FEDERAL COURT OF AUSTRALIA

Foster v Australian Competition and Consumer Commission [2014] FCA 240

THE COURT ORDERS THAT:

1.    Peter Clarence Foster surrender himself into the custody of the Registrar, any District Registrar or Deputy District Registrar of the Federal Court of Australia, wheresoever located in Australia, or to the Sheriff or a Deputy Sheriff of the Court, wheresoever located in Australia, or to any officer of the Australia Federal Police or a State or Territory police force or service on or before 4.00 pm on the 25th day of March 2014;

2.    upon such surrender, the person to whom he so surrenders forthwith advise the District Registrar of the Federal Court of Australia at Brisbane, by telephone, of such surrender;

3.    in default of such surrender on or before the said time and date, the appeal herein stand dismissed;

4.    the said appeal otherwise be stayed until 4.00 pm on the 25th day of March 2014;

5.    unless the said Peter Clarence Foster does surrender himself in accordance with the above order, he pay the costs of the Australian Competition and Consumer Commission of and incidental to the appeal, including the costs of and incidental to the application for dismissal of the appeal;

6.    in the event that the said Peter Clarence Foster does surrender himself in accordance with the above order, all questions of costs be reserved; and

7.    the parties have liberty to apply as they may be advised.

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

REASONS FOR JUDGMENT

HISTORY

1    On 2 September 2005, in Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212, Lander J made certain orders. The present appellant (“Mr Foster”) was a respondent to those proceedings. Pursuant to O 27 he was “ … restrained for five years … , from being … concerned in the promotion or conduct by a corporation of any business relating to weight loss, cosmetic or health industry products or service of any kind.” In late 2011 the present respondent (“ACCC”) considered that Mr Foster had breached the terms of the injunction. It applied to Jacobson J in the Sydney Registry for an order that he be arrested and brought before the Court. On 11 November 2011 his Honour made such an order pursuant to r 42.14 of the Rules of Court. There has been no challenge to the validity of the order. On or before 21 November 2011, the warrant was executed. On 22 November 2011, Mr Foster appeared before Logan J in Brisbane. The matter was transferred to the Queensland Registry. Logan J stayed the existing warrant and issued a further warrant for Mr Foster’s continued detention until 28 November 2011. His Honour also gave directions concerning the subsequent conduct of the matter. On 28 November 2011 Logan J gave further directions, stayed the warrant dated 11 November 2011 and issued a further warrant authorizing Mr Foster’s detention until 7 December 2011.

2    On 7 December 2011 Logan J made various orders, including an order staying the warrant issued on 28 November 2011 until further order. His Honour issued a further warrant for Mr Foster’s extended detention pending the hearing and determination of the contempt proceedings brought by ACCC, or until such time as a surety was provided as a condition for his release. Such release was also to be conditional upon his attending and surrendering himself into the custody of the Court, as and when required by the Court to do so. There were other conditions. The relevant surety was provided, and Mr Foster was released. The order of 7 December 2011 was varied by order dated 19 February 2013, but the variations are of no present relevance.

3    In the contempt proceedings before Logan J, Mr Foster was represented by solicitors and counsel. By 26 September 2013 Logan J was ready to publish his decision and reasons. On that date his Honour made an order pursuant to the orders made on 7 December 2011 as subsequently varied. The order of 26 September 2013 required that Mr Foster attend and surrender himself into the custody of the Court on Friday, 27 September 2013. The contempt proceedings were listed for judgment on that day. The District Registrar was directed to notify the solicitors for the parties accordingly, and to provide them with copies of the order. Copies of the order were also to be sent to the Commissioner of the Australian Federal Police, the Commissioner of the Queensland Police Service, the Officer-in-Charge of the Queensland Police Service at Southport and Mrs Luigina Foster, the surety for Mr Foster’s appearance. Mr Foster did not surrender himself into the custody of the Court on 27 September 2013. He rather instructed his counsel to hand a letter to Logan J. The letter is dated 27 September 2013 and addressed to his Honour. It reads:

Dear Justice Logan,

I apologise to you that I am not able to appear before your Court today. I was only advised late yesterday that this would be required and it came as a surprise and shock that I would be allowed no time to prepare me and my family for your decision.

I understand the prosecution has now proposed, completely falsely, that I was planning to flee the jurisdiction despite the fact that I would never abandon my mother, especially in her frail state of health, and have not been in custody since the trial, and could have absconded at any time. I feel that this was deliberately done to create pressure on me and to adversely influence the Court and provide the press with further sensationalism in respect of me.

In respect of the charges against me, I was not knowingly in contempt of the business prohibitions imposed on me, but am also aware of the implications of the adversarial legal system, especially where someone with my media profile and 'notoriety' is concerned.

I wish you to know that my non-appearance is solely based on my desire to make suitable arrangements for the proper care for my mother in the event that I am convicted and a custodial sentence is imposed.

Only a few weeks ago, my mother had another heart attack at 6 a.m. I was at home and she said she was very tired and wanted to go back to bed thinking she was just getting the flu. I insisted she be immediately taken to hospital where an emergency stent was inserted which saved her life. The doctors told me that had I not been there and done that, she would certainly have not survived. My sister also lives with us but her state of health is also such that she is completely incapable of acting as carer for our mother. This places a heavy responsibility on me.

In view of the continued persecution of me and false allegations being made by the prosecution, I would ask that you adjourn your handing down of a decision for a further short period or allow me to remain with my mother pending sentencing and in order to allow me to arrange carers or have my mother placed in a suitable medical facility where I can be sure she will be looked after properly.

I have diligently complied with all reporting requirements of my bail since the trial and were it not for my mother's recent further serious heart problems I would have appeared today as I am not concerned for my own fate, only her welfare. I will voluntarily submit to your Judgement and penalties, if any, as soon as I know my mother is being properly cared for as I wish to put this whole matter behind me as soon as possible.

Now that my former counsel Mr Paul Smith has gone to the Bench, I have been able to retain David Bennet QC who is prepared to act for me pro bono in respect to any submissions that may be required for penalty should I be convicted. He understands better than most my history and the relentless persecution of me, given that he once prosecuted me.

He is in hospital today having had surgery but has advised he is available on the following dates:

•    8th to 10th October

•    24th October

•    25th October

•    28th October

•    30th October

•    1st November

•    6th November

•    7th November

•    11th to 15th November

•    18th to 22nd November

Again, I apologise for my non-appearance today, thank you for the trust you have placed in me, but I simply do not feel I can yet again face the prosecution's and no doubt the media's barrage of false accusations without doing whatever I can to spare my mother further possibly critical stress in her present condition.

