FEDERAL COURT OF AUSTRALIA

Foster v Australian Competition and Consumer Commission [2013] FCA 1470

THE COURT ORDERS THAT:

1.    These proceedings be adjourned to 13 December 2013 at 10:15 am.

2.    The appellant appear before the Court on that day at Level 7, Harry Gibbs Commonwealth Law Courts Building, 119 North Quay, Brisbane in the State of Queensland, and that he not appear by solicitor, counsel or otherwise than by personal appearance, to show cause why his appeal should not be dismissed for want of compliance with the order of this Court of 26 September 2013.

3.    In default of personal appearance on 13 December 2013, the appellant is to show cause by his counsel why his appeal should not be dismissed for want of prosecution or as an abuse of process.

4.    The appellant pay the first respondent’s costs of today.

5.    There be liberty to apply.

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

REASONS FOR JUDGMENT

1    This case has its genesis in orders made by Lander J on 2 September 2005, by virtue of which the present appellant (“Mr Foster”) was restrained from engaging in certain conduct which would have infringed the provisions of the Trade Practices Act 1974 (Cth) (the “TP Act”). Subsequently the present respondent, (the “ACCC”), formed the view that Mr Foster was in breach of those orders and applied to this Court for the issue of a warrant pursuant to r 42.14 for his apprehension and detention, so that he could be dealt with for contempt of court. On 11 November 2011 Jacobson J issued such a warrant. On 7 December 2011 Mr Foster was arrested and brought before Logan J in Brisbane.

2    Pursuant to an order made on 7 December 2011, he was released pending the hearing and determination of the contempt charge, conditional upon the provision of a surety and further, that he attend and surrender himself into the custody of the Court as and when required by the Court. On 26 September 2013 Logan J ordered that Mr Foster attend and surrender himself into the custody of the Court at Level 7, Commonwealth Law Courts, 119 North Quay, Brisbane, at 2.15 pm on Friday, 27 September 2013, the day upon which his Honour proposed to deliver his reasons for judgment in connection with the contempt proceedings. That Mr Foster did not appear in answer to the order is beyond dispute. On that day his Honour ordered that Mr Foster show cause why the surety should not be forfeited and invited relevant parties to file material in support of any application which they might wish to make.

3    At the same time, his Honour adjourned the hearing of the charges to 24 October 2013, effectively for the purpose of fixing penalty. His Honour also discharged the order for conditional release which had previously been made and issued a warrant for Mr Foster’s arrest. His Honour ordered that the warrant lie in the registry until 5.00 pm on that day, presumably to give Mr Foster an opportunity to surrender himself. He did not do so and has not since done so. His only explanation has been an assertion that he wants to make arrangements for the care of his mother, an explanation which, whilst it may be laudable in its sentiments, is no explanation of his failure to answer to the Court’s order. Further, it is not supported by any evidence regarding his mother’s condition.

4    On 24 October 2013, his Honour proceeded to sentence Mr Foster. His Honour ordered that he be imprisoned for a period of three years, with the first 18 months to be served in any event. His Honour ordered that a period of 27 days served in custody, between 18 November and 15 December 2011, count as part of that minimum period. Further warrants were issued for his apprehension and detention. These warrants have not been executed. On 5 November 2013 Mr Foster, by his solicitors, filed a notice of appeal against the penalty, alleging that the sentencing discretion had miscarried. The matter was then listed before me. As senior Judge in this registry, I am responsible for listing.

5    At a hearing on 8 November 2013, I raised the question of Mr Foster’s entitlement to be heard, given his clear contempt. After some discussion, counsel indicated that ACCC intended to apply to the Court for orders dealing with Mr Foster for his contempt, and also for a stay of proceedings on the appeal. Before me now is an interlocutory application filed by ACCC, seeking that the proceedings on appeal be stayed for a period of 28 days from today’s date, and that the appellant be directed to purge his contempt by appearing in person and “submitting himself into the custody of the court”. I am also asked to order that, in the event of his failing to purge his contempt in one of the contemplated ways, the appeal be dismissed. The application addresses non-compliance with both the order made on 26 September 2013 and that made on 24 October 2013. In the course of argument today, counsel for ACCC agreed that the matter should proceed in connection with failure to comply with the order of 26 September 2013, that being the order compelling Mr Foster’s attendance for the purpose of receiving his Honour’s decision as to the alleged breaches of the orders made by Lander J. Clearly enough, the intention was that when he attended on that day, in the event that the charges were found proven, he would either be detained in custody, pending the determination of an appropriate penalty, or released, upon conditions designed to meet the circumstances then existing, in particular, that the charges of contempt had been found to be proven.

