Siminton v APRA

[2007] HCATrans 116

[2007] HCATrans 116

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M156 of 2006

B e t w e e n -

DAVID ROBERT SIMINTON

Plaintiff

and

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

First Defendant

JUSTICE TRACEY

Second Defendant

VICTORIAN DISTRICT REGISTRAR OF THE FEDERAL COURT

Third Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 20 MARCH 2007, AT 10.30 PM

Copyright in the High Court of Australia

MR D.B. SHARP:   I appear on behalf of the plaintiff.  (instructed by Erhardt & Associates)

MS D.S. MORTIMER, SC:   If your Honour pleases, I appear with my learned friend, MR ST. J. HIBBLE, on behalf of the first defendant.  (instructed by Australian Prudential Regulation Authority)

HIS HONOUR:   There is a submitting appearance on behalf of the second and I think the third defendants, is that right, or is it only the second defendant?

MS MORTIMER:   There is only, as far as I am aware, a second defendant.

HIS HONOUR:   Yes.  The third defendant does not appear.  Mr Sharp, the matter I know has once been before Justice Crennan and I have read what is presently an imperfect transcript of those proceedings.  What is it that you say I should do today?

MR SHARP:   Your Honour, we would seek directions that the matter should be referred for a hearing by the Full High Court.

HIS HONOUR:   Yes, just before I ask you to develop that submission, Ms Mortimer, what do you say I should do today?

MS MORTIMER:   Your Honour, we put on a summons on 12 February 2007 seeking orders that the application be dismissed pursuant to Order 25.03.3.

HIS HONOUR:   I will just turn that summons out which would seem to be lost in a blizzard of paper.  What date do you say, Ms Mortimer, is it?

MS MORTIMER:   My instructions are it is 12 February 2007, your Honour.

HIS HONOUR:   Not doing well, Ms Mortimer, not doing well. 

MS MORTIMER:   I apologise, your Honour.

HIS HONOUR:   We have submissions of the first defendant of 12 February.  There is document 54A on the file.

MS MORTIMER:   I had understood, your Honour, it was filed and served at the same time as those submissions.

HIS HONOUR:   It is perhaps not a matter of surprise that in this blizzard of paper I am unable to find it.  Anyway, you are seeking to terminate the proceedings summarily, is that right?

MS MORTIMER:   Your Honour, yes, that we say the appropriate order is that the application be dismissed under the rule to which I referred and that is the order we seek today.

HIS HONOUR:   Yes.  Mr Sharp, you say I should refer the matter into the Full Court.  Ms Mortimer says I should terminate the proceedings summarily.  You should deal with both of those issues as you see fit.  Could I, however, direct your submissions at a point convenient to you to this chain of authority.  There is a chain of authority summarised in Re McBain; Ex parte Catholic Bishops Conference 209 CLR 372 at 471, paragraph 279 concerning when this Court grants constitutional relief or prerogative relief to a federal superior court acting within jurisdiction.

There is a string of cases commencing in R v Federal Court of Australia; Ex parte Pilkington ACI 142 CLR 113 at 127 and other cases noted in footnote (350) to my reasons in Catholic Bishops which suggest, at least seems to me, that there are difficulties in the way of a plaintiff having the Court grant prerogative relief to a federal superior court of record like the Federal Court when it is acting within jurisdiction.

I would also direct your attention to this consideration.  As I understand it, the immediate order you seek to challenge is the order of Justice Tracey refusing to terminate the proceeding brought by APRA against Mr Siminton on the basis that it was an abuse.  You sought leave to appeal from that decision and that leave was refused.  Why should this Court get involved at this interlocutory stage of proceedings now pending in the Federal Court?

MR SHARP:   Can I just indicate, your Honour, that I believe you omitted the second arm of the application to Justice Tracey, namely, that it was unconstitutional.

HIS HONOUR: I understand that the bases included some constitutional grounds. Yes, there is a section 80 issue and there are questions about just terms, I understand that. Why should this Court get involved at this interlocutory stage?

MR SHARP:   Your Honour, I would be seeking to rely on the judgment of the Full Federal Court in Bray v F Hoffman-La Roche and, in particular, the judgment of his Honour Justice Finkelstein.  Bray v F Hoffman-La Roche Ltd and Others, your Honour, should be on a brief list of authorities which my instructing solicitor forwarded to the Court yesterday.

