The Full Federal Court has upheld part of an appeal by Mr David (ZPG) Hughes against a finding of contempt court which followed Australian Competition and Consumer Commission legal action.
The Full Court, comprising Justices French, Dousett and Emmett, handed down its decision on 30 November.
Mr Hughes appealed on four grounds:
- procedural fairness concerning Justice Conti not reading all his affidavits
- impossibility of compliance with specific orders relating to transfer of web site
- a question of whether he actually 'sold' contraceptives to an ACCC officer
- applicability of various sections of the Trade Practices Act 1974
The Full Court was satisfied that there was no procedural unfairness to Mr Hughes.
The ACCC, by consent agreed, that the orders relating to the transfer of the website be set aside.
Referring to the sale of goods legislation the Full Court held that a 'sale' had not taken place because transfer of the contraceptives had not passed. Mr Hughes had taken the money but had not provided the contraceptives. Other alleged contempts relating to offer for sale and supply into the United State of America were not challenged.
The Full Court held that it was not open for Mr Hughes to raise any issues in the original decision as the appeal merely concerned the contempt application
The Full Court also varied the orders to allow for the imprisonment suspension to be for a period of two years from the date of making the order.