Yours very sincerely and respectfully,

Peter Foster

4    Notwithstanding Mr Foster’s failure to appear, Logan J delivered his reasons for concluding that the alleged contempt (arising out of the orders dated 2 September 2005) had been established. His Honour then adjourned the matter to Thursday 24 October 2013 for submissions as to appropriate orders, penalties and costs. That date had been nominated by Mr Foster as a date upon which his chosen counsel would be available. His Honour also effectively revoked that part of the order made on 7 December 2011 which related to Mr Foster’s release and ordered that a warrant issue for his arrest. His Honour ordered that the arrest warrant lie in the Registry until 5.00 pm on 27 September 2013, presumably to afford Mr Foster a further opportunity to surrender himself into custody. His Honour also ordered that a fresh warrant issue for his imprisonment, “initially at the Southport Watchhouse (or such other police facility as may be determined by his arresting officer) and as soon as conveniently possible thereafter, at the Arthur Gorrie Correctional Centre or such other Queensland corrective service establishment as the Chief Executive of Corrective Services may in his discretion decide in writing to appoint …”.

5    On 24 October 2013 Mr Foster did not appear in person. However counsel appeared in order to seek leave to withdraw, upon the basis that he and his instructing solicitors were without instructions upon which they were willing to act. Counsel confirmed that Mr Foster was aware that the matter was to proceed on that day but could not provide a new address for service. After leave to withdraw was granted, counsel for Mr Foster tendered a folder containing a letter addressed to Logan J and dated 24 October 2013, together with submissions concerning sentence and information concerning allegedly comparable sentences. In the letter Mr Foster asserted that he had mistakenly thought that the matter had been adjourned to 28 October rather than 24 October 2013, and that his chosen counsel was no longer available on the earlier date. He did not explain how he came to believe that the hearing was adjourned to 28 October, save to refer to a newspaper report which suggested that he had said that he would surrender himself to the Court on that date. He made no attempt to justify his failure to appear on 24 October, given that whatever misunderstanding he may have laboured under, by 24 October he knew that the matter was listed for hearing on that day. His Honour “decided to hear submissions in respect of penalty from the Commission and to proceed to judgment in respect of penalty and related issues”.

6    His Honour formally recorded his findings concerning the alleged contempt (arising out of the orders made on 2 September 2005) and ordered that Mr Foster be imprisoned for a period of three years, the first 18 months to be served in any event. Mr Foster had served 27 days’ imprisonment between 18 November and 15 December 2011, this being the period between his original arrest pursuant to the order of Jacobson J and his release pursuant to the order made by Logan J. This time was to count as time already served as part of the minimum period of imprisonment. The balance of the sentence (that is, other than the 18 months to be served) was to be suspended for a period of three years commencing upon his release, on conditions as to his conduct during that three year period. Mr Foster was ordered to pay ACCC’s costs of the proceedings. On 24 October 2013 Logan J also discharged existing arrest and imprisonment warrants and issued fresh warrants for his arrest and committal to prison. His Honour ordered forfeiture of the $125,000 paid into Court by Mrs Luigina Foster by way of surety, and that she pay the costs of the application for forfeiture.

7    Mr Foster remains at large. Towards the end of October 2013 and in early November 2013 there was some suggestion in the press, allegedly based upon statements by him, that he had left Australia and gone to Fiji. I have been provided with evidence of such press reports. I do not draw any inference from them. On 5 November 2013 Mr Foster filed a notice of appeal against the sentence imposed upon him, alleging that:

    the Court acted on evidence which was irrelevant to the charge of contempt;

    the Court acted on evidence which was inadmissible and put before the Court in a way which was not authorized or permitted by law;

    the Court took account of matters that were not supported by evidence; and

    the sentence is manifestly excessive.

8    As senior Judge in the Brisbane Registry of the Court I have some responsibility for the management and listing of appeals in this Registry. In that context, and being aware of the fact that Mr Foster remained at large, I listed the appeal for mention before me on 8 November 2013. On that date counsel appeared for him. I raised his failure to surrender himself into custody as a possible bar to his being permitted to prosecute his appeal. ACCC indicated that it proposed to apply to the Court for a stay of the appeal proceedings.

ACCC’S APPLICATION

9    On 12 November 2013 ACCC filed an interlocutory application seeking:

    a declaration that Mr Foster was in contempt of orders of the Court made on 26 September and 24 October 2013;

    an order that the appeal be stayed for a period of 28 days expiring on 13 December 2013;

    an order that Mr Foster purge his contempt on or before that date, by either appearing in person and submitting himself into the custody of the Court, or by presenting himself for arrest to a member of the Australian Police Force, the Queensland Police Force or some other police force; and

    an order that in the event of non-compliance with “order 3”, the appeal be dismissed without further order or hearing.

10    The third proposed order relates to the stay. The fourth proposed order relates to purging contempt. The reference to “order 3” is probably erroneous, and should be read as referring to “order 4”.

11    The interlocutory application was made returnable on 15 November 2013. On that date, Mr Foster did not appear but was again represented by counsel. Notwithstanding his clear failure to comply with the order of 26 September 2013, I was concerned at the prospect of dismissing Mr Foster’s appeal, and thereby terminating his statutory right of appeal. The Court may regulate and supervise the way in which that right is exercised but cannot deprive him of it, at least until such time as it becomes obvious that Mr Foster is not willing to do that which must be done in order to prosecute the appeal. In those circumstances I acceded to ACCC’s application for an order that the appeal be stayed for a period of 28 days and otherwise adjourned the hearing of the application to 13 December 2013. I ordered that:

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.

I further ordered that Mr Foster pay ACCC’s costs of the hearing on 15 November 2013.

FURTHER PROCEEDING BY A CONTEMNOR

12    The principal question in issue is:

    whether an appellant may invoke the appellate process or prosecute an appeal where he or she is in contempt of an order of the Court; or

    whether in those circumstances, the Court has a discretion to prevent the commencement or prosecution of an appeal.

