Siminton v Australian Prudential Regulation Authority

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 30 May 2008
• Neutral Citation: [2008] FCAFC 89

FEDERAL COURT OF AUSTRALIA

Siminton v Australian Prudential Regulation Authority [2008] FCAFC 89

CONTEMPT – appeal from finding of contempt based on failure to pay fine imposed by Full Court – whether motion for contempt brought in correct proceeding – where appropriate to commence contempt charges in principal proceedings

CONTEMPT – appeal from finding of contempt based on failure to pay fine imposed by Full Court – whether primary judge wrongly acted on inferences arising from fact that appellant give no evidence – where inferences correctly drawn

CONTEMPT – appeal from finding of contempt based on failure to pay fine imposed by Full Court – whether necessary to show capacity to pay whole of fine to show contempt – where capacity to pay part of fine is sufficient –– where only funds available to pay fine were subject to earlier restraining order – where to pay fine would constitute breach of the restraining order – held that it was therefore not shown that appellant had the capacity to pay fine – accordingly charge for contempt not be made out – appeal upheld

Banking Act 1959 (Cth)

Federal Court of Australia Act 1976 (Cth) s 31(1)

Federal Court of Australia Rules O37 r 2, O 40 r 5

Judiciary Act 1903 (Cth) s 24

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 cited

Australian Consolidated Press v Morgan (1965) 112 CLR 483 cited

Australian Prudential Regulation Authority v Siminton (No 3) [2006] FCA 397 cited

Australian Prudential Regulation Authority v Siminton (No 5) [2006] FCA 1340 affirmed

Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 affirmed

Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612 reversed

Siminton v Australian Prudential Regulation Authority [2008] FCAFC 88 referred to

Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90 referred to

Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 cited

Witham v Holloway (1995) 183 CLR 525 cited

DAVID ROBERT SIMINTON v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

VID 1152 of 2007

SPENDER ACJ, LANDER AND BUCHANAN JJ

30 MAY 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1152 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DAVID ROBERT SIMINTON Appellant
AND:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY Respondent

JUDGES:	SPENDER ACJ, LANDER AND BUCHANAN JJ
DATE OF ORDER:	30 MAY 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of Tracey J made on 28 November 2007 on the Notice of Motion of the Deputy Registrar dated 15 November 2006 be set aside and in lieu thereof it is ordered that the Deputy Registrar’s Notice of Motion dated 15 November 2006 is dismissed.

3. Any submissions which a party wishes to make in respect of costs are to be filed in the Victorian Registry of the Federal Court of Australia and served by 4pm on Wednesday 4 June 2008.

4. Any submissions in reply to submissions filed pursuant to order 2 are to be filed in the Victorian Registry of the Federal Court of Australia and served by 4pm on Friday 6 June 2008.

5. If no submissions are received, pursuant to order 2, by 4pm on Wednesday 4 June 2008, the Court’s order as to costs is:

There be no order as to the costs of the appeal, or of the costs of and incidental to the hearing and determination of the District Registrar’s Notice of Motion dated 15 November 2006.

6. If a submission by any party is filed pursuant to these orders, the Full Court will consider those submissions and will make its order as to costs after considering those submissions.

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	VID 1152 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DAVID ROBERT SIMINTON Appellant
AND:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY Respondent

JUDGES:	SPENDER acj, LANDER AND BUCHANAN JJ
DATE:	30 may 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal against an order in the nature of a declaration that the appellant was guilty of contempt by reason of his failure to pay a fine imposed upon him by the Full Court in an order dated 19 July 2006 and an order that the appellant be imprisoned for a period of four months.

2 The background facts are contained in the two decisions given today in appeals which were heard after each other earlier this week: Siminton v Australian Prudential Regulation Authority [2008] FCAFC 88; Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90.

3 We have decided that the appeal should be upheld but not for any reasons argued by the appellant. The appellant’s arguments were without substance and should be rejected.

