FEDERAL COURT OF AUSTRALIA

Foster v Australian Competition and Consumer Commission [2012] FCA 953

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.

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, Yates J, for orders adjourning the trial. The hearing of that application commenced on 29 August and on Thursday 30 August his Honour delivered judgment on that application, dismissing it: Australian Competition and Consumer Commission v Sensaslim Australia Pty Ltd (In Liquidation) (No 3) [2012] FCA 939.

2    The following day, that is, Friday 31 August 2012, Mr Foster urgently filed an application for leave to appeal from the order which had been made by his Honour, together with an application for an urgent interim stay of the proceedings which are due to commence on Monday. Those applications came before me as duty judge on Friday and at that time I adjourned them for hearing to 10:30 this morning – that is, 10:30 am on Sunday 2 September. I took that course because I was informed, upon the first return of the applications, that the solicitor for Mr Foster had not, by reason of the considerable time pressures which had existed, been able to place Mr Foster’s case before the Court on the Friday with the clarity which it deserved. That is the reason why the proceedings were stood over to this morning.

3    Before me three errors were identified in the reasons of his Honour in declining to adjourn the proceedings. It is necessary to identify error because the reasons of the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 indicate that, in general, a grant of leave to appeal will only be forthcoming where it is demonstrated, first, that the decision from which leave is sought is attended by sufficient doubt to warrant it being considered by a Full Court and, secondly, that substantial injustice would result if leave were refused upon the assumption that the decision is wrong.

4    It is therefore necessary to attend to the errors which were nominated. The first error was submitted to be at [30]-[31] of his Honour’s reasons. Those paragraphs were as follows:

30    As to the first of these matters [i.e. that Mr Foster is unable to afford legal representation], I note that [Mr Foster] had legal representation in this proceeding until 1 February 2012 when Mr Fisher filed a notice of ceasing to act. There is no evidence before me as to why Mr Fisher ceased to act in this proceeding, although Mr Fisher does act for [Mr Foster] in the contempt proceeding. What can be said is that, with full knowledge of the allegations made against him and the relief that is sought, and with the substance of the [ACCC’s] evidential case having been provided by affidavits and documents, [Mr Foster] has known since mid-February 2012 at the latest that it has been incumbent on him to procure, and if need be fund or procure funding for, any legal representation that he may require in relation to the hearing of this matter. Since mid-March 2012 he has known that the hearing was to commence on 3 September 2012.

31    [Mr Foster] has placed no evidence before me as to his present financial position or as to why he cannot procure funds for the representation he now seeks. I do note that [Mr Foster] currently has the benefit of legal aid in the contempt proceeding. I do not know the basis on which legal aid was sought or provided. I also note, however, that, in that proceeding, his counsel advanced the possibility that [Mr Foster’s] family members “might be able to put up security for the court to travel to the United Kingdom” to take evidence in that proceeding, although he expressed concern as to how that might affect [Mr Foster’s] entitlement to the legal aid that had been granted. Also, at the directions hearing before me on 2 July 2012, [Mr Foster] informed me that he had received counsel’s advice as to the likely length of the hearing and that “we are placing ourselves in funds so they [counsel] will be retained in the near future”: Transcript 2 July 2012 p 4 lines 13-17. Later in the directions hearing [Mr Foster] also expressed the hope that the money provided by his mother, as surety, might become available for his defence in this proceeding. In context, [Mr Foster’s] reference to “placing ourselves in funds” cannot reasonably be understood as a reference to the money paid into court by his mother as surety. He must have been referring to the contemplated availability of other funds. These matters throw into question the extent to which uncritical reliance can be placed on the assertion that [Mr Foster] is unable to fund, or at least procure funding for, legal representation in this proceeding.

5    The point which was sought to be made on Mr Foster’s behalf was that it was an error by his Honour to place upon Mr Foster, as the words of the last sentence at [30] might suggest his Honour had done, some onus to demonstrate an inability to obtain funding. This was said to be so for two reasons. The first was that, perhaps contrary to the first sentence of [31], there was in fact material before his Honour setting out the position of Mr Foster from a financial perspective. The second was that, to the extent that there was an insufficiency of money, that needed to be understood in a context which included the fact that all of Mr Foster’s assets and those of his close relatives had been the subject of freezing orders made at the Commission’s behest at the commencement of the proceedings.