The alternative questions reflect the diverging approaches taken by members of the Court of Appeal in Hadkinson v Hadkinson [1952] P 285. In that case a divorced woman had custody of a child of the marriage, a boy aged 13 years. However a court had ordered that he not be removed from the jurisdiction without its sanction. There was an informal arrangement between the boy’s parents that the father have reasonable access to the child, and that the boy spend parts of the school holidays with each of them. After the decree became absolute the mother married a man who lived in Australia. In December 1951, without informing the father or his solicitors of her intention, and without applying to the court for an appropriate order, she took the child to Australia. The father applied for an order directing her to return him to the jurisdiction, and into the care of a named man. Such an order was made. The mother failed to comply with the order but sought to appeal against it. The father took the preliminary point that as she was in contempt of the original order she could not, whilst she remained in contempt, pursue the appeal. At 288 – 289 Romer LJ said (Somervell LJ concurring):

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.)

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.

At 289 – 290 his Lordship identified exceptions to the rule as follows:

Is this case, then, an exception from the general rule which would debar the mother, as a person in contempt, from being heard by the courts whose order she has disobeyed? 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 … . The nature and limits of this exception were explained by this court in Gordon v Gordon. …

His Lordship then set out the facts of that case and continued:

The court entertained her appeal on grounds which Vaughan Williams LJ expressed as follows: “Taking it generally”, he said, “it has not been disputed in the discussion before us that this rule, that a person who is in contempt cannot be heard, prima facie applies to voluntary applications on his part–when he comes and asks for something; and not to cases in which all that he is seeking is to be heard in respect of matters of defence. I do not for one moment suggest that every matter of defence entitles a person in contempt to be heard; for instance, if an order has been made in the exercise of the discretion of the court, and some one who is oppressed, or thinks himself oppressed, by that order, appeals, saying that the court has exercised its discretion wrongly, that person if he is in contempt cannot be heard to say anything of the kind until he has purged his contempt.” Cozens-Hardy LJ, in concurring, limited his judgment to a case in which the party in contempt “is saying that the order complained of is outside the jurisdiction of the court as distinguished from the case of an order which, although it is within the jurisdiction of the court, ought not, it is said, to have been made.”

Having regard to the nature of this exception to the general rule it was sought before us to bring the mother in the present case within it. It was represented that the summons … was one in which the father was asking that an order should be made against her; that accordingly, and notwithstanding her contempt, she was entitled to appear in order to resist the application; and that she is equally entitled to appear before this court and appeal against the order which the learned judge thought proper to make. In my judgment, this suggestion is untenable and fallacious. Assuming for the moment that all that the appellant is seeking to do before us is to adopt a defensive role, she is in fact appealing against an order which was made against her in the exercise of the discretion of the court and is thus within the exception to the exception (if one may so describe it) which Vaughan Williams LJ envisaged in Gordon v Gordon.

His Lordship continued:

Apart altogether from that, however, she is not, in my judgment, within the exception at all; and this for two reasons. First, the father was not, by his summons, asking the court to grant relief against the mother of a description which had not been granted before; all that he was asking for was a supplementary order for enforcing an order that had already been made. Secondly, the mother was not merely resisting the making of this supplementary order but was in effect seeking to utilize the father’s application for the purpose of discharging or varying the previous order–an order against which she had not appealed and indeed could not have appealed, for she had obtained it herself.

13    Denning LJ (as his Lordship then was) took a somewhat different approach, observing at 295 that:

No matter how badly a litigant has behaved, nevertheless, generally speaking, if he has a right of appeal, he has a right to be heard; for the simple reason that, if he is not heard, his right of appeal is valueless.

14    Having considered the historical treatment of this problem at common law, in Chancery and in the ecclesiastical jurisdiction his Lordship observed at 298:

Those cases seem to me to point the way to the modern rule. It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave consideration of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance. In this regard I would like to refer to what Sir George Jessel MR said in a similar connexion … “I have myself had on many occasions to consider this jurisdiction, and I have always thought that, necessary though it be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men’s rights, that is, if no other pertinent remedy can be found. Probably that will be discovered after consideration to be the true measure of the exercise of the jurisdiction.”

Applying this principle 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.

15    In England Lord Denning’s view appears to have prevailed. In X Limited v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 Lord Bridge of Harwich said, concerning the decision in Hadkinson at 46 - 47:

I cannot help thinking that the more flexible treatment of the jurisdiction as one of discretion to be exercised in accordance with the principle stated by Denning LJ better accords with contemporary judicial attitudes to the importance of ensuring procedural justice than confining its exercise within the limits of a strict rule subject to defined exceptions. But in practice in most cases the two different approaches are likely to lead to the same conclusion as they did in Hadkinson itself … .

Certainly in a case where a contemnor not only fails wilfully and contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court’s authority if the order should be affirmed on appeal, the court must, in my opinion, have a discretion to decline to entertain his appeal against the order.

Lord Oliver of Aylmerton said at 50 – 51:

First, it is suggested that to decline to hear an appellant who is in contempt infringes the maxim “audi alteram partem” which lies at the root of every civilised system of law. A person whose very liberty is threatened by an order made against him ought, it is said, to have an absolute right to appeal against the very order that has put him in contempt. For my part, I think that this is too facile an analysis. The maximum “audi alteram partem” means not that a party has an absolute right in all the circumstances to be heard in his own defence but that he must be given a proper opportunity to be heard. So long as that opportunity is given upon terms with which the proposing appellant can reasonably comply, there is not and there should not be any impediment in principle to the imposition by the court of proper conditions which require to be complied with before the appeal is heard. It is no denial of justice, for instance, to strike out the pleading of a litigant who contumaciously fails to comply with interlocutory orders, so that the action goes by fault, or to impose a condition of bringing money into court as the price of giving leave to defend or even, in an appropriate case, of appealing. So I cannot, for my part, see why it should be considered a denial of justice to make it a condition of appealing that a litigant subject to an order should, before appealing, comply with the order to an extent which does not compromise his position in the event of his appeal succeeding. Whilst, therefore, there must clearly be a strong indication in favour of preserving a litigant’s right to appeal, even though he may be in contempt of court, I am in entire agreement with my noble and learned friend Lord Bridge of Harwich in thinking that there must also be a discretion to refuse to hear the contemnor and in favouring the flexible approach suggested by the judgment of Denning LJ in Hadkinson v Hadkinson … . One can, of course, envisage, as he did in that case, circumstances in which the court would be unlikely to exercise its discretion in favour of hearing a contemnor–he instanced the case of an abuse of the process or of disobedience to the order impeding the course of justice–but I would not be in favour of laying down any rules for the exercise of discretion, though it can do no harm to give examples which may serve as guidelines. For instance, where the appeal is grounded on an alleged lack of jurisdiction to make the order at all, it would seem, in general, right that the contemnor should be heard. At the other end of the scale, if the contempt consisted of a contumacious refusal to reveal the whereabouts of a ward of court, it would be likely to require a strong case before the court would consider entertaining a contemnor’s appeal.