HIS HONOUR: Yes, I have that. That is 130 FCR 317. What passage do you direct me to?

MR SHARP:   Your Honour, I have marked the passage that appeared on the Internet.

HIS HONOUR:   What paragraph of the judgment?

MR SHARP:   If your Honour will bear with me for a moment.  Your Honour, I have had handed up to your Honour’s associate a brief points of argument and the relevant reference, I believe, should be on that.  It is paragraph 239, your Honour.  At paragraphs 231 to 241 his Honour deals with the jurisdictional question of when a constitutional challenge must be dealt with and, in particular, at 239 his Honour rules, and the other members of the Federal Court Full Court do not specifically address this, but, of course, the judgment was in accordance with Justice Finkelstein’s decision that the time for dealing with a constitutional challenge must be, in effect, at the time that it was made.  It is not proper for a court faced with such an objection or challenge to defer the matter to the hearing of the trial.

Justice Finkelstein says obviously that it can be stood down for a more appropriate date for the hearing of that objection, but the matter itself should not proceed further until the constitutional question is dealt with.  I would submit that that is a logical and, of course, I would submit, the legal situation that until the constitutional question be determined, there is no way of knowing whether what is thereafter going to occur has any basis for jurisdiction whatsoever.  If the constitutional challenge is eventually upheld, of course, all that has transpired in the interim is futile and a costly exercise in futility. 

So what we object to is, in fact, his Honour is declining to deal with the constitutional issues as evidenced in his ruling.  He makes it clear that he does not deal with the issue and does not propose to deal with the issue at this stage.  He puts it off to the trial.  We say that is a manifest error which should be corrected, with respect, by this honourable Court.

HIS HONOUR:   What exactly is the constitutional point or are the points that you say arise?

MR SHARP:   There are a number, your Honour.  I have itemised three of them and in further detail in the further outline of submissions, which your Honour should have on the file.  There was an original outline which dealt primarily with the abuse of process issues and we then filed a further outline which elaborated on the constitutional law issues and this points of argument I was proposing to touch briefly on what we see are the practical issues that could arise.

HIS HONOUR:   Presumably the constitutional points are sufficiently identified in your 78B notice, a notice of a constitutional matter, where, at least it seems to me, three points are made.  The distinction between a civil and criminal proceeding is a matter of substance not form, no head of power enabling criminal proceedings to be conducted as civil proceedings.  That is number one, is that right?

MR SHARP:   That appears on the notice, your Honour, yes.

HIS HONOUR:   Yes.  That is a point which, at least at first blush, may seem to encounter a little difficulty with the Court’s decisions in Labrador Liquor, I think I am right in remembering, where it is held that the distinction between criminal and civil proceedings is not a bright line and second, with the decisions of the Court in the litigation involving Mr Rich and ‑ ‑ ‑

MR SHARP:   ASIC, I think, your Honour.

HIS HONOUR:   Yes, where again civil penalty proceedings were, I think, identified as a species of their own.  Be that as it may, the next point is the 51(xxxi) point, the acquisition point, that is, that an injunction freezing assets constitutes an acquisition of property.  Is that the point?

MR SHARP:   Not necessarily in general terms, your Honour, but in this case, yes.

HIS HONOUR:   The third is that there is somehow trial of an indictable offence occurring here in a civil proceeding.  Is that right?

MR SHARP:   We say, your Honour, that in this case, yes.

HIS HONOUR:   What is the indictable offence that is being tried in the proceedings in the Federal Court?

MR SHARP:   I would require you to turn, your Honour, to section 65 which, if I can characterise it as such, is an amazing section.

HIS HONOUR:   Section 65 of the ‑ ‑ ‑

MR SHARP: Section 65A of the Banking Act 1959 on which this proceeding is based.

HIS HONOUR:   Yes, my print of the Act is, alas, not ‑ ‑ ‑

MR SHARP:   I might have a spare copy, your Honour, courtesy of the net.

HIS HONOUR:   Has APRA a copy that I can use?

MS MORTIMER:   Yes, we can hand up a copy, your Honour.

