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

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

Leave to appeal was refused because none of the three alleged errors showed that the primary judge's decision was attended by sufficient doubt. There was no demonstrated error in the primary judge's treatment of evidence about Mr Foster's financial position, the freezing orders did not relevantly disable funding given their capacity for variation, and the affidavit said to address finances was not in evidence before the primary judge. The primary judge had not made Mr Reichelt's evidence unavailable and remained best placed to manage any scheduling issues. The Dietrich principle did not apply to proceedings on ordinary civil pleadings, even where the proceedings were serious civil penalty...

Jurisdiction
Australia
Judgment Date
02 September 2012
Procedural Posture
Application for Leave to Appeal From Dismissal of an Interlocutory Application to Adjourn a Trial, With Applications for Interim Relief / Leave to Appeal
Outcome
The application for leave to appeal and the applications for interim relief were dismissed, with costs payable by the applicant to the first respondent.
Legal Topics
['leave to Appeal' 'adjournment of Trial' 'interim Stay' 'unrepresented Litigant' 'availability of Witness Evidence' 'dietrich Principle in Civil Penalty Proceedings']
['appeal and New Trial' 'civil Procedure' 'civil Penalties'] ['leave to Appeal' 'adjournment of Trial' 'interim Stay' 'unrepresented Litigant' 'availability of Witness Evidence' 'dietrich Principle in Civil Penalty Proceedings']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Dismissal of an Interlocutory Application to Adjourn a Trial, With Applications for Interim Relief / Leave to Appeal

Legal Issues

  1. 1 ["Whether the primary judge's refusal to adjourn the trial was attended by sufficient doubt to warrant consideration by a Full Court." "Whether the primary judge erred in dealing with Mr Foster's asserted inability to fund legal representation, including in light of freezing orders." 'Whether the primary judge erred in concluding that the limited availability of the witness Mr Reichelt did not justify adjourning the trial.' 'Whether the principle in Dietrich v The Queen (1992) 177 CLR 292 extends to serious civil penalty proceedings.']

Ratio Decidendi

Leave to appeal was refused because none of the three alleged errors showed that the primary judge's decision was attended by sufficient doubt. There was no demonstrated error in the primary judge's treatment of evidence about Mr Foster's financial position, the freezing orders did not relevantly disable funding given their capacity for variation, and the affidavit said to address finances was not in evidence before the primary judge. The primary judge had not made Mr Reichelt's evidence unavailable and remained best placed to manage any scheduling issues. The Dietrich principle did not apply to proceedings on ordinary civil pleadings, even where the proceedings were serious civil penalty...

Court Disposition

The application for leave to appeal and the applications for interim relief were dismissed, with costs payable by the applicant to the first respondent.

Orders

  • ['The first respondent be granted leave to file in Court a notice of address for service.' 'The application for leave to appeal be dismissed.' 'The applications for interim relief be dismissed.' 'The applicant pay the costs of the first respondent.']