16    In Australia the decision in Hadkinson has been treated in different ways. In Permewan Wright Consolidated Pty Ltd v Attorney-General (1978) 35 NSWLR 365 Reynolds JA said at 367:

Whilst no doubt a court may properly withhold relief to which a litigant is otherwise entitled in cases where that litigant is in contempt of the court’s process, even assuming in this case that breaches of the court’s order between the dates mentioned and made out and are continuing, that would not be a matter which should preclude the making of the particular order sought here. The contempt since 17 November is not of a serious order, and the order now sought is designed to avoid an undesirable conflict between the present state of the law and a subsisting order of this Court.

This passage suggests the approach adopted by Lord Denning in Hadkinson. However, at 369 Hutley JA recognized the divergence of opinion between Somervell and Romer LJJ, on the one hand and Lord Denning, on the other. His Honour preferred the former opinion. Mahoney JA also appears to have adopted the majority view (at 374). In Young v Jackman (1986) 7 NSWLR 97 Young J considered that the decision in Permewan Wright bound him to adopt the majority view in Hadkinson. His Honour also referred to an earlier decision of the Full Court of the Supreme Court of New South Wales in Burnett v Burnett (1903) 3 SR (NSW) 513. In that case, after a decree of dissolution of marriage had become absolute, the respondent wife petitioned for an order granting her access to a child of the marriage. The petition was dismissed with costs. She subsequently filed a similar petition on the same facts. Objection was taken to the hearing of the petition on the ground that the costs of the previous petition had not been paid. The objection was overruled. On appeal to the Full Court, the petitioner submitted that as the original order of the court (directing her to pay the costs) had not been shown to her, she could not be found to be in contempt. Owen J said at 514 - 515:

That might be a good argument if this was an application for attachment, but being a matter of contempt for disobedience to an order of the Court the fact that the petitioner had actual knowledge of the order having been made is in my opinion sufficient. It is perfectly clear that she was personally aware of the order made by the Court, the nature of the order, and that she was liable to pay the costs. I am quite clear that she is in contempt.

Walker J said at 515:

This is not an application to attach the petitioner, or our decision might have been different. It is a matter of contempt for disobedience to an order of the court. For that purpose the only question is–Is the petitioner in fact in contempt? This does not involve the liberty of the subject. From the facts it is clear that the petitioner knew she had to pay the costs, and in my opinion that is all that is necessary.

17    In Young v Jackman, Young J considered that Burnett bound him to follow that approach which was, as it happened consistent with that subsequently taken by the majority in Hadkinson.

18    It seems that the Full Court of the Family Court has, in a number of cases adopted Lord Denning’s approach. See, for example, A v Z (2006) 198 FLR 152 at [79]. In some circumstances, this divergence of views amongst Australian appellate courts might be embarrassing for a Judge at first instance. The majority view in Hadkinson is well-established and is consistent with the earlier view in Burnett which was, itself, in the matrimonial jurisdiction. On the other hand, Lord Denning’s discretionary approach has been adopted by the House of Lords and is, in some ways, more consistent with the flexible approach currently taken to case management. It may be that the significance of the divergence is minimized by the importance which must be given, in applying the discretionary approach, to the rights of the innocent party and the importance of protecting the integrity of the judicial system.

19    Mr Foster’s counsel submits that formal proceedings for committal for punishment for contempt is a necessary condition precedent to there being an impediment to the commencement and prosecution of his appeal. The cases seem generally to be inconsistent with this submission. Burnett, Young v Jackman and Hadkinson suggest otherwise, as does the decision in Stokes (by a tutor) v McCourt [2013] NSWSC 1014. In that case Lindsay J concluded that he was bound by the view of Hadkinson taken by the Court of Appeal in Permewan Wright. At [44] his Honour observed that the operation of “the rule”, was not conditional upon formal steps having been taken or foreshadowed for prosecution of the contemnor for contempt.

20    Counsel for Mr Foster also submits that the rule applies only to further proceedings in the suit or action in which the contempt occurred. In Burnett, the fresh proceedings were pursuant to a second petition. The Court held that the proposed proceedings were in the same suit, notwithstanding a different heading. Both proceedings were in the matrimonial jurisdiction and bore the same identifying number. Counsel for Mr Foster submits that the appeal proceedings are not in the same proceedings as those in which the order of 26 September 2013 was made. See also Short v Short (1973) 7 SASR 1 at 11.

the hearing

21    At the hearing on 13 December 2013 Mr Foster did not appear but was again represented by counsel.

ACCC’s Submissions

22    ACCC concedes that any limitation upon Mr Foster’s right to prosecute his appeal depends upon the appeal being in the same proceedings as his contempt. That proposition is said to flow from the decision of the Full Court of the Supreme Court of South Australia in Short. As I have pointed out, it also emerges from the decision in Burnett. ACCC submits that an appeal against a sentence of imprisonment is in the same proceedings as the sentence, or has a sufficiently close connection to be considered to be part of the same proceedings as those in which the sentence was passed. ACCC then submits that none of the exceptions to the “Hadkinson principle” applies in the present case. It submits that Mr Foster does not challenge the underlying findings of Justice Logan as to his contempt.

23    ACCC also points out that whilst there may be an exception to the general rule, where a person seeks to appeal against the very order in respect of which he is in contempt, that exception does not apply where the appeal can, itself, be seen to be an abuse of process. This proposition is, to some extent, based upon observations made by Brandon LJ in Astro Exito Navegacion S.A. v Southland Enterprise Co Ltd (The Messiniaki Tolmi) [1981] 2 Lloyd’s Rep 595 at 602. That passage was cited by Lord Bridge in X Ltd. However, as his Lordship preferred Lord Denning’s approach to the whole question, he concluded that there was a discretion to hear an appeal when the appellant was in contempt of the order under appeal. In fact, in Hadkinson itself, Romer LJ at 290 – 291, appears to have accepted the approach taken in Gordon v Gordon [1904] P 163 that:

    an appeal on the basis of lack of jurisdiction to make the original order might proceed notwithstanding the fact that the appellant was in contempt of the order;

    but when the appeal is from an order within jurisdiction, the appeal might be stayed.

