Toben v Jones [2009] FCAFC 104

FEDERAL COURT OF AUSTRALIA

Toben v Jones [2009] FCAFC 104

CONTEMPT – appeal from conviction for contempt of court – failure to comply with orders of the Court – failure to comply with undertaking made to the Court – whether original orders should be read as being qualified by s 18D of the Racial Discrimination Act 1975 (Cth), by implications from the Australian Citizenship Act 2007 (Cth), or by a common law right of free speech – no mandate for reading the original proscriptions as if they were so qualified – whether there was ambiguity in the original orders – no ambiguity in original orders, and further there was no finding of the primary judge which was dependant on any asserted ambiguity – appeal dismissed CONTEMPT – appeal from punishment imposed for contempt of court – whether punishment of three months imprisonment excessive – whether primary judge was in error in not ordering home detention as a method of serving custodial sentence – purpose of punishment is to vindicate the authority of the Court – obedience to orders of the Court is not optional – sentence imposed not excessive or unwarranted – appeal dismissed PRACTICE & PROCEDURE – application for leave to add a ground of appeal – ground asserts that primary judge erred in dispensing with service of orders containing the notice required by O 37 r 2(3) of the Federal Court Rules – compliance with rule can be dispensed with where party had notice of an injunction and acted in defiance of orders – appellant had notice of orders made and undertakings given – no utility in granting leave to add ground of appeal – leave refused Federal Court Rules - O 37 r 2 Racial Discrimination Act 1975 (Cth) – ss 18C, 18D Australia Citizenship Act 2007 (Cth) Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 – applied Australian Securities Commission v Macleod (1993) 40 FCR 155 – cited Fullerton v Gardiner (unreported, Sup Ct, NSW, Powell J, No. 2715 of 1977, 31 October 1978) - applied Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 – applied