Kendrick-Smith v Australian Competition & Consumer Commission [2003] FCAFC 155

FEDERAL COURT OF AUSTRALIA

Kendrick-Smith v Australian Competition & Consumer Commission [2003] FCAFC 155 MILES KENDRICK-SMITH v AUSTRALIAN COMPETITION & CONSUMER COMMISSION V 426 of 2003 RYAN, SUNDBERG & MARSHALL JJ 21 JULY 2003 MELBOURNE (via videolink to SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 426 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MILES KENDRICK-SMITH

Appellant

AND: AUSTRALIAN COMPETITION & CONSUMER COMMISSION

Respondent

JUDGES: RYAN, SUNDBERG & MARSHALL JJ

DATE OF ORDER: 21 JULY 2003

WHERE MADE: MELBOURNE (via videolink to SYDNEY)

THE COURT ORDERS THAT: 1. The purported notice of appeal filed 29 May 2003 be struck out; 2 The appeal embodied in the said purported notice be dismissed as incompetent. 3. The orders in paragraph 1 and 2 hereof are made without prejudice to the right of the appellant to apply for leave to file and serve out of time a properly formulated notice of appeal from the orders of Kenny J of 8 May 2003. 4. The appellant pay the respondent's costs of the motion on notice dated 4 July 2003, including its costs reserved on 16 July 2003, such costs to be taxed in default of agreement.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 426 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MILES KENDRICK-SMITH

Appellant

AND: AUSTRALIAN COMPETITION & CONSUMER COMMISSION

Respondent

JUDGES: RYAN, SUNDBERG & MARSHALL JJ

DATE: 21 JULY 2003

PLACE: MELBOURNE (via videolink to SYDNEY)

