FEDERAL COURT OF AUSTRALIA

Hughes v Australian Competition and Consumer Commission [2004] FCA 1271

RICHARD DAVID HUGHES v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

N 835 of 2004

JACOBSON J

29 SEPTEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.         Notice of Motion filed by Respondent on 19 August 2004 is dismissed;

2.         Appeal is to be heard, as stated in Order 2 of Orders of Sackville J dated 28 July 2004, for one day in the period of 1 November 2004 – 21 November 2004;

3.         Appeal is to be heard in Adelaide, pursuant to Order 52 rule 9;

4.         The time for the Appellant to file and serve Amended Notice of Appeal is extended to 20 October 2004;

5.         Orders 3 and 4 of Orders of Sackville J dated 28 July 2004 regarding submissions are to stand;

6.         Upon the Applicant’s undertaking to the respondent to pay the costs of preparing the appeal papers when he is released from prison on the sentence he is presently serving in South Australia, the Respondent is to prepare appeal papers in this matter.

7.         The Appeal Book is to consist of :-

(a)       The two judgments of Conti J dated 29 April 2004 and 3 May 2004;

(b)       The transcript of the hearing before Conti J; and

(c)       Written Submissions of the Applicant, upon which he relied in the hearing before Conti J.

8.         The Respondent is to prepare the Appeal Book by 20 October 2004 and provide copies in accordance with the Federal Court Rules.

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

REASONS FOR JUDGMENT

1                     The respondent moves on a notice of motion filed on 19 August 2004 to dismiss this appeal for want of prosecution.  The motion is brought pursuant to order 52, rule 38(1)(a).

2                     The motion was supported by an affidavit sworn by Mr Ian McNeilly on 19 August 2004.

3                     Mr McNeilly points to two reasons why the appeal ought to be dismissed for want of prosecution.

4                     Firstly, the appellant has not complied with order 1 of the orders made by Sackville J on 28 July 2004.  On that date his Honour made the following orders:

“1.      The Appellant file and serve within twenty on (21) days an amended Notice of Appeal specifying the grounds of appeal and errors of law alleged to have been made by the trial judge.

2.                  The matter is to be set down for hearing for one day in the period 1 November 2004 to 19 November 2004.

3.                  The Appellant to file and serve submissions fourteen (14) days in advance of the hearing

4.                  The Respondent to file and serve submissions seven (7) days in advance of the hearing”

5                     Secondly, Mr McNeilly deposes to a conversation which he heard take place between a Registrar of the Court and the appellant on 18 August 2004 when the matter was before the Registrar to settle the appeal papers.

6                     On that occasion the Registrar inquired of the appellant as to his intention regarding the filing and serving of the amended notice of appeal.  The appellant stated that he had been depressed of late and that it was not possible for him to prepare an amended notice of appeal.  He also stated that he did not then wish to proceed with the appeal and that he did not have the resources or will to prepare a notice for discontinuance.

7                     However, on 16 September 2004 the appellant filed a document entitled ‘Notice of Motion’.  The document does not spell out any proper orders which the Court would have power to make but it is plain from the terms of the document that the appellant now wishes to prosecute the appeal.  I have treated the notice of motion as in effect the appellant's submissions on this motion.  Paragraph 1 of the document states that the appellant has recovered from his illness and intends and wants to prosecute the appeal with vigour.

8                     It is well established that the court's power to dismiss for want of prosecution is a drastic step which would only be justified by the grossest or most contumelious delay;  see Birkett v James [1978] AC 297.  That case has been followed in the Federal Court; see Van Reesema v Giameos (1979) 27 ALR 525.

9                     Whilst it is regrettable that the appellant has not complied with the order made by Sackville J, I do not think that in the light of what the appellant has said about his intention to prosecute the appeal that the draconian power to dismiss for want of prosecution is justified.  That is particularly so in this case where the appellant was found guilty of contempt of court by Conti J and was sentenced to a term of imprisonment of six months.  The appellant wishes to appeal against his conviction for contempt.

10                  It is true, as Ms Liavis who appeared for the respondent told me, that the notice of appeal as presently drafted does not disclose any proper grounds of appeal or errors of law.  Nevertheless, in light of what the appellant has said in his document I do not see that it is appropriate to, as I have said, exercise the power to dismiss the appeal.  For those reasons the notice of motion filed on 19 August 2004 is dismissed

Associate:

Dated:              30 September 2004