24    In the present case, there is much to be said for the proposition that in any event, Mr Foster has not demonstrated any convincing basis for believing that he will comply with any order made on appeal. Hence it would seem that the appeal is, itself, an abuse of process. In any event, none of this has any relevance to his failure to comply with the order of 26 September 2013 against which there is no appeal.

25    ACCC also refers to certain American cases, namely Smith v United States 94 US 97 (1876) and Molinaro v New Jersey 396 US 365 (1970), both decisions of the United States Supreme Court. They suggest a much more draconian rule than that advanced in Hadkinson. To similar effect is the decision in Perry v State of Mississippi 13 So.3d 627 (Miss. App. 2013).

26    In summary ACCC submits that Mr Foster appeals from the severity of the sentence imposed in connection with his breach of the orders made by Lander J. The material demonstrates that he is aware of the order (that he appear on 27 September) but has not surrendered himself as required by that order. ACCC submits that the appellant is seeking to interpose his legal advisers between himself and the Court in order to pursue his appeal, whilst avoiding the consequences of his failure to comply with the orders of the Court. ACCC submits that the appeal should now be dismissed.

Submissions on behalf of Mr Foster

27    In summary counsel submits that:

    the contempt proceedings have not been properly instituted;

    there has been no finding that Mr Foster is guilty of any contempt as a result of his response to the order made on 26 September;

    any contempt occurred in proceedings other than the appellate proceedings; and

    the appeal should be heard and determined or, at worst, stayed until Mr Foster presents himself to the Court.

MAY MR FOSTER PROSECUTE HIS APPEAL?

28    ACCC’s case is quite simple. Primarily, it asserts that Mr Foster has not complied with the order made on 26 September 2013. Although ACCC also relies upon his failure to submit to the order for imprisonment made on 24 October 2013, in argument it relied primarily upon Mr Foster’s failure to surrender himself into custody as required by the order of 26 September 2013. There may be some doubt as to whether Mr Foster is in contempt of the orders dated 24 October 2013. They do not direct Mr Foster to do anything. No doubt he would have been obliged to submit to the execution of the warrants, had he been served with them. There may be a respectable argument for the proposition that if he were deliberately to avoid service of the warrants upon him, he would be in contempt. I do not understand that argument to have been advanced in these proceedings. I note that in Australian Securities Commission v Macleod (unreported, Drummond J, 23 November 1994) Drummond J appears to have proceeded upon the basis that the relevant contemnor was in contempt by virtue of the fact that he had not “served the sentences then imposed”. His Honour observed that:

He has left Australia in circumstances that show that he intends to avoid purging his contempt, which he can do either by serving the sentences or by making a successful application for discharge under O40 r12 [of] the Federal Court Rules.

29    No explanation has been given for Mr Foster’s disobedience of the order of 26 September. In those circumstances, on one view of the decision in Hadkinson, he is in contempt and may not prosecute his appeal for so long as he remains in contempt. Thus the appeal should be stayed and/or dismissed. Alternatively, taking Lord Denning’s approach the Court should consider whether, in the exercise of its discretion, it should stay the appeal and then dismiss it. It will be convenient if I deal with the matters in dispute by reference to the submissions made on behalf of Mr Foster.

30    Counsel submits that a person cannot be guilty of contempt unless the specific charge against him is distinctly stated, along with particulars, and he has been given an opportunity to answer the charge. The authorities suggest that those formalities and, indeed the substantive requirements associated with punishment for contempt do not apply to an application for a stay of proceedings commenced by a contemnor. In any event, the application and supporting affidavit identify the basis of the present application as being Mr Foster’s failure to comply with orders made on 26 September 2013 and 24 October 2013. As I have said, the matter has proceeded primarily upon the basis that the relevant disobedience was of the order of 26 September 2013. Mr Foster has had adequate opportunity to make any relevant response.

31    In an associated submission, counsel submits that there have been no prior proceedings in which Mr Foster’s contempt has been proven. Mr Foster was initially brought before the Court pursuant to the procedure set out in Div 42 of the rules. Counsel suggests that the requirements of rr 42.11, 42.12 and 42.13 have not been satisfied. However, those rules relate to punishment. The order dated 26 September 2013 was an order contemplated by the order made on 7 December 2011, pursuant to which the appellant was at large from December 2011 until September 2013. Whilst Mr Foster may well be liable to punishment for his contempt of the order made on 26 September 2013, I am not presently concerned with that question. I am presently considering whether he should be allowed to prosecute his appeal against the sentence passed on 24 October 2013. Any limit upon his capacity to do so is not imposed as a punishment. Rather, it is imposed in order to uphold the authority of the Court. In any event, as I have already observed, counsel’s submission is not supported by the authorities.

32    Counsel also submits that, “while the Attorney-General has a right to bring before the Court any matter which he considers should in the public interest be brought before the Court, such cases should be brought against the Queen”. It is not clear whether this submission addresses the right to bring proceedings for contempt or a question as to the appropriate respondent to such proceedings. Whilst the Attorney-General may bring contempt proceedings, an affected party may also do so. See Attorney-General v Times Newspapers Ltd [1974] AC 273 at 293 and 321. As to the suggestion that proceedings should be brought against the Queen, counsel cites Fraser v The Queen (1984) 3 NSWLR 212, per Kirby P and McHugh JA at 218 – 219, and Re Perkins; Mesto v Galpin [1998] 4 VR 505. Both cases involved proceedings for contempt initiated by a Judge and determined summarily. In each case, it was held that the Queen, and not the Judge, should be named as respondent in any appeal. The decisions have no present relevance. The point has no merit.

33    I am satisfied beyond all reasonable doubt that Mr Foster disobeyed the order dated 26 September 2013. Counsel submits that in the letter handed to his Honour on 27 September Mr Foster provided an explanation for his non-attendance. I find no satisfactory explanation in that letter or in the subsequent letter dated 24 October 2013. I am satisfied beyond all reasonable doubt that his failure to obey the order of the Court constituted contempt. He has offered no basis for any finding to the contrary. He remains in contempt.

34    Counsel for Mr Foster then addresses the “general principle” in Hadkinson, identifying it as:

… that a court may refuse to hear an application brought by a person who is in contempt of the Court until such time as s/he purges the contempt.