4 On 14 December 2005, the Australian Prudential Regulation Authority (the respondent) commenced proceeding VID 1607 of 2005 (the principal proceedings) in this Court seeking interim, interlocutory and final relief against the appellant in relation to claimed contraventions of the Banking Act 1959 (Cth) (Banking Act). On 15 December 2005 Sundberg J, at an ex parte hearing, granted interim relief.

5 On 10 January 2006, after a hearing, Gray J made interlocutory orders in similar terms as those made by Sundberg J. The existence and terms of these orders are also relevant as will later appear. The orders made by Gray J (as formally served by the respondent on 9 May 2006) included:

1. Until the hearing and determination of this proceeding or further order, the Respondent, whether by himself, his servants or agents or otherwise, be restrained from:

(a) receiving money from members of the public by way of deposit in the Terra Nova Cache or the Principality of Camside;

(b) assuming or using the words “bank”, “banker” or “banking”:, or any words or phrases of like import, in relation to his, their or its business;

(c) advertising, representing or stating that he, they or it will carry on banking business;

(d) selling, transferring, dealing with, disposing of or otherwise encumbering or removing from Australia or causing to be removed from Australia any money (including, but not restricted to, cash), property or other assets he has whether held alone, jointly or in conjunction with others (including any accounts or property held in the name of the Principality of Camside or the Terra Nova Cache);

(e) dealing with, withdrawing or disposing of, or giving any instructions in relation to the disposition or transfer of, all or any part of the moneys standing to the credit of the Respondent and/or his nominee in any account (whether held alone, jointly or in conjunction with any other person, including any accounts or property in the name of the Principality of Camside or the Terra Nova Cache and any account in relation to which the Respondent is a signatory or which the Respondent otherwise has authority to operate, whether or not the Respondent is named as an account holder and any account which may be operated for the benefit of the Respondent, the Principality of Camside or the Terra Nova Cache) in any bank, building society or other financial institution and, without limiting the generality of the foregoing, account number 3162 1027 8861 in the name of the Principality of Camside with the Commonwealth Bank of Australia;

(f) …

SAVE THAT with the consent in writing of the Applicant previously given, the Respondent may do any of the things referred to in (d), (e) or (f) in the manner and for the purpose for which the Applicant has so consented.

6 On 30 March 2006 Merkel J found the appellant guilty of contempt for breaching the orders made by Sundberg J and on 10 April 2006 ordered him to be imprisoned for 10 weeks. The appellant appealed to the Full Court and on 19 July 2006 the Full Court allowed the appeal and set aside the orders made by Merkel J, and in lieu of those orders imposed a fine of $50,000 which was to be paid within 60 days of the order. The relevant orders of the Full Court were:

1. The appeal be allowed.

2. Paragraph 2 of the orders of Merkel J made on 10 April 2006 is set aside and in lieu thereof it is ordered:

(a) A fine in the sum of $50,000 be imposed on the appellant in respect of the contempt the subject of charges 1.1 and 1.2 of the statement of charge dated 4 January 2006 and charges 1.1, 1.2, 1.3 and 1.4 of the statement of charge dated 19 January 2006.

(b) The fine be paid to the District Registrar within 60 days or such further time and by such instalments as the District Registrar may allow.

(c) In the event that there is default in payment of the fine or in any instalment, the District Registrar shall apply to a judge of the Court for direction[s] concerning enforcement.

7 It was the appellant’s failure to pay the fine imposed by the Full Court which was the foundation for the charge of contempt dealt with by the primary judge in the matter with which this appeal is concerned. It will be necessary to return to a further examination of the imposition of this fine in due course.

8 On 14 September 2006 the appellant filed a notice of motion seeking an order that the payment of the fine imposed by the Full Court on 19 July 2006 be stayed pending the hearing and determination of an application by the appellant to strike out the principal proceedings.

9 On 18 September 2006 that notice of motion was dismissed.

10 On the same day the appellant wrote to the Registrar seeking an extension of three months to pay the fine. On that day...