HIS HONOUR:   It is unusual for the authority to actually come armed with the Act.  Most Commonwealth authorities seem unable to do that, but there we are.

MR SHARP:   If I may read from paragraph (1):

If a person has engaged, is engaging or is proposing to engage, in conduct that constituted –

so that is the past –

constitutes –

so that is the present –

or would constitute –

that is the future –

(a)      a contravention of a provision of section 7, 8 –

which is not relevant for the proceedings –

66 –

which is –

66A or 67 –

the last two not being relevant and the relevant two of those five being 7 and 66.

HIS HONOUR:   Section 7 is the general prohibition on a person other than the body corporate carrying on a banking business?

MR SHARP:   Yes, and makes it an indictable offence, your Honour.  So what we say here is that the trigger or the contingency which must be met before this section becomes operative is that it has been contravened, is being contravened or proposed to be contravened an indictable offence.

HIS HONOUR:   Yes, and what follows from that?

MR SHARP:   We say, your Honour, that that puts this in a specific category, that the first thing that must be established is the commission of an indictable offence.

HIS HONOUR:   No, a threat to do acts which if committed would constitute an indictable offence perhaps, yes.

MR SHARP:   We say that commingling these three has the effect of confusing the issues.  There would be no basis for a freezing order if all that was being proceeded with is a threat to run a bank, an authorised…..  There are no assets that would need to be frozen if it is to prevent a threat.  What the freezing order must flow from, we say, your Honour, is the previous conduct or the present conduct of the running of a bank.  It is the assets of the bank that is being frozen.

HIS HONOUR: Be it so, let us assume that to be so, why is section 80 of the Constitution thus engaged?

MR SHARP: We say, your Honour, that the effect of section 80 is to this extent, and I know there is considerable law on this, that where there is a specific provision which provides that the relevant offence is an indictable one, then it should be treated as one requiring, upon its determination, trial by jury. I will focus on section 7, your Honour. Section 66 is not an indictable offence, but it is an offence. We say that basically what is being done here is avoiding a trial by jury, but the prior requisite for the whole application of the following subsections of section 65A is that there has been the commission of an indictable offence. Your Honour, that would be the aspects in broad terms of what we would seek to address on that general ground.

HIS HONOUR:   Let me then just pause and see whether I understand it.  Do you say that these constitutional issues that you raise are matters that go to the jurisdiction of the Federal Court of Australia?

MR SHARP:   Yes, we do, your Honour.

HIS HONOUR: In particular, let me understand it, you say that, going up the page as it were, the proceedings constitute the trial of an indictable offence otherwise than in accordance with section 80 of the Constitution and that therefore the Federal Court has no jurisdiction to do that? That is the first of the points?

MR SHARP:   As a civil proceeding, your Honour, yes.

HIS HONOUR:   I understand that.  Second, you say, do you, that the freezing orders or the injunctions that have been made here prohibiting Mr Siminton from dealing with certain assets constitute an acquisition of property otherwise than on just terms?

MR SHARP:   Yes, your Honour.  I have to take you to the terms of the order of Justice Gray to elaborate on that, but, yes.

HIS HONOUR:   But you say that the Federal Court has no jurisdiction to make an order constituting an acquisition of property otherwise than on just terms?

MR SHARP:   Yes.

HIS HONOUR:   That is two?

MR SHARP:   Yes, that is two, your Honour.

HIS HONOUR:   Step three, which is really bound up with step one, seems to be, does it, that whether or not it is an indictable offence, this is in fact trial of crime in the guise of civil proceedings and there is no jurisdiction?

MR SHARP: That is point three, yes, your Honour. I should add that we would be seeking to add, in effect, a fourth aspect which has arisen in the arguments and proceedings as they have developed today to this point. The fourth point is this, your Honour, that when one examines section 65A, which is why I have been moved to characterise it as an amazing provision, it is a provision that is of such width and such lacking in terms of ambit or direction, it virtually, we would characterise it, permits the Federal Court to do anything that it considers appropriate.