Whilst accepting the general principle, counsel looks to the “exceptions”, in particular that identified by Romer LJ to the effect that a person may apply for the purpose of purging his contempt, or appeal with a view to setting aside the order upon which his alleged contempt is founded. Counsel identifies the relevant contempt as being Mr Foster’s failure to serve his period of imprisonment, referring to para 3(b) of ACCC’s outline of argument. However this overlooks para 3(a) of that document which identifies another contempt, namely Mr Foster’s failure to comply with the order made by Logan J on 26 September 2013.

35    Counsel submits that the case is within the exception to the rule in Hadkinson, namely that a contemnor may appeal against the order in respect of which his contempt arises. Counsel also submits that the appeal does not arise out of the proceedings which gave rise to Mr Foster’s contempt. As to the first proposition, I have already pointed out that Mr Foster’s appeal is against the order of 24 October 2013. In this respect, the present case is similar to Hadkinson. In that case, the wife was in contempt of the order that the child not be removed from the jurisdiction. That fact does not appear clearly from the reasons but appears from the opening sentence of the summary of counsel’s submissions on behalf of the father. As to the second proposition, both Short and Macleod suggest a requirement that the appeal be in the same proceedings as those giving rise to the contempt. Burnett also supports such an approach. However those cases give no real indication as to what is meant by the expression “the same proceedings in which the contempt occurs” (Short at 11; Macleod at 2). Counsel for Mr Foster points to the definition of the term “proceeding” in the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”). The definition is as follows (s 4):

Proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.

Counsel submits that the word “proceeding” is “used distinctly and separately (as opposed to it being an inclusive term, to cover both the action and any appeal from an action)”. I am not sure that I understand this submission. The submission may be that the express inclusion of an “appeal” in the definition of the term “proceeding” suggests that in the absence of such express inclusion, appeals would not be included, so that the rule in Hadkinson does not prevent a contemnor from prosecuting an appeal against an order made in the proceedings in which the contempt occurred.

36    Such an approach would severely limit the application of the rule (or discretion) identified in Hadkinson. If all appeals are to be seen as separate proceedings from those at first instance to which they relate, the rule could only apply to an appeal in connection with which there had been a contempt. There would also be little room for the application of the exception which allows a contemnor to prosecute an appeal against an order in respect of which he is in contempt. That exception could also only apply in connection with contempt in connection with the appeal. The authorities do not support such a narrow approach.

37    In any event there are a number of deficiencies in counsel’s reasoning, the first being that in Short, the South Australian Supreme Court cannot have had in mind the definition of the term “proceeding” in the Federal Court Act. It is more likely that in both cases, the reference to proceedings other than those in which the contempt occurred was to proceedings which were quite distinct in terms of subject matter and/or procedural history. In my view, for the purpose of the limitation identified in both Short and Macleod, the reference to the “same proceedings” should be so understood. In Burnett, the Court seemed to place some reliance upon the statement as to the jurisdiction invoked and the file number. However it may be that these objective facts simply demonstrated that the second petition addressed the same issues as the first. In the present case, the order of 26 September 2013 was clearly designed to compel Mr Foster’s attendance to receive, and submit to judgment. His failure to do so has led to his not commencing to serve his sentence. The appeal is against that sentence, but not against the finding of contempt upon which the sentence refers. Nor is there any appeal against the order of 26 September 2013. I consider that such order was made in the same proceedings as was the sentence for contempt.

38    The balance of counsel’s submissions relate to the orders of 24 October 2013 rather than to that of 26 September. I need not consider those matters.

SHOULD THE APPEAL BE STAYED?

39    If the approach of the majority in Hadkinson is adopted, it seems to me that the appeal must be stayed. The case falls squarely within the rule. However I propose also to consider the matter, adopting Lord Denning’s discretionary approach. Mr Foster has blatantly disregarded the order made on 26 September 2013. Nothing by way of justification has been offered. Logan J permitted Mr Foster to be at liberty whilst the contempt proceedings were heard and determined. Such an arrangement is common in criminal proceedings, provided that any risk to the public can be managed without resort to remand in custody, and the risk of flight can be similarly managed. In this case the conditions upon which he was released were designed to prevent flight.

40    Mr Foster’s legal advisers must appreciate that the Court takes a very serious view of his conduct. No doubt they have communicated that view to him. Nonetheless he has not surrendered himself. The need to vindicate the authority of the Court is obvious. Insistence upon the observance of its orders as a condition of any further proceedings in the appeal is one way of doing so, perhaps the only way. Mr Foster does not challenge the order pursuant to which he was required to appear, the very basis of his alleged contempt. Further, he does not seek to purge his contempt. A mere apology does not have that affect. His appeal relates to the appropriate punishment for his contempt of the orders made by Lander J, not the fact of his guilt. There is little doubt that such contempt will attract some period of imprisonment. The only factor militating against my ordering a stay is the inevitable effect of such an order upon his statutory right of appeal. It has not been suggested that such consideration is, of itself a bar to my ordering a stay.

41    As a matter of discretion, I consider that Mr Foster’s appeal should be stayed until he surrenders himself into custody.

DISMISSAL FOR WANT OF PROSECUTION

42    There is little point in simply staying proceedings on the appeal. Mr Foster’s conduct offers no ground for any hope that he will surrender himself in advance of the appeal, or abide the order of the Court on appeal. Unless I make some further order, any stay will simply continue at Mr Foster’s pleasure. Such a situation would be likely further to undermine the Court’s authority. ACCC applies for dismissal pursuant to r 36.74(1) which provides:

(1)    A respondent may apply to the Court for an order that the appeal be dismissed for the failure by the appellant to do any of the following:

(a)    comply with the direction of the Court;

(b)    comply with these Rules;

(c)    attend a hearing relating to the appeal;

(d)    prosecute the appeal.

ACCC submits that by failing to comply with the order of 26 September 2013, Mr Foster has put himself in a position in which he cannot prosecute his appeal. The Court has made it clear that the appeal will not be heard until such time as Mr Foster surrenders himself into its custody. His failure to do so demonstrates an intention not to prosecute the appeal. As I have said, it is a serious step to deprive him of his statutory right. Before taking that step, I must be sure that he understands that the consequence of his continued disobedience will be the loss of his right of appeal. I have no doubt that his legal advisers have so advised him. Nonetheless, out of an abundance of caution, I propose to allow him one further opportunity to maintain his right of appeal.