6    I do not accept the first part of this submission. First, the freezing orders which were made at the commencement of the proceedings included, in the usual way, an ability for those orders to be varied in the event that that was needed. I do not accept, therefore, that they could operate, relevantly in the present context, as a disabling feature. Secondly, the transcript of the hearing which took place before his Honour on 2 July this year shows that, at least at that date, the difficulties of which complaint is presently made did not appear to be presenting themselves to the mind of Mr Foster. This is apparent from page 4 of the transcript for that day, which sets out, between lines 12 and 23, remarks by Mr Foster to his Honour in the following terms:

Yes, there were 16 witnesses in Queensland and they were heard in a very timely fashion but there are different proceedings, there are different issues and my counsel’s advice – although they are not retained at this stage but we are placing ourselves in funds so they will be retained in the near future – is that we need to budget for four and, perhaps, as much as five weeks. So on the issue of time, your Honour. I simply don’t believe there’s any likelihood that it will be concluded in two weeks. And, again, that’s based upon our experience in Queensland where everyone’s estimates were simply unrealistic. I have other issues in objection – I don’t know if you wish to hear them now, your Honour?

(Emphasis added.)

7    The important point, for present purposes, is the reference to Mr Foster both having obtained counsel’s advice and also being in a position to put himself – or, as he said, ‘ourselves’ – in funds in the near future.

8    The second aspect of the submission I also reject. Ms Johnson, who appeared for Mr Foster, indicated to me during her submissions that there was on the Court file an affidavit of Mr Foster which did set out his financial position, but the fact is that the affidavit was not in evidence before his Honour and the statement which appears at the beginning of [31] is a statement in terms about what was in evidence before the docket judge. That makes it impossible for me to identify what needs to be identified, having regard to Decor v Dart, which is error by the docket judge. In those circumstances I do not find that the congeries of difficulties which might collectively be called the first error suggest that the decision appealed from is attended by sufficient doubt to warrant the attention of a Full Court.

9    The second error upon which reliance was placed was at [36] of the docket judge’s reasons. There his Honour dealt with the position of a witness who Mr Foster wished to call in these proceedings. Of that witness, whose name was Mr Reichelt, his Honour said this:

Leaving aside the question of whether the Court can sit in this matter on [2 October 2012] (which it presently cannot), I am not presently persuaded that that course would be satisfactory. However, what the evidence does show is that, although his opportunities to do so are limited, Mr Reichelt is likely to be able to give evidence, by arrangement, well before December 2012. In the circumstances I have described, I am not persuaded that the limited availability of Mr Reichelt to give evidence, if permitted to do so, is a sufficient reason to adjourn the present hearing. I should add, once again, that the present hearing has been set down for some considerable period of time. [Mr Foster] has had ample opportunity to marshal the evidence on which he proposes to rely. The fact that Mr Reichelt is in prison plainly presents a difficulty in adducing his evidence, but that fact was known by [Mr Foster] and it does not present an insurmountable difficulty. It was for [Mr Foster] to make the necessary arrangements. He has been able to do so in the contempt proceeding. The present proceeding does not exist in a vacuum.

10    The submission which was developed was this: that the witness, Mr Reichelt, was currently detained in a prison in the United Kingdom; that the trial dates which have been fixed by the docket judge were for a period of two weeks, commencing on 3 September; and that the evidence which was before the docket judge showed that Mr Reichelt was only available at particular hours between 30 August and 3 September (no longer relevant), between 2 and 6 October and between 4 and 8 November. I should add, inferentially, that he is in all likelihood available also after 7 December when, as I understood it, he was likely to be released by the prison authorities.

11    The critical question here is a short one. If one accepts that the docket judge’s view of what was going to take place in the proceedings before him was that the trial would commence on 3 September and conclude 10 sitting days later, then the evidence would justify the conclusion that, by proceeding to hear the matter in that fashion, the evidence of Mr Reichelt might well be lost. The difficulty I have with that submission is the words in his Honour’s reasons ‘well before December 2012’. These indicate to me that the final question of whether and, if so, on what terms Mr Reichelt’s evidence was to be received is not one which the docket judge has yet resolved.

12    There is another reason why that would be so. Earlier case management orders made by Yates J presently have the effect that, unless some further order is procured, Mr Foster is not permitted to develop a positive case and hence to call Mr Reichelt. It will be a necessary pre-condition to the utilisation of Mr Reichelt’s evidence that Mr Foster first overcome that forensic barrier. It is only if that barrier is overcome that the question of whether and, if so, on what terms Mr Reichelt is to give his evidence becomes a question which matters. One possible playing out at trial of that question is that the application by Mr Foster to enlarge his procedural entitlement in that regard may fail. Another possibility is that it may succeed and, having regard to the fact, as the docket judge appears to have been cognisant, that Mr Reichelt has limitations in terms of his availability, there will then need to be a scheduling to take his evidence at other times.