6    As I have said, there can be no doubt that Mr Foster failed to comply with a condition of the order pursuant to which he was released from custody pending the determination of the charges against him. There can also be no doubt that no proper explanation has been offered for his failure to do so. I have heard counsel on behalf of Mr Foster, both today and at the previous hearing, although I have considerable doubts about the appropriateness of having done so. It is quite clear to me that Mr Foster is using his capacity to instruct counsel as a basis for opposing the relief sought by ACCC. Such conduct can only be described as an abuse of process. Clearly, he knows that he is obliged to surrender himself into custody and has chosen not to do so.

7    Of particular importance in considering the appropriate course to be followed is the decision of the Court of Appeal in Hadkinson v Hadkinson [1952] P 285, where Romer LJ (Somervell LJ concurring), said:

It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. “A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it…. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.” (Per Lord Cottenham LC in Chuck v Cremer)

8    Romer LJ continued:

Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the court by such a person will be entertained until he has purged himself of his contempt. It is the second of these consequences which is of immediate relevance to this appeal. The rule, in its general form, cannot be open to question. There are many reported cases in which the rule has been recognized and applied, and I need refer only to Garstin v Garstin and Gordon v Gordon. No attempt, indeed, was made before us by [counsel], on behalf of the mother, to challenge the rule itself; he sought only to bring the present case within one of the exceptions to which the rule is undoubtedly subject.

9    His Lordship continued:

One of such exceptions is that a person can apply for the purpose of purging his contempt and another is that he can appeal with a view to setting aside the order upon which his alleged contempt is founded; neither of those exceptions is relevant to the present case. A person against whom contempt is alleged will also, of course, be heard in support of a submission that, having regard to the true meaning and intendment of the order which he is said to have disobeyed, his actions did not constitute a breach of it; or that, having regard to all the circumstances, he ought not to be treated as being in contempt. The only other exception which could in any way be regarded as material is the qualified exception which, in some cases, entitles a person who is in contempt to defend himself when some application is made against him.

10    His Lordship continued:

I would add in passing that an apology is no acceptable substitute for compliance with an order and will not in any circumstances be regarded in itself as a purging of contempt.

11    Lord Denning said:

I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.

12    To my mind, this case falls within both the approach taken by the majority in that case and that taken by Lord Denning. It is quite clear that Mr Foster is seeking to avoid the effect of the orders made by the Court at the same time as he seeks to invoke its appellate procedure. Nobody challenges his right to be heard by way of appeal against the severity of the sentence, but by invoking the appellate jurisdiction of the court, he inevitably subjects himself to the jurisdiction of the court. In those circumstances, the natural corollary is that he must comply with the outstanding orders.

13    His counsel has sought to resist any stay upon the basis that the formal procedures prescribed in the rules for dealing with contempt have not been observed. That argument is effectively answered in the submissions made on behalf of ACCC. The process identified in Hadkinson is effectively a question of case management. See Stokes (by a tutor) v McCourt [2013] NSWSC 1014, Young v Jackman (1986) 7 NSWLR 97 at 101, and KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 206. It is not necessary that the processes prescribed for dealing with the contempt by way of punishment be complied with in order that the Court exercise its authority over its own process by preventing an abuse of such process.

14    I am, however, presently reluctant to dismiss the proceedings for want of prosecution or non-compliance with the Court’s order. Mr Foster has a statutory right of appeal. Although the court may regulate and supervise the way in which that right is exercised, it cannot frustrate the statutory right. However, if it becomes obvious that Mr Foster is not willing to do that which must be done in order to prosecute the appeal, then the questions of want of prosecution and abuse of process may arise. In the circumstances, I propose to accede to ACCC’s application for an order that the matter be stayed for a period of 28 days.

15    I adjourn the hearing of the application to 13 December 2013. I order that the appellant, Peter Clarence Foster, appear before me on that day at level 7, Harry Gibbs Commonwealth Law Courts Building, Brisbane in the State of Queensland, and that, at least in the first instance, he not appear that day by solicitor, counsel or otherwise other than personal appearance. He is on that day to show cause why the appeal should not be dismissed, given his failure to comply with the order of the Court made on 26 September 2013. In default of his personal appearance on that day, he is to show cause by his counsel or otherwise as to why the appeal should not be dismissed for want of prosecution or as an abuse of process.

16    I order that the appellant pay the respondent’s costs of today. I give the parties liberty to apply.

Associate:

Dated:    31 March 2014