FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Chaste Corporation Pty Ltd (No 5) [2013] FCA 1111

THE COURT ORDERS THAT:

1.    The sum of $125,000 paid into court by Mrs Luigina Foster (also known as Mrs Louise Foster) on 15 December 2011, pursuant to a Deed signed by her that day as provided for by an order of the Court made on 7 December 2011, is forfeit to the Commonwealth of Australia with effect on and from 27 September 2013.

2.    Upon expiration of the period provided for under the Rules for an appeal against this Order, the District Registrar is to pay the sum of $125,000 presently in court funds pursuant to the surety to the solicitors for the Applicant to be paid by them into the consolidated revenue of the Commonwealth of Australia.

3.    The Respondent, Mrs Foster, pay the Applicant’s costs of and incidental to this application to be taxed or agreed.

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

REASONS FOR JUDGMENT

1        In 2011, the Australian Competition and Consumer Commission (the Commission) instituted proceedings charging the fourth respondent, Peter Clarence Foster, with contempt. Mr Foster came to be arrested and brought before the Court in respect of the charge. On 7 December 2011, I made orders which, inter alia, provided for his release from imprisonment pending the hearing and determination of the charge of contempt. One of the conditions of his release in the order was the provision by payment into court, or supported by a bank guarantee, to the satisfaction of the District Registrar, of a surety or sureties in the sum of $125,000 in a form set out in the schedule to the order.

2        The terms of Mr Foster’s release included, materially, that he attend and surrender himself into the custody of the Court as and when required by court order pending the hearing and determination of the charge. That was an obligation, the performance of which by Mr Foster, any surety or sureties were to assume. On 15 December 2011, Mr Foster’s mother, Mrs Luigina Foster, also known as Louise Foster, came to enter into a surety obligation in the terms provided for in the order, and by way of the payment into court of the sum of $125,000.

3        The charge made against Mr Foster was heard in 2012 and judgment was reserved. On 26 September 2013, an order of the Court was made which required Mr Foster, as anticipated by the release order of 7 December 2011, to attend and surrender himself into the custody of the Court at 2.15 pm on Friday, 27 September 2013. The Court’s order of 26 September 2013, apart from requiring notification forthwith of the solicitors for the parties of the requirement for Mr Foster’s attendance, also inter alios, required that the District Registrar cause a copy of the order to be sent to Mrs Foster in her capacity as surety. The registrar has furnished a certificate attesting to compliance by the registry with that requirement of notification of the Court’s order requiring Mr Foster’s attendance to Mrs Foster. The notification was sent by post and sent in a way which, on the evidence, is shown to have, in all likelihood, reached Mrs Foster, in the ordinary course of the post, the following day. There is no evidence to suggest that the notification was not received by Mrs Foster. Indeed, though she has been served with the Commission’s application for forfeiture, she has chosen, as is her right, not to appear today.

4        I am satisfied that Mr Foster failed to appear on 27 September 2013 as and when required. There can be no doubt that he was aware of the requirement to appear. Indeed, he chose to instruct those then acting for him to tender a letter to the Court in which he apologised for his non-appearance and offered, what seemed to him at least, a good explanation for not attending as required. There is no evidence of any endeavour by Mrs Foster to counsel or procure or otherwise use every endeavour to ensure compliance by her son with the requirement made of him by Court order to attend on 27 September 2013. Had there been such evidence, it would have been necessary to consider whether, in the circumstances, a reasonable endeavour had been made by the surety to ensure compliance with the condition concerned such that forfeiture should not be ordered: see, by analogy, Baytieh v State of Queensland [2001] 1 Qd R 1.

5        As it stands on the evidence, this is a case where a surety has been notified of the obligation of the person concerned to attend. The person concerned has not attended and no reasonable excuse is offered by or on behalf of the surety as to why that attendance was not procured or, for that matter, why there was no attendance. In these circumstances, I am satisfied that the case is one where there ought to be a forfeiture of the surety sum. Provision for a surety was a condition of release and Mrs Foster entered into the surety obligation deliberately so as to fulfil a condition of release. The occasion for providing for a surety sum is to provide an incentive on the part of the surety to procure compliance and, further, to provide an incentive on the part of the person subject to the attendance obligation to attend lest the surety be placed in just the jeopardy in which Mrs Foster finds herself. I shall make orders accordingly.

Associate:

Dated:    29 October 2013