Now, one has to step back and ask what sort of powers and functions are we here dealing with when one considers section 65A and, we would submit, trying to characterise them that they incorporate, in effect, a standing royal commission? It is a stand‑by royal commission, but, in effect, there is only one body which can move to activate this royal commission at its behest, which is APRA. So APRA has the power purportedly under this section at its behest to set up a royal commission. I am not going to be precise here, your Honour, but in analogous terms.

HIS HONOUR:   Mr Sharp, it would be very much better if you were very precise.

MR SHARP:   Very well, your Honour, I will endeavour to do that.

HIS HONOUR:   Yes, go on.

MR SHARP: We say that the effect of section 65A is this. It sets up a commission at the behest of APRA whenever so desired. That would constitute the Federal Court as a standing body on stand‑by to await the application of APRA to conduct an inquiry akin to that of a royal commission and/or a court of inquiry because it has more powers than a royal commission. Having investigated the matter, it would constitute the Federal Court then as a court, but a court with powers to make decrees as to the future and unconstrained by any terms of reference or specifics to do whatever it considers appropriate. The only apt analogy, with respect, your Honour, is the Star Chamber. It would be a resurrected star chamber.

Then one has to consider what are the objections. The objections are in the Constitution in that they embody in the one body, they would seek to embody within the one body, an incompatible mix of functions and powers. The separation of powers contained in Chapter III of the Constitution, we say, would specifically enjoin such a section. It would not permit the body that is purportedly endowed with these powers and functions to exist in the one body.

HIS HONOUR:   The method of drafting that we see in the section you identify is a form of drafting that I think can be traced back at least to drafting of the kind considered by the Court in R v The Commonwealth Court of Conciliation and Arbitration and Others; Ex parte Barrett and Others 70 CLR 141 where at 165 Justice Dixon referred to the well‑established principle, a single legislative provision may:

perform a double function, namely to deal with substantive liabilities or substantive legal relations and to give jurisdiction with reference to them.

So that here in 65A you have as a condition, if a person does certain things or threatens to do certain things, the court may grant an injunction.  So it is a relatively familiar form of drafting technique I would have thought.

MR SHARP:   Your Honour, in broad terms, with respect, I would agree with your Honour, but one has to look at the specifics.  There are simply no terms of reference.  The court is empowered to do whatever in the past with respect to the past, with respect to the person, with respect to his assets and with respect to his future conduct.

HIS HONOUR:   To restrain a breach of law?

MR SHARP:   Whatever the court considers appropriate.  Now, your Honour, what is able to be done?  Could the court declare outlaw?  Could it pillory?  Could he be confined to house arrest, which seems to have been partly, at least, done in these proceedings?  Could he be subject to branding, mutilation, all of the remedies which have been applicable to courts in the past as common law or statutory remedies?  There is no limit.  The only limit would be the imagination of the court.

Now, your Honour, that is not a judicial power.  That is a legislative power.  To determine what shall happen with respect to property, person and future events at the discretion of a body is in the nature of a legislative power.  The investigation aspect of what the court is required to do, which we say is, in effect, APRA abdicating its proper role and shifting it to the court, is an administrative function.  Now, these functions when put together in the one body are, we say, a breach of Chapter III.

HIS HONOUR:   These are issues which have not hitherto been raised in the proceedings? 

MR SHARP:   Not this last one, your Honour, but the others have.

HIS HONOUR:   They are matters of which no 78B notice has been given?

MR SHARP:   Not one embodying the last point we just raised, your Honour, yes.

HIS HONOUR:   Why should I entertain the argument?  When I am confronted with a file that is about three inches thick, Mr Sharp, why should I entertain the argument?

MR SHARP:   With respect, your Honour might first consider all of the arguments and then perhaps if it boils down ultimately to the Chapter III argument, then your Honour might, with respect, say then it should be dealt with on notice.

HIS HONOUR:   Because, Mr Sharp, I must say to you that reading the file I am left with an impression which I invite you to dispel of an undue time being taken in the formulation of the case which it is sought to make in this Court.

MR SHARP:   With respect, your Honour, we would say first of all Mr Siminton’s ability to conduct his legal affairs has been severely constrained by what we say is an……order.  He has no assets, funds with which to fund a full and proper legal defence.

HIS HONOUR:   Am I right in understanding the case which APRA seeks to make, whether right or wrong, is that Mr Siminton has invited deposits from third parties and then applied those deposits to his own purposes?

