FEDERAL COURT OF AUSTRALIA
Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609
CONTEMPT – Civil contempt – Injunction – Extra-territorial operation - Failure to comply – Clarity of order – Standard of proof – Beyond reasonable doubt
Banking Act 1959 (Cth)
Federal Court of Australia Act 1976 (Cth) s 23
Federal Court Rules O 37 r 2Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 referred to
AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 referred to
Australian Prudential Regulation Authority v Siminton (No. 3) (2006) 230 ALR 528 cited
Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 referred to
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 referred to
Australian Competition and Consumer Commissioner v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576 referred to
Heatons Transport v TGWU [1973] AC 15 referred to
ICA Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 referred to
Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 referred to
National Australia Bank Ltd v Dessau [1988] VR 521 referred to
Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 referred to
Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 referred to
RPS v R (2000) 199 CLR 620 referred toAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v DAVID ROBERT SIMINTON
VID 1607 OF 2005TRACEY J
7 NOVEMBER 2007
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1607 OF 2005
BETWEEN:
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
ApplicantAND:
DAVID ROBERT SIMINTON
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
7 NOVEMBER 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The hearing of the contempt motion be adjourned to 10:15 am on 15 November 2007.
2.On or before 5:00 pm on 12 November 2007 the respondent file and serve:
(a)any affidavits on which he proposes to rely at the penalty hearing; and
(b)an outline of his written submissions.
3.On or before 5:00 pm on 14 November 2007 the applicant:
(a)file and serve any answering affidavits on which it proposes to rely at the penalty hearing; and
(b)an outline of its written 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 1607 OF 2005
BETWEEN:
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
ApplicantAND:
DAVID ROBERT SIMINTON
Respondent
JUDGE:
TRACEY J
DATE:
7 NOVEMBER 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 14 December 2005 the Australian Prudential Regulation Authority (“APRA”) commenced a proceeding in this Court seeking interim, interlocutory and final relief against Mr David Robert Siminton. On 21 December 2005 APRA filed a statement of claim in which it was alleged that Mr Siminton had, in various ways, contravened provisions of the Banking Act 1959 (Cth) (“the Act”). On 15 January 2002 Mr Siminton had registered a business name under Victorian legislation. That business name…
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- Case
- [2007] FCA 1609
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Mr Siminton had indeed contravened the court orders and, if so, what the appropriate penalty should be. Mr Siminton argued that any actions he took were based on a misunderstanding of the orders, and he did not intend to interfere with the court's processes. Additionally, he contested the extraterritorial application of the orders, claiming they should not extend to actions involving offshore accounts. The court needed to decide if the orders could compel Mr Siminton to refrain from actions in Australia that would lead to consequences overseas, as well as whether the orders applied to offshore accounts.
The court found that Mr Siminton had contravened several of the court orders, specifically charges 1.1, 1.2, 1.3, 1.4, 1.5, 1.7, 1.9, and 1.11. The judge concluded that while Mr Siminton may have acted under a misunderstanding, this would be considered when determining the penalty. The court rejected Mr Siminton's argument regarding the extraterritorial scope of the orders, stating that the jurisdiction extended to actions taken in Australia that might have overseas consequences. The judge reasoned that since Mr Siminton was present in Australia and subject to the court's jurisdiction, the orders could compel him to refrain from certain actions, including those that might lead to consequential actions abroad.
The court directed that a hearing on penalty should be held and outlined specific steps that needed to be taken before the hearing. The hearing of the contempt motion was adjourned, and both parties were required to file and serve relevant affidavits and written submissions by specified dates.
Orders
Orders of the court
1. The hearing of the contempt motion be adjourned to 10:15 am on 15 November 2007.
2. On or before 5:00 pm on 12 November 2007 the respondent file and serve:
(a) any affidavits on which he proposes to rely at the penalty hearing; and
(b) an outline of his written submissions.
3. On or before 5:00 pm on 14 November 2007 the applicant:
(a) file and serve any answering affidavits on which it proposes to rely at the penalty hearing; and
(b) an outline of its written submissions.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: TRACEY J
The question of whether or not Mr Siminton, in the present proceeding, acted on a bona fide misunderstanding of the order, will fall for consideration, on the evidence, when it becomes necessary to determine what action the Court should take in response to any contravention on the part of Mr Siminton.EXTRA-TERRITORIAL OPERATION Mr Siminton also submitted that Order 1(e) did not have extra-territorial operation so as to apply to accounts, otherwise comprehended by its terms, which were held off shore. This objection, as I understood it, applied to Charge 1.9 which alleges that Mr Siminton gave instructions that a sum of money held in an account controlled by him in a bank in Austria should be transferred to the Holzheimer’s Visa account. Order 1(e) applied to accounts which Mr Siminton had authority to operate. The order was not confined, in terms, to accounts held within Australia. This objection must fail. At all relevant times Mr Siminton has been in Australia and subject to the jurisdiction of the Court. That jurisdiction includes power, under s 23 of the Federal Court of Australia Act 1976 (Cth), to make orders of the kind which Gray J made in this proceeding: see Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 at 132; Australian Competition and Consumer Commissioner v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576 at 589. There was no jurisdictional obstacle to Mr Siminton being required not to perform certain acts in Australia which might lead to consequential action being taken overseas. In National Australia Bank Ltd v Dessau [1988] VR 521 at 522 Brooking J summarised the applicable legal principles as follows:“That a court of equity, acting as it does in personam, may order someone amenable to its jurisdiction to do or refrain from doing an act abroad was established quite early in our history, before even the days of the Boston Tea Party (Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132). The jurisdiction is grounded not on any pretension to the exercise of judicial power abroad but on the circumstances that the defendant, being amenable to the Court’s jurisdiction can be personally directed to act or not to act …”THE CHARGES It will be convenient to deal collectively with Charges 1.1 to 1.5 and separately with Charges 1.7, 1.9 and 1.11. I propose to record my findings in respect of all charges and then to make some particular observations in relation to some of them. In seeking to make good each of these charges APRA invites the Court to draw certain inferences. This invitation is made in circumstances in which neither Mr Siminton nor any other persons, such as the Holzheimers, who might reasonably have been expected to have knowledge of relevant events, gave evidence. No adverse inference can be drawn merely because Mr Siminton has chosen not to give or call evidence in defence of the charges. The failure is nonetheless of potential significance. This is because, as the High Court explained in RPS v R (2000) 199 CLR 620 at 632-633:“…it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting and apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen:‘[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.’ “(footnotes omitted).The inferences which APRA invited the Court to draw are founded on uncontradicted evidence. Counsel for Mr Siminton did not make any specific submissions as to why the inferences for which APRA contended should not be drawn.