FEDERAL COURT OF AUSTRALIA
Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612
CONTEMPT – Civil contempt – Failure to pay fine imposed by the Full Court – Capacity to pay fine – Whether Respondent had the capacity to pay all or any part of the fine – Whether refusal to pay fine was “wilful” – Standard of proof – Beyond reasonable doubt
Banking Act 1959 (Cth) s 65A
Federal Court of Australia Act 1976 (Cth) ss 23, 31(1)
Federal Court Rules O 37 r 2(3)
Judiciary Act 1903 (Cth) s 24Advan 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 Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 159 discussed
Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries of Australia (2001) 188 ALR 653 referred to
Australian Prudential Regulation Authority v Siminton (No 3) (2006) 230 ALR 528 referred to
Australian Prudential Regulation Authority v Siminton (No 5) [2006] FCA 1340 referred to
Australian Prudential Regulation Authority v Siminton [2007] FCA 1608 referred to
Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 referred to
Heatons Transport v TGWU [1973] AC 15 referred to
Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 referred to
Pattison v Bell [2007] FCA 137 referred to
RPS v R (2000) 199 CLR 620 referred to
Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 referred toAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v DAVID ROBERT SIMINTON (NO 8)
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 District Registrar file and serve:
(a)any answering affidavits on which she proposes to rely at the penalty hearing; and
(b)an outline of her 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 15 December 2005 the Australian Prudential Regulation Authority (“APRA”) obtained ex parte interim orders from Sundberg J restraining Mr David Robert Siminton from, inter alia:
“2(b) dealing with, withdrawing or disposing of, or giving any instructions in relation to the distribution or transfer…
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- Case
- [2007] FCA 1612
- Decision Date
CaseChat Overview and Summary
The legal issues that the court needed to resolve included whether the funds in question were indeed subject to the freezing order, and if Mr Siminton had the ability to lawfully access and use these funds. The court considered whether Mr Siminton had the option to apply for the right to use the funds or to vary the orders made by Gray J. Ultimately, the court had to decide if Mr Siminton had breached the court order by using the funds without proper authorisation.
The court found that the funds were indeed subject to the freezing order, and that Mr Siminton had the capacity to make part payment. The court accepted that Mr Siminton had access to the funds and chose to use them without obtaining the necessary permissions. The court concluded that Mr Siminton could have lawfully obtained the right to use the funds by exercising the liberty to apply granted by Gray J or by applying to vary the orders. However, Mr Siminton did neither of these things. Consequently, the court found that Mr Siminton had contravened the court order by using the funds without proper authorisation.
In light of the findings, the court directed the hearing of the contempt motion to be adjourned and set specific deadlines for the filing and serving of affidavits and written submissions by both parties. This was to ensure that all necessary evidence and arguments were presented at the penalty hearing.
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 District Registrar file and serve:
(a) any answering affidavits on which she proposes to rely at the penalty hearing; and
(b) an outline of her 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
Full text does not contain this section.