Australian Prudential Regulation Authority v Siminton (No 2)

FEDERAL COURT OF AUSTRALIA

Australian Prudential Regulation Authority v Siminton (No 2) [2006] FCA 336

COURTS – practice and procedure – application to vary interlocutory orders – application to strike out application and statement of claim

Bankruptcy Act 1966 (Cth)

Australian Prudential Regulation Authority v Siminton [2006] FCA 326 – cited
Adam P. Brown Male Fashions v Phillip Morris (1981) 148 CLR 170 - applied

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v SIMINTON
VID 1607 OF 2005

MERKEL J
30 MARCH 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1607 OF 2005

BETWEEN:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY APPLICANT
AND:	DAVID ROBERT SIMINTON RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	30 MARCH 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The notices of motion of the respondent filed on 17 February, 22 February and 14 March 2006 be dismissed.

2.The respondent pay the applicant’s costs of and incidental to the motions.

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 1607 OF 2005

BETWEEN:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY APPLICANT
AND:	DAVID ROBERT SIMINTON RESPONDENT
JUDGE:	MERKEL J
DATE:	30 MARCH 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. By notices of motion dated 17 February 2006, 22 February 2006 and 14 March 2006 the respondent (‘Siminton’) has applied:

   (a)       to set aside the orders made ex parte by Sundberg J on 15 December 2006;

   (b)to set aside the orders made on 10 January 2006 by Gray J after an inter partes hearing;

   (c)to set aside the orders made ex parte by me on 23 December 2005;

   (d)to strike out the application and Statement of Claim;

   (e)to stay the present civil proceeding until the determination of the ‘criminal activities’ alleged in the statement of claim.

2. In reasons for judgment delivered in this matter today ([2006] FCA 326) I outlined the nature of the present proceeding and the orders made by Sundberg J, Gray J and myself. It is unnecessary to repeat that outline.

3. The Court has the power to set aside or vary the previous orders because those orders are interlocutory orders over which the Court maintains its control: see Adam P. Brown Male Fashions v Phillip Morris (1981) 148 CLR 170 (‘Phillip Morris’) at 178. However, for reasons that I shall endeavour to briefly state I am of the clear view that the orders sought should not be made and that each of the notices of motion of the respondent should be dismissed with costs.

   (a)The Sundberg J orders

4. The orders made by Sundberg J were superseded by the orders made by Gray J granting interlocutory injunctions: see Australian Prudential Regulation Authority v Siminton [2006] FCA 140. The orders were first challenged by Siminton by his motion of 14 March 2006, which was well after the original orders were spent. The only apparent purpose of that challenge was Siminton’s endeavour to have the orders declared to be a…