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

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 24
Advan 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 to
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v DAVID ROBERT SIMINTON (NO 8)
VID 1607 OF 2005
TRACEY J
7 NOVEMBER 2007
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:

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
Applicant

AND:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FCA 1612
Decision Date: 7 November 2007

CaseChat Overview and Summary

In the matter of Australian Prudential Regulation Authority v Siminton (No 8), the primary issue was whether the respondent, Mr Siminton, had contravened a court order by using funds that were subject to a freezing order. The court had to determine if Mr Siminton had the capacity to make part payment of a fine and whether he had lawfully accessed the funds in question. The matter was heard by the court, which examined the submissions of both parties and the arguments presented by their counsel.

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

TRACEY J

I found, in Siminton (No 7), that the funds transferred from the Austrian bank and other funds credited to the Visa account were subject to the “freezing order” made by Gray J in January 2006. Mr Siminton should not, therefore, have dealt with these moneys. This does not, in my opinion, lead to the conclusion that he lacked the capacity to make part payment. Counsel for Mr Siminton did not so submit. Mr Siminton, in fact, had obtained access to these funds and used them. He asserted an entitlement to some, at least, of the moneys covered by Gray J’s order. He had the option of preparing an affidavit as to his means and establishing his entitlement to the funds. He chose not to do so. I accept the submission of counsel for the District Registrar that Mr Siminton could, had he wished to do so, lawfully have obtained the right to use the funds to pay the fine by exercising the liberty to apply granted to him by Gray J or by applying to vary Gray J’s orders. He did neither of these things.CONCLUSION I am satisfied beyond reasonable doubt that each element of the charge preferred by District Registrar has been made out. I will give directions as to the steps which need to be taken in advance of a hearing on penalty.

Ratio Decidendi

Legal Principle Established

Established by: TRACEY J

Full text does not contain this section.

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:	TRACEY J
DATE OF ORDER:	7 NOVEMBER 2007
WHERE MADE:	MELBOURNE

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

JUDGE:	TRACEY J
DATE:	7 NOVEMBER 2007
PLACE:	MELBOURNE