REASONS FOR JUDGMENT

The court 1 There is before the Court a motion on notice by the respondent ("the ACCC") seeking the dismissal as incompetent of an appeal by the appellant, Mr Kendrick-Smith. The appellant's purported notice of appeal was filed on 29 May 2003 and sought to give notice of appeal from orders made by Kenny J on 8 May 2003. Her Honour's orders were in the following terms; '1. The second respondent has been, within the meaning of par 80(1)(e) of the Trade Practices Act 1974 (Cth) ("the Act"), knowingly concerned in, or party to, the conduct of the first respondent referred to in paragraphs 4, 5, and 7(1) of the Statement of Claim in contravention of s 52 of the Act. 2. The second respondent, by himself, his servants or agents or otherwise howsoever, is restrained from: (a) representing to members of the public that he performs; and (b) being knowingly concerned in representations by another person to members of the public that he, she, it or they perform; audit services on accounts or invoices of Telstra ('the Representation') unless the second respondent not less than 14 days prior to the first publication of the Representation by any such person, or any such representation in substance to the effect of the Representation by any such person, advises the Australian Competition and Consumer Commission in writing of details of: (i) the business name of each person intending to make the Representation; (ii) the principal place of business of each such person; and (iii) the intended mode of publication of the Representation to members of the public. 3. Pursuant to O 20, r 2 of the Federal Court Rules, any cross-claim of the second respondent be dismissed. 4. The second respondent pay the applicant's costs of the proceeding, including the costs of the motion, as amended by notice dated 6 September 2002. 5. Within 7 days of the date hereof, the applicant serve on the second respondent: (a) these orders; and (b) a copy of the reasons for judgment, which have been delivered today by posting them to him at his address at P O Box 715, Lane Cove, NSW 1595.' 2 An affidavit in support of the ACCC's motion discloses that an unsealed copy of a notice of appeal was served on the ACCC at its Sydney office on or about 10 June 2003. Service was therefore out of time under O 52 r 15 of the Rules of this Court which, so far as is relevant, provides; '(1) The notice of appeal shall be filed and served: (a) within 21 days after: (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. (3) Where leave is sought pursuant to subrule (2) an applicant may present his case and his argument to the Court in writing pursuant to rule 15A. (4) If an applicant does not proceed pursuant to rule 15A the application shall be determined after an oral hearing. (5) Subject to subrule 15A (1) an application shall be made in or substantially in the form numbered 54A in the Schedule 1.' 3 At the time when the ACCC took out its motion, no attempt had been made by the appellant to seek an extension of time in which to serve his notice of appeal or to file and serve an affidavit complying with O 52 r 15(6) which provides; 'An application shall be accompanied by an affidavit showing: (a) the nature of the case; (b) the questions involved; and (c) the reason why leave should be given.' In those circumstances, the Court must uphold the ACCC's objection and dismiss as incompetent the appeal embodied in the purported notice filed on 29 May 2003. 4 However, there is a more fundamental obstacle standing in the way of an appeal by Mr Kendrick-Smith. That is that his notice is profoundly defective. Order 52 rr 12(1) and (13)(2) provide; '12(1) An appeal shall be instituted by filing a notice of appeal which shall be in or substantially in the form numbered 55 in the Schedule 1. … … … 13(2) The notice of appeal shall state: (a) whether the whole or part only, and what part, of the judgment is appealed from; (b) briefly, but specifically, the grounds relied upon in support of the appeal; and (c) what judgment the appellant seeks in lieu of that appealed from.' 5 Form 55 directs the framer of a notice of appeal to "specify the grounds of appeal." The so-called "grounds" in the purported notice of appeal filed on 29 May 2003 are ten in number and are far from brief or specific, many comprising numerous sub-paragraphs and sub-sub-paragraphs. They are not, in truth, grounds of appeal at all. For example, the first, numbered 2, recites; 'The Applicant in this Notice of Appeal has obtained and was attempting to, as a litigant in person, understand how to submit to the Federal Court in the matter of VG 621 of 1998 the items marketed a) to k) whilst simultaneously not breaching: … … …' 6 Then follows a reference to s 70(1) and (2) of the Crimes Act 1914 which make it an offence for a serving or former Commonwealth officer to make an unauthorised communication of a fact or document which comes into his or her possession by virtue of being a Commonwealth officer. That reference is linked to a reference to "privilege" which we take to mean legal professional privilege, in respect of communications passing between, or emanating from, a number of entities including a firm of solicitors, Mallesons Stephens Jaques, the Australian Government Solicitor and this Court as well as, amongst others, Telstra, the ACCC and the National Australia Bank. Copious examples are then given of those communications. 7 It is then recited in purported ground of appeal 3 that; 'The judgment made by Justice Kenny May 8 2003 and indeed the initiation of the case VG621 of 1998 all hang on the findings of an unpublished report prepared by the ACA as a result of instructions given by the Minister of Communications, Information and Arts.' 8 That ground does not, in terms, indicate any error of fact or law said to have been made by the learned primary Judge. If it is contended that there was no evidence, or no admissible evidence, to support a particular finding, or that a finding was against the evidence or the weight of evidence, the ground of appeal should say so. 9 It is then contended in the next numbered paragraph: '4. Orders of the Court were not complied with in that transcripts were ordered by the Court to be provided to all parties in VG 621 of 1998, as they were in VG 536 of 1998, were not provided. The transcripts are not currently on the Court File as they are in VG 536 of 1998 yet both were subject to facsimile orders, as a result of a facsimile request of the courts by Respondent in both VG536 of 1998 and VG621 of 1998 (the cases are essentially Trade Practices Actions with different applicants, Telstra and the ACCC).' 10 That ground is disputed as a matter of fact by the ACCC but, in any event, it is not a ground of appeal. If orders of the Court were not complied with, the proper course was to apply to the Judge making them for orders compelling compliance, or for the person to whom the orders were directed to be punished for contempt. 11 The remaining purported grounds are also defective for various reasons. For example, that in paragraph 6 alleges that the appellant was denied access to Court files for a period in excess of three years. As well, there are scurrilous allegations in paragraph 7 that the ACCC "was able and did choose both its Judge and the Victorian Registry of the Federal Court to undertake the prosecution of VG 621 of 1998." and that Telstra has been guilty of tampering with evidence. The so-called grounds also contain much other irrelevant and scandalous material. 12 For these reasons, which are by no means exhaustive of the defects it contains, the purported notice of appeal could not stand even if leave to serve it out of time had been obtained. It must therefore be struck out. 13 Accordingly, we are constrained to uphold, on both grounds, the ACCC's objection to competency. However, we propose to frame our orders without prejudice to the right of the appellant to apply for leave to file and serve out of time a properly formulated notice of appeal. The orders of the Court will be that; 1. The purported notice of appeal filed 29 May 2003 be struck out; 2 The appeal embodied in the said purported notice be dismissed as incompetent. 3. The orders in paragraph 1 and 2 hereof are made without prejudice to the right of the appellant to apply for leave to file and serve out of time a properly formulated notice of appeal from the orders of Kenny J of 8 May 2003. 4. The appellant pay the respondent's costs of the motion on notice dated 4 July 2003, including its costs reserved on 16 July 2003, such costs to be taxed in default of agreement.