TWO OTHER MATTERS

43    I should deal with two other matters. The first concerns the order which I made on 15 November 2013. It is set out above. On 13 December 2013, in the course of argument, counsel for Mr Foster submitted that the Court had no jurisdiction to insist upon personal attendance by a party. To the extent that counsel advanced any basis for this submission, it was that s 78 of the Judiciary Act 1903 (Cth) (the “Judiciary Act”) had that effect. That section provides:

In every Court exercising federal jurisdiction the parties may appear personally or by such barristers or solicitors as by this Act or the laws and rules regulating the practice of those Courts respectively are permitted to appear therein.

I suggested that the right to appear by counsel did not necessarily exclude the inherent power of a court to insist upon personal attendance. Counsel for Mr Foster submitted that if the Court had any such power, it could only be exercised for a proper purpose, the implication being that it was not, in the circumstances proper for me to insist upon Mr Foster’s attendance. I should point out that the order provided that Mr Foster could appear by counsel to show cause why the appeal should not be dismissed, or at least that was my intention.

44    In Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 442, Griffith CJ discussed briefly the history of the notion of judicial power. Amongst other things his Honour said:

Without attempting an exhaustive definition of the term “judicial power” it may be said that it includes the power to compel the appearance of persons before the tribunal in which it is vested, to adjudicate between adverse parties as to legal claims, rights, and obligations, whatever their origin and to order right to be done in the matter.

It might be submitted that pursuant to s 78 of the Judiciary Act the power referred to by Griffith CJ is limited to insisting upon appearance in some form, including by legal representative. However it is difficult to understand why such a narrow approach should be adopted. It seems more likely that the limits of the power would depend upon what was reasonably necessary in order that the contemplated adjudication occur, and that right be done. Insistence upon personal appearance is not necessarily a burdensome imposition. The history of the common law suggests that the courts have, from the earliest times asserted the right to insist upon personal appearance. In vol II of Pollock and Maitland, The History of English Law (2nd ed 1952), commencing at 578, under the heading “Process”, the authors discuss the processes “which the law employs in order to compel men to come before its courts”. In connection with civil proceedings at 592 - 593 they discuss the history of such processes in real and personal actions. In the latter case they say at 593:

When there was no specific thing that could be seized and adjudged to the plaintiff as being the very thing that he demanded, the law had at its command various engines for compelling the appearance of the defendant. Bracton has drawn up a scheme which in his eyes is or should be the normal process of compulsion; but we can see both from his own text and from the plea rolls that he is aiming at generality and simplicity, and also that some questions are still open. The scheme is this:- (1) Summons, (2) Attachment by pledges, (3) Attachment by better pledges, (4) Habeas corpus, (5) a Distraint by all goods and chattels, which however consists in the mere ceremony of taking them into the king’s hand; (6) a Distraint by all goods and chattels such as to prevent the defendant from meddling with them; (7) a Distraint by all goods and chattels which will mean a real seizure of them by the sheriff who will become answerable for the proceeds (issues, exitus) to the king; (8) Exaction and outlawry.

45    Thus the writ of habeas corpus was historically used to facilitate the administration of justice by securing the appearance of the defendant in a personal suit. This history has been acknowledged by more recent historians. See RJ Sharpe, The Law of Habeas Corpus (1976) at 1 as follows:

By the early part of the thirteenth century, the words ‘habeas corpus’ were a familiar formula in the language of civil procedure, and it is likely that the phrase first appeared much earlier. The words simply represented a command, issued as a means or interlocutory process, to have the defendant to an action brought physically before the court. The idea of producing the body with the cause of his detention was not present. In fact, there usually had been no detention at all, and the purpose of the process was to order an officer to bring in the defendant, and not at all to subject the cause of a detention to the court’s scrutiny.

At footnote 1 on p 2 the author observes:

The law required that short of outlawry the defendant had to be actually present in court before a final determination in a personal action could be made: II Pollock and Maitland, 591–4. Habeas corpus was one of the methods described by Bracton in his discussion of the normal process of compulsion available to bring the defendant before the court … .

46    Similarly in RS Walker, Habeas Corpus Writ of Liberty (2006), it is said, at 12 that:

It is dangerous to generalize about legal practice in Twelfth century England, but there does appear at the end of the century evidence indicating that a rudimentary habeas corpus was in use. I hesitate to use the word “writ” in this connection because it has a connotation of formal definition which I do not think can be warrantably ascribed to the practice of which we have evidence. Two court orders appear in 1199 which command one party to “have” another named party appear before the court at Westminster. A few years later, however, the Coram Rege Rolls yield a definite habeas corpus, and there is nothing in the reported version of Tyrel’s Case (1214) to indicate that the form of the court’s command was novel or unusual:

The sheriff was commanded to have the body of Baldwin Tyrel before the king … to answer Ranulf of Devonsby … touching an appeal they made against him … (for) denouncing the king’s death, and to summon the said Ranulf … to be there to prosecute their appeal against him.

47    Whilst s 78 of the Judiciary Act permits a party to appear by legal representative, I see no basis for inferring that the courts have given up the power to insist upon personal attendance by a party where such attendance will facilitate the administration of justice. After all, there is no doubt that a court can compel attendance of a witness. If the Court had power to make the order which was made on 26 September 2013, the validity of which is not in dispute, then I see no reason to doubt my power to make a similar order, for a similar purpose in connection with the current proceedings. In any event nothing now hangs upon the order dated 15 November 2013.

48    The second matter arises out of the fact that I am presently exercising the Court’s appellate jurisdiction. Part III Div 1 of the Federal Court Act confers original jurisdiction upon the Court, being “such original jurisdiction as is vested in it by laws made by the Parliament”. In general, pursuant to s 20, original jurisdiction is to be exercised by a single Judge, although there are some exceptions. Part III Div 1A deals with the procedure for dealing with indictable offences. Part III Div 2 confers appellate jurisdiction in civil matters. In general, such appellate jurisdiction is exercised by the Full Court, but again there are exceptions. They are found in ss 25(1AA), (2) and (2B). Part III Div 2A deals with appellate and related jurisdiction in criminal proceedings. In Div 2A, s 30AA confers jurisdiction to hear appeals in connection with proceedings on indictment and summary proceedings. Division 2A also deals with procedure. Pursuant to s 30AE, the appellate jurisdiction under Div 2A is to be exercised by the Full Court, save for the matters identified in ss 30AE(2), 30AE(3), and 30AE(4). The matters in respect of which a single Judge may exercise appellate jurisdiction pursuant to s 25 (in civil appeals) are not precisely the same as those identified in s 30AE (in criminal appeals).

49    Part III Div 3 is of general application. However s 31 provides:

(1)    Subject to any other Act, the 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.

(2)    The jurisdiction of the Court to punish a contempt of the Court committed in the face or hearing of the Court may be exercised by the Court as constituted at the time of the contempt.

50    Section 24 of the Judiciary Act confers upon the High Court the “same power to punish contempts of its power and authority as is possessed at the commencement of this Act by the Supreme Court of Judicature in England”. Section 35 of the Family Law Act 1975 (Cth) is in terms similar to s 31 of the Federal Court Act. Concerning the position in the Family Court, in Re Colina & Anor; ex parte Torney (1999) 200 CLR 386, Gleeson CJ and Gummow J said at [16] – [17]:

16    The acts constituting the alleged contempts by Mr Torney are not offences against any law of the Commonwealth. That which renders such act (if proved) liable to punishment has its source in Ch III of the Constitution. The power to deal summarily with contempts is, to use Isaacs J’s phrase “inherent” and is “a power of self-protection or a power incidental to the function of superintending the administration of justice”.

17    The subject was considered recently by the Judicial Committee of the Privy Council in Ahnee v Director of Public Prosecutions … in the context of the Constitution of Mauritius. In delivering the reasons of their Lordships, Lord Steyn said:

[T]he Constitution gave to each arm of government such powers as were deemed to be necessary in order to discharge the functions of a legislature, an executive and a judiciary [and] in order to enable the judiciary to discharge its primary duty to maintain a fair and effective administration of justice, it follows that the judiciary must as an integral part of its constitutional function have the power and the duty to enforce its orders and to protect the administration of justice against contempts which are calculated to undermine it.

Hayne J, whilst agreeing generally with the reasons of Gleeson CJ and Gummow J, said at [109]:

Although I accept that it is right to speak of an “offence” of contempt, the use of that term should not be permitted to obscure the significant differences between the powers that are invoked against an alleged contemnor and those that are set in train under the criminal law. As was said in Hinch v Attorney-General (Vict) [No 2] [(1987) 164 CLR 15 at 89] … :

“Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event.”

The power to punish for contempt is an inherent power of courts charged with “the function of superintending the administration of justice” … . It is a power that is invoked sparingly but in a very wide variety of circumstances. There are, in that sense, many forms of contempt; there is no single “offence” of the kind that the criminal law knows.

51    It follows that contempt proceedings in this Court are within its civil, rather than its criminal jurisdiction. This is consistent with the reference in s 24(1C) to appellate proceedings for contempt. Thus, in contempt proceedings, a single Judge may exercise the powers identified in s 25 of the Federal Court Act. Those powers include:

    making an interlocutory order pending, or after the determination of an appeal to the Court [s 25(2B)(ab)];

    dismissing an appeal for want of prosecution [s 25(2B)(ba)]; and

    dismissing an appeal for failure to comply with a direction of the Court, or to attend a hearing relating to the appeal [s 25(2B)(bb)].

52    Pursuant to s 30AE, a single Judge may:

    dismiss an appeal for want of prosecution [s 30AE(4)(c)];

    dismiss an appeal for failure to comply with a direction of the Court, or to attend a hearing relating to the appeal [s 30AE(4)(d)]; and

    give directions as to the conduct of an appeal [s 30AE(4)(f)].

53    The power conferred by s 25(2B)(ab) seems to be wide enough to include the grant of a stay. As much was assumed by Jessup J in O’Connor v Zentai [2011] FCA 1162 at [9]. Although there is no similar provision in s 30AE, s 30AE(4)(f) seems to cover much the same ground.

54    I note that s 37P(5) of the Federal Court Act expressly authorizes the Court or a Judge to dismiss civil proceedings where a party fails to comply with directions concerning matters of practice and procedure made pursuant to s 37P(2). Rule 36.74 also contemplates dismissal for failure to do any of the following:

(a)    comply with a direction of the court;

(b)    comply with these rules;

(c)    attend a hearing relating to the appeal;

(d)    prosecute the appeal.

I need not say any more about those provisions.

ORDERS

55    Mr Foster’s appeal is already stayed pending the publication of this decision. The question is whether it is appropriate that I now proceed to dismiss the appeal for want of prosecution or abuse of process. I have made it clear that, unless Mr Foster surrenders himself into the custody of the Court, his appeal cannot proceed. In those circumstances, his failure to appear necessarily bespeaks an intention not to prosecute the appeal. He has refused to take a step which the Court has indicated is necessary in order that he prosecute the appeal. His failure to take that step means that he cannot prosecute the appeal. He was entitled to challenge the legal correctness and propriety of my order staying the appeal, but I have concluded that his challenge is without merit. He was also entitled to challenge the legal correctness and propriety of the proposed dismissal of his appeal for want of prosecution. I have also found that his challenge to that step is without merit. Taking the most favourable view of Mr Foster’s conduct, that he had genuine doubt about the legal correctness and propriety of the course which I foreshadowed, he must now submit to the jurisdiction of the Court. Taking that most favourable view of his conduct, I shall allow him one last chance to comply with the order of 26 September 2013. I do not know his present location. I shall allow him seven days in which to surrender himself. If he does not do so, the appeal, without further order, will stand dismissed for want of prosecution. In the meantime, the stay will continue in force. The warrants for arrest and committal made by Logan J are still in force.

56    I order that:

    Peter Clarence Foster surrender himself into the custody of the Registrar, any District Registrar or Deputy District Registrar of the Federal Court of Australia, wheresoever located in Australia, or to the Sheriff or a Deputy Sheriff of the Court, wheresoever located in Australia, or to any officer of the Australia Federal Police or a State or Territory police force or service on or before 4.00 pm on the 25th day of March 2014;

    upon such surrender, the person to whom he so surrenders forthwith advise the District Registrar of the Federal Court of Australia at Brisbane, by telephone, of such surrender;

    in default of such surrender on or before the said time and date, the appeal herein stand dismissed;

    the said appeal otherwise be stayed until 4.00 pm on the 25th day of March 2014;

    unless the said Peter Clarence Foster does surrender himself in accordance with the above order, he pay the costs of the Australian Competition and Consumer Commission of and incidental to the appeal, including the costs of and incidental to the application for dismissal of the appeal;

    in the event that the said Peter Clarence Foster does surrender himself in accordance with the above order, all questions of costs be reserved; and

    the parties have liberty to apply as they may be advised.

Associate:

Dated:    18 March 2014