MR SHARP:   I do not know whether they are or not, your Honour.  They have just filed a whole bundle of affidavits which I would, with respect, say do not take that case one step further, in fact, take it two or three steps back.  It makes it quite clear that this is not the case.

HIS HONOUR:   But in any event, you say that without resort to the funds which are subject of restraint Mr Siminton is financially embarrassed?

MR SHARP:   Yes, your Honour, and therefore the conduct of his legal defence to these proceedings, including this application, have been run on a shoestring, if I can put it that way.  We do not have the resources with which to fully investigate and conduct this matter perhaps in a matter in which it would ideally have been done.  But in any event, your Honour, we say that part of the reason for the delay and the blizzard of paper – we would say not partly – that Mr Siminton has been at pains to try and get the principal application on.  We have, at the last count and still counting, six charges of contempt of court, the last two which have just turned up reasonably lately. 

We have been hit, if I can use that term, with a succession of contempt charges which we wrap up within the allegation of an abuse of process, but nonetheless, your Honour, we have been endeavouring to put those to one side and ask that they be dealt with subsequent to the principal application.  We have endeavoured to have the principal application dealt with promptly and to the point.  We have been endeavouring to get it on for over a year.  Part of the problem, we submit, is that APRA does not have a case.  It has been endeavouring to find out what its case is by a variety of means, which is where we come to the abuse of process.

HIS HONOUR:   Why should this Court intervene to further fragment the proceedings which you say your client is so anxious to bring to a conclusion?

MR SHARP:   Because we say the constitutional issues now make it totally irrelevant.  The constitutional issues having been gleaned and ascertained by the application to the process and the matter have made it now quite clear, we say, that this matter is based on a fallacy and based on a lack of jurisdiction which should be dealt with now first.  This is the first issue to be dealt with, the lack of jurisdiction, the jurisdictional error which we have endeavoured to have brought before Justice Tracey and which Justice Tracey has declined to deal with.  If that is dealt with, the matter will be concluded. 

We say that section 65 does not provide a basis for what APRA is endeavouring to do and should not provide a basis. Therefore, all of the other issues are subsumed, at least for the moment, in this issue, the question of the constitutionality of section 65A. If that issue is dealt with, and we say it is an issue of substance, there are a number of reasons which I have canvassed in this latest outline of points of argument which I can take your Honour through if your Honour is so disposed and perhaps propose to do so briefly in a minute, but the primary issue, the initial issue which should be dealt with now is this question of the constitutionality.

We say the abuse of process is also a primary issue, a matter which is an abuse of process which is continuing and which is being used for – even if section 65A was constitutional, we say it is being used for an improper purpose and that is to make a case, to endeavour to find something to justify the case. It should not be allowed to continue, we say, and therefore that is another reason why we say that those are the two issues which, with respect, we would seek to put forward to your Honour as reasons why the High Court should now deal with this now. These are the two issues which are the primary focus, or should, with respect, we say, be the primary focus of the Court. They both go to whether the matter should proceed further and they are both issues that need to be determined.

We say, with respect, the error in Justice Tracey’s ruling is that he declined – although he canvassed the abuse of process issue, we would say in an unacceptable manner, but he canvassed it, and that is a manifest error because we have a number of points to take your Honour to to show the abuse of process, but primarily, if you like, primarily two, the major one of the two are these constitutional arguments which we say render it all nugatory.

The whole process ultimately, if this is correct, as we submit it is, means that these proceedings should go no further.  There should not be a further trial, a further hearing, further expense of a delay.  The matter is extremely oppressive to Mr Siminton.  He is suffering.  There are a large number of third persons who have suffered and will continue to suffer because of APRA’s actions as we say.

There is a large number of people who have been caused a loss of their property in the legal sense by the actions of APRA.  The longer that goes on, the more those people suffer.  This should not proceed, we say, any moment longer than it has to.  If the matter goes to trial, and it is not in any way ready for trial, the latest affidavits we would say make it quite clear that the statement of claim is a nonsense.  It has to be amended.  Therefore, if the statement of claim has to be amended, there are a whole host of further interlocutory steps that will need to be undergone.  The matter has been set down, in a sense, for hearing in June. 