13    This is particularly important because Yates J, as the docket judge, may be taken to be more familiar and astute to the procedural implications in terms of case management than an appellate court may be. This is a factor which the Full Court was at pains to underscore in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 where, at 279 [69], a bench comprising Keane CJ and Gilmour and Logan JJ said:

In the Federal Court, individual matters are allocated to the dockets of particular judges. The docket judge is charged with responsibility for the efficient management and determination of the cases within his or her docket. The extent to which an adjournment consequential upon an amendment of a pleading may adversely affect the due administration of justice in terms of a judge’s docket is an issue which that judge is peculiarly well-placed to determine. This Court should be slow to attempt to “second guess” the primary judge.

14    Of course, that was said in the context of an adjournment which was consequent upon the granting of an amendment, but I did not apprehend in their Honour’s reasons any reason why that principle would not apply to adjournments more generally. In the circumstances which therefore appear, where it seems to me that his Honour has in express terms contemplated at [36] the possibility of taking evidence from Mr Reichelt all the way through to December 2012, I find it impossible to embrace the proposition that his Honour has erred by, in effect, making Mr Reichelt’s evidence unavailable. In those circumstances I do not accept in relation to the second error that the decision of the primary judge is attended by sufficient doubt under Decor v Dart.

15    The third error which was put forward was the submission that, having regard to what fell from the High Court in Dietrich v The Queen (1992) 177 CLR 292, his Honour should have stayed the proceedings at least until Mr Foster had obtained access to a fund of money which he anticipated coming into his possession, or at least into his mother’s possession, upon the conclusion of certain contempt proceedings also before this Court. I am prepared to assume in Mr Foster’s favour that he has an anticipation of having access to some or all of those funds. I also accept that, as things presently stand, it is likely that he will be, if the adjournment application is unsuccessful, required to defend what are civil penalty proceedings against him and also that those civil penalty proceedings properly deserve the appellation ‘serious’.

16    The argument, as developed by Ms Johnson, accepted that the principle in Dietrich was one which was to be applied usually in criminal proceedings. She also accepted, correctly in my opinion, that ordinarily it has been accepted that the principle in Dietrich does not apply in civil proceedings. She developed a submission, however, that it had not been decided that the Dietrich principle could not apply in civil penalty proceedings. Such proceedings were to be viewed, on this submission, as, in effect, quasi-criminal proceedings. Having regard to the seriousness of the order sought (which in the case of Mr Foster was likely to result, in practical terms, to a lifetime ban from managing corporations), these proceedings were therefore to be viewed as serious. The nature of quasi-criminal litigation with serious consequences was, so she submitted, a situation to which the principle in Dietrich ought to be extended.

17    The difficulty with that submission, so it seems to me, is the Full Court’s decision in Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20. In that judgment, Sackville, Marshall and Lehane JJ had to consider precisely how it was that Dietrich interplayed with proceedings of a very serious kind but which nevertheless were not criminal in nature. Their Honours drew particular attention at 26 [23] to a passage in New South Wales v Canellis (1994) 181 CLR 309 at 328 where it was said that the principle established by Dietrich

is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation. As the majority judgments made clear, that principle is based on, and derives from, the accused’s right to a fair trial.

(Footnotes omitted.)

18    Consequently, as the Full Court noted in Nguyen, it was held in Canellis that the principle in Dietrich was not able to be extended to an inquiry under s 475 of the Crimes Act 1900 (NSW). Lander J drew upon those principles and other decisions in Australian Securities and Investments Commission v Reid (No 1) (2006) 151 FCR 540 to conclude that because a case was proceeding on pleadings under the rules, it followed that the Dietrich principle did not apply. His Honour placed particular reliance on this passage at 26 [24] in Nguyen:

As these passages show, there is nothing in the reasoning in Dietrich to suggest that the decision applies otherwise than to a court hearing a prosecution for a serious criminal offence under Commonwealth, State or Territory law.

19    It seems to me to follow from that that I could not accept that the Dietrich principle applies in a case which is, on any view, proceeding on ordinary civil pleadings. In those circumstances I do not accept that the third error is one which would justify a grant of leave to appeal. The appropriate order is that I dismiss the application for leave to appeal and I dismiss at the same time the various applications for interim relief.

20    I will order the applicant for leave to pay the costs of the first respondent.

Associate:

Dated:    3 September 2012