules. Re Malan therefore offers an example of an early discharge order but does not offer insight into the source of the power to order that discharge. It is, though, consistent with Re Petruk.

28    Von Doussa v Owens (No 3) (1982) 31 SASR 116, one of the cases cited by Kirby P in Young v Registrar, offers another Australian example of an exercise by a superior court of an assumed power to order early release, also as it happens in respect of a contempt constituted by a failure to answer an examiner’s questions.

29    Adriatic Terrazzo & Foundations v Robinson, another Australian case cited by Kirby P, arose against the background of a committal to prison in respect of a contempt constituted by wilful disobedience of an injunction. Wells J referred (at 296) to the distinction between civil and criminal contempts, opining that the latter were constituted by a “general disobedience of the Courts’ authority or a general flouting of the Courts’ authority without reference to any particular order” and a “second type” of contempt proceedings which:

…relates to the enforcement of civil rights, and … the Court uses its power of committal to ensure to a plaintiff that he achieves those rights that have been granted to him by an order of the Court. This type of contempt proceedings is more substantively civil in character, and the main purpose of it is not so much to protect the Court’s general authority, but to ensure to a plaintiff who has succeeded in obtaining an order that that order will be performed. In other words, it is in support of the civil rights of an individual.

A similar expression of rationale and related differentiation between criminal and civil contempts is to be found in the judgment of Powell JA, Mahoney P and Meagher JA agreeing, in C v Registrar, Court of Appeal [1996] NSWCA 85, an unreported judgment of the New South Wales Court of Appeal, a case to which my attention was helpfully drawn by the Commission in its supplementary written submissions. Even so, that court chose to proceed on the basis, derived from Pt 55, r 14, that it had the power to order early release although, on the facts, it determined that the case was not one for the exercise of that power.

30    Adriatic Terrazzo & Foundations v Robinson but not C v Registrar, Court of Appeal, was decided long before Witham v Holloway and each was decided before CFMEU v Boral Resources. Further, in initially seeking the injunctive orders which Mr Foster came to disobey and in charging him for contempt in respect of that disobedience, the Commission was hardly seeking to secure and then vindicate a private right. Even so, and even though the point did not feature in submissions made on his behalf, I ought, in fairness to Mr Foster, acknowledge the possibility, derived from Adriatic Terrazzo & Foundations v Robinson, that my characterisation of his contempts as criminal rather than civil is erroneous. If so, that would render inapplicable the foundation of the dissent of Powell JA in Young v Registrar, which is the view expressed in Attorney-General v James that there is no power to order early release in respect of a criminal contempt (because the court becomes functus officio upon the fixing of the term of imprisonment). It would likewise meet the reservation which I voiced about a possible inconsistency between the generality of r 42.22 of the Rules and the English position indirectly incorporated by reference via s 31 of the Federal Court of Australia Act.

31    In Witham v Holloway at 534, Brennan, Deane, Toohey and Gaudron JJ observed that the “differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory”. Their Honours further observed (ibid) that “the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual”. If all contempt proceedings are punitive, the basis for a distinction such as is referred to in Adriatic Terrazzo & Foundations v Robinson and C v Registrar, Court of Appeal must, with respect, surely be illusory. If so, it is difficult to see how any principled distinction can or ought to continue to be drawn between so-called criminal and civil contempts in relation to the existence of a judicial power to order early release.

32    In these circumstances, in the face of the apparent generality of application of r 42.22 of the Rules and in the absence of either party submitting that this generality ought to be read down the better course, in my view, in a case touching upon personal liberty is to proceed on the basis that the jurisdiction does indeed exist. It is, in light of the illusory nature of the distinction between civil and criminal contempts referred to in Witham v Holloway, in a passage so recently cited with approval by the High Court in CFMEU v Boral Resources, hardly satisfactory that there be even an interrogative note as to whether, depending upon whether the contempt is classified as civil or criminal, the Court has jurisdiction to order early release where that punishment is imprisonment. No such note exists now in the United Kingdom in light of s 14(1) of the Contempt of Court Act. At least in this respect, this is a subject Parliament might well consider, as did its counterpart at Westminster, ripe for law reform so as to introduce clarity and consistency in this branch of the Law.

33    Reference was made on behalf of Mr Foster to a suggested additional source of power to order his early release – s 23 of the Federal Court of Australia Act. That section provides:

Making of orders and issue of writs

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

There is a superficial attraction in this submission but that attraction has Siren-like qualities, apparent on a closer reading of s 23. The generality of conferral of power is predicated upon there being a matter in which the Court has jurisdiction. If, for the reasons given by Powell JA in dissent in Young v Registrar, the Court is functus officio once a sentence in respect of a criminal contempt has been imposed, s 23 would be of no assistance, because there would be no matter in respect of which the Court any longer had jurisdiction. That section is a source of power within jurisdiction, not a source of jurisdiction. This acknowledged, proceeding as I do on the basis that there is jurisdiction to entertain an application for Mr Foster’s early release, s 23 is a source of power to make such orders related to that release as are just in the particular circumstances of his case.

34    On the basis that there is jurisdiction, much assistance is, in my respectful opinion, to be gained in its relation to the exercise from observations made in CJ v Flintshire BC.

35    In CJ v Flintshire BC each of their Lordships referred to the difference between a coercive order made in respect of a particular contempt and a contempt grounded in a breach of a prohibitory order. Mr Foster, I interpolate, breached a prohibitory order. The sentence imposed upon him was first and foremost punitive with its coercive element confined to conduct after his release from imprisonment. Mr Foster’s imprisonment has doubtless in practice had a protective effect in that it renders the repetition by him of conduct of the kind that led to his breaching the Court’s orders difficult if not impossible while he is in prison. “Protective custody” of this kind was not though a basis for his imprisonment in respect of his contempts.

36    Having referred to the difference mentioned, Sedley LJ, in expressing agreement with Wilson LJ, stated, at [32] – [33]:

32.    I agree too with the analysis made by Wilson LJ of the practical difference in this context between the purging of contempt where the offence is breach of a mandatory order and where, as here, it is breach of a prohibitory order. In Harris v Harris [2001] EWCA Civ 1645, at 21, Thorpe LJ accepted that "the application to purge is rooted in quasi-religious concepts of purification, expiation and atonement". In such a context, while compliance with a mandatory order may be the kind of proof of contrition which a court can evaluate, contrition sufficient to purge a breach of a prohibitory order is much more elusive and, many people might think, not really the business of the courts. Their task is completed, subject to any appeal, at the moment of sentence.

33.    Yet the power to relieve a contemnor post-sentence plainly exists in both classes of case. …

37    Wilson LJ had stated, at [6]:

To purge a contempt would in my view ordinarily mean to atone for a contempt, eradicate it or cleanse it of its previous ill-effect. Although a person committed to prison for breach of a mandatory order to do an act (such as to hand over a child, as in Corcoran v. Corcoran [1950] 1 All ER 495) may reasonably be said to purge his contempt if he thereupon does the act or causes it to be done, the notion is less easily applied to an act which amounts to the breach of a prohibitory order and which, once done, cannot be undone.

38    I respectfully agree with these statements. Mr Foster’s past conduct amounting to the contempts is a proved given which cannot be undone. Voluntary restitution of lost investments, with related compensation for loss of use of money, might perhaps be regarded by some as a form of atonement but it is necessary to recall that it was no part of the contempt proceeding to delve into whether any investor or the Commission had any cause of action against Mr Foster in respect of an alleged lost investment, much less the amount of any such loss. His involvement alone gave rise to the contempts and that past involvement cannot be undone or “purged”.

39    At [21] – [22], Wilson LJ set out, in a non-exhaustive way, questions which he thought fell to be answered in applications for early release and made some related observations about these questions:

21.    With the advantage of more time for reflection than was vouchsafed to the judge, I consider that, had I been hearing the appellant's application for early discharge, I might have asked myself eight, somewhat overlapping, questions. In case they prove to be of any value to other judges confronted with applications for early discharge in similar circumstances, I set them out as follows:

(i)    Can the court conclude, in all the circumstances as they now are, that the contemnor has suffered punishment proportionate to his contempt?

(ii)    Would the interest of the State in upholding the rule of law be significantly prejudiced by early discharge?

(iii)    How genuine is the contemnor's expression of contrition?

(iv)    Has he done all that he reasonably can to demonstrate a resolve and an ability not to commit a further breach if discharged early?

(v)    In particular has he done all that he reasonably can (bearing in mind the difficulties of his so doing while in prison) in order to construct for himself proposed living and other practical arrangements in the event of early discharge in such a way as to minimise the risk of his committing a further breach?

(vi)    Does he make any specific proposal to augment the protection against any further breach of those whom the order which he breached was designed to protect?

(vii)    What is the length of time which he has served in prison, including its relation to

(a)    the full term imposed upon him and

(b)    … [A reference to a consideration arising from the application of a United Kingdom statute and thus not relevant to this Court]?

(viii)    Are there any special factors which impinge upon the exercise of the discretion in one way or the other?

22.    I am clear that the success of an application for an order for early discharge does not depend on favourable answers to all the questions. Nevertheless the first is a general question which, as May LJ suggested, probably needs an affirmative answer before early discharge should be ordered. The second will surely require a negative answer. An affirmative answer to the third will usually (although not always… ) be necessary but may not be sufficient. As Lord Clyde, the Lord President, said in the Scottish Court of Session in Johnson v. Grant [1923] SC 789, at 791:

"The mere circumstance that he presents a belated expression of contrition has, with regard to the public aspect of the matter, almost no importance at all. There is ample opportunity … for repentance before sentence is pronounced. The appeal is simply to the clemency of the court … and the idea must not be harboured that a person who has wilfully committed a breach of interdict can obtain remission of sentence by coming to the court and saying, "I realise my transgression and apologise for it" – however sincerely such an apology may be made."

I suggest that, subject to what I have said above, answers to the questions go into the melting pot; and out of it, once they have melted together, comes the conclusion.

40    Subject to the reservation voiced about whether, truly, Mr Foster’s committal to prison ought appropriately to be regarded as having protective qualities, these questions and his Lordship’s observations about their answers have like relevance, in my view, in relation to the exercise of the power conferred by r 42.22 of the Rules.

41    Answering those questions in this particular case requires reference to some evidence which, for good reason, must not presently be disclosed publicly.

Should an early release order be made?

42    While in prison, Mr Foster has acted as an informant for the Queensland Police Service (police) in respect of a homicide investigation. He has provided to the police a comprehensive statement detailing the course of conversations which he has had with a particular inmate. Some of those conversations were recorded by a covertly placed listening device; others were not. The statement has been prepared based on Mr Foster’s recollection of those conversations, with his memory refreshed by his contemporaneous notes. Those notes are in the possession of the police. I have read the statement concerned.

43    For all of the reasons which I canvassed when sentencing Mr Foster for the contempts, which included his deplorable antecedents, I would have grave reservations in accepting an uncorroborated statement by him that he has acted as an informant either at all or in the manner described. But his actions are not uncorroborated. That he has acted as an informer in respect of this investigation is confirmed by the police. As I have mentioned, that some of the conversations he relates in his statement did occur is verifiable from covert recordings. None of this is contested by the Commission.

44    Further, the Regional Crime Co-ordinator for the South-East Region, who is a senior commissioned police officer, has confirmed that Mr Foster has been of assistance in the investigation. Having regard to the statement, I can well see why this is so.

45    It was put on Mr Foster’s behalf that he has undertaken his role as informer at considerable risk. On the evidence, I agree. This risk has been recognised by prison authorities in the manner of Mr Foster’s confinement for part of his sentence. He has been segregated with consequential restrictions in the privileges he might otherwise have enjoyed while in prison. When acting as an informant, he has been confined with or associated with a particular inmate who has come to be a suspect in the homicide investigation. Mr Foster’s period of confinement or association with the suspect this year has not been fleeting.

46    The period of shared confinement did not just mean that Mr Foster lost the benefit of having a cell to himself. For the period of his shared confinement, Mr Foster was subject to an ever-present risk that the suspect might ascertain that he was acting as an informant or at least form that suspicion and act on that knowledge or suspicion by harming Mr Foster, perhaps fatally. Further, the risk of harm to which Mr Foster has been subject was not confined to the suspect. It is notorious that, within prisons, prisoners have informal internal communication networks and, further, that there is general antipathy to those regarded as informers. I have no doubt that this has introduced tensions and anxieties into Mr Foster’s imprisonment which would not have been present had he chosen not to act as an informant.

47    Mr Foster did not commence his term of imprisonment with the aim of acting as an informant for the police. He chose to do this after becoming privy in casual conversation with this other inmate, which caused him to suspect that that person may have committed and concealed a particularly callous murder. That Mr Foster chose to take his suspicion to the police and then to act on request as an informer may not have been an entirely altruistic act. Mr Foster is not without experience of the criminal justice system and, inferentially, may well have understood that his acting as an informer might stand to his credit on an early release application. But Mr Foster’s past experience of prisons inferentially also carries with it the likelihood that, when he chose to act as an informer, he was well aware of the risk of injury or worse to which he would be subjecting himself. As I observed in the course of submissions, whatever else one might say about Mr Foster, in embarking upon the role of informer inside a prison, he has been a brave man.

48    In accordance with the order which I made on 24 October 2013, Mr Foster is presently due for release from prison on 31 March 2016. He might, following his arrest last year, just have chosen to serve his allotted time and then take his release in accordance with the terms of that order. That he has chosen not to do this stands to his credit.

49    I am not engaged in the process of re-sentencing Mr Foster. Insofar as his application adopts that term, it is misconceived. As Kirby P pointed out in the passage which I have quoted from Young v Registrar, the procedure is not available to demonstrate that the sentence was too severe when imposed. That would be the business of an appeal. Mr Foster had and exercised a right of appeal but that appeal has been dismissed. The purpose of the present procedure is to decide whether there is a case for clemency, as events now stand.

50    It was common ground as between Mr Foster and the Commission that, in the context of criminal sentencing, co-operation with law enforcement agencies by acting as an informer sounds in a substantial reduction of the sentence otherwise applicable for a given offence. That is confirmed by R v PX [2005] QCA 246 and R v Sittczenko; ex parte Cth DPP [2005] QCA 461 and the authorities referred to in those cases. There is no reason in principle why this same co-operation ought not to be regarded as an ameliorating factor in an application for early release in respect of a period of imprisonment for contempt. A like public interest is being served by that conduct.

51    Turning to the questions posed by Wilson LJ, when I ask myself whether Mr Foster has suffered punishment proportionate to his contempts, I remind myself that he has to date served about two-thirds of the prison time which I envisaged he would serve in any event and that he has latterly served that time in harsher conditions that he might have otherwise and subject to an ever present risk that he chose voluntarily to assume to an end that serves the public interest in the detection, investigation and prosecution of serious criminal offences. The impact and circumstances of incarceration are relevant considerations: Her Majesty’s Solicitor General v Dodd at [9] – [11]. The interest of the Commonwealth in upholding the rule of law is not confined to vindication of the authority of injunctions made by this Court in the exercise of Commonwealth judicial power. It extends in the present context to the upholding of the general criminal law and the public interest just mentioned. There is a risk, grounded in the risk to which all informers are subject when in prison, that Mr Foster might suffer harm for his undertaking or being suspected of undertaking that role. Though there is evidence that the prison authorities are aware of the risk and have been responsibly reactive to it, it would be difficult to eliminate it without well-nigh continuous solitary confinement of Mr Foster for the balance of his originally envisaged term of imprisonment. Were the risk to come to fruition, that might mean that he never comes to give evidence in any criminal proceeding. In this sense, continuing to keep him in prison might prejudice the rule of law.

52    A contingency that, upon release, Mr Foster might lose an incentive to co-operate with the police and, perhaps later, with prosecuting authorities is met by his voluntarily proffering to the Court an undertaking in respect of continued co-operation of the same kind as is proffered and regarded as sufficient in the criminal sentencing process. That undertaking is an exhibit in the proceeding but to which, necessarily, I have restricted access.

53    Mr Foster has not expressed contrition in respect of the conduct which was found to have constituted his contempts. Even if he had, his antecedents are such that one might be forgiven for viewing the genuineness of any expression of contrition with scepticism.

54    Mr Foster admitted in these proceedings that, in lieu of attending as required at his sentencing hearing and in respect of his appeal, he had deliberately and falsely purported to have been in Fiji when all the while he had remained in Australia. This conduct has not, as well it might, been charged as separate contempts. Even so, it is deeply dismissive of the administration of justice but entirely consistent with the deficiency of character to which I referred when sentencing him. Yet, notwithstanding that deficiency of character, Mr Foster has exhibited bravery in co-operating with the police in assuming the role of informer in relation to the investigation of a suspected serious criminal offence.

55    Mr Foster has not offered any specific proposal to minimise the contingency that he may again be involved in the promotion of products with claimed weight-loss qualities. It was though always a part of the order by which he was committed to prison that he would be released without having to serve the full term imposed upon him, providing he adhered for a specified period to conditions designed to address his offending conduct. It was no part of his application that he ought to be subjected to any different conditions for any lesser period. That period was to run from the date of his release. I am not persuaded that a reduction in the overall period of conditional release is warranted. Thus, bringing the release date forward would necessarily entail an extension of the period of conditional release. Exact mathematical correspondence would not be needed, only a demonstrable recognition that Mr Foster has not received, an unintended, extra benefit from his early release. Rule 42.22 does not expressly authorise such a variation in the period of restraint but it is here that s 23 of the Federal Court of Australia Act addresses any otherwise want of power.

56    That there are presently special circumstances relevant to whether Mr Foster ought to have the benefit of early release is manifest from his role as an informer. It is not yet possible to tell whether a sequel to that role will be the conviction and sentencing of the suspect. Obviously enough, were that already to be a sequel, the benefit of his co-operation would be even more manifest. Such a sequel was not a pre-condition to his eligibility to apply for early release. Indeed, so doing might, given the ordinary processes of the criminal justice system, have meant that his existing release date would have passed.

57    The factors which I have mentioned overlap to an extent and certainly interplay. Considered collectively, they do warrant an order for Mr Foster’s early release. I consider that the time which Mr Foster has already served in prison is, in the present circumstances, “sufficient” if subject to the continued contingency of his being required to serve the 18 month balance of the original three year term of imprisonment.

Conclusion

58    Although Mr Foster’s deliberate and false purporting to have been in Fiji when all the while he remained in Australia both at the time of his sentencing for the contempts and thereafter until arrested in 2014 was deeply dismissive of the administration of justice and entirely consistent with the deficiency of character described when he was sentenced for those contempts, there are countervailing considerations, albeit of a nature which must remain for the present confidential, which warrant his early release from prison, subject to the continued contingency of his being required to serve the 18 month balance of the original three year term of imprisonment. There will be a related, consequential extension in the period of the conditions to which he will be subject upon his release.

Associate:

Dated:    16 October 2015