We say if that is correct, and we are in a position to take your Honour through why we say it is incorrect, there will be a whole host of interlocutory steps further.  It will go to trial.  If we succeed almost certainly APRA will have to appeal to this honourable Court.  Conversely, if we fail and we have no funds, we are in the invidious position of having a case which we would seek to appeal to this Court and having to struggle to do so, whereas, if your Honour were to adopt the course which we respectfully urge upon your Honour, this inevitable issue will come before the proper tribunal, the High Court.

It must, we say, given the issues that are now quite manifest, be determined by the High Court ultimately and this is the appropriate time and the most expedient time and the most expedient set of circumstances whereby this could be done.  It can bring the issues to a head.  We might have to go on arguing the matter ad infinitum, going through expensive, time consuming, emotionally traumatising period of time which will traumatise, we say, emotionally a large number of people who are suffering because of this and it will bring matters to a head.  Can I take your Honour to the abuse of process aspect which ‑ ‑ ‑

HIS HONOUR:   How does that arise in the proceedings in this Court?  Can I understand first, is the current form in which you would wish to make the application the amended application filed 20 December 2006 which I see provoked a contest about whether there should be leave to amend, but let us leave that for a moment, but is it the form of 20 December?

MR SHARP:   Yes, your Honour, the amended application.

HIS HONOUR:   What is the ground to which you are now addressing your argument?

MR SHARP:   With respect to the abuse of process ground, your Honour, we would say it would come within the request for the writ of certiorari.

HIS HONOUR:   No, which ground on page 3 of the amended application does this argument come under?  I am not saying it is not there.  I just want to know where it is.

MR SHARP:   It is a while since I have actually canvassed this, if your Honour would bear with me for a moment.  I would rely, in effect, on the blanket provision of paragraph 4.  We say that in accordance with the facts and matters deposed to in the affidavit of Hardy Steffen Erhardt sworn on 8 December 2006 - that is an error.  It was, in fact, ultimately sworn on the 11th – and filed herein and pursuant to the reasons set out in the plaintiff’s outline of submissions – dated again erroneously 8 December 2006 – and also filed herein ‑ ‑ ‑

HIS HONOUR:   It contends that it is an abuse of process.  How is that a ground for the grant of relief of the kind you seek?  Let it be assumed that the proceedings in the Federal Court could be demonstrated to be an abuse of process, why would prohibition or certiorari go?

MR SHARP:   We would submit it would be a denial of natural justice, we say, your Honour, for an abuse of process to proceed.

HIS HONOUR:   It is not immediately apparent to me that that is right.

MR SHARP:   No, your Honour, one would have to look at the facts.  The conduct, as in Williams v Spautz, your Honour, the process of using a remedy or a power for a purpose for what it is not primarily intended to achieve and, we would say, improper purpose, is a denial of natural justice.  There is the power.  It can be brought cosmetically within that power, but we can show, we say, by the evidence that it is not within that power that APRA is proposing to proceed, that the use of that power is for an ulterior purpose.

We have alleged that that ulterior purpose is not to pursue the remedies purportedly contained within section 65A, but to find out what they can by means otherwise than what is properly permitted, otherwise than what they are statutorily empowered to do. They are seeking to subvert, we say, the right against self‑incrimination. By a variety of means they are seeking to get Mr Siminton to either be cross‑examined by way of affidavits to the file or supply information or to plead or to discover or to comply with ancillary orders, all of which are designed to obtain information.

APRA does not know, and we say there is nothing to know, that we hasten to add that aspect of my client’s submission, there is nothing to know that APRA is determined to investigate by processes which are not applicable, we say, in a free country and to a free man.  They are seeking to submit him to all of these processes for which there is no justification.

There is a justification nominally or cosmetically within the terms of section 65A and we say that they are not being used for the proper purpose which section 65A on its face is intended to address. They are being sought to be used for an improper purpose and we say that is a denial of natural justice.

It is a lack of due process, if I can use the American term, your Honour, and the Court, with respect, should not entertain it.  It should not be permitted.  It is an abuse of the processes of the court.  We are being accused of abusing the processes of the court.  We would return that accusation with interest.  We say what is being done to us is an abuse of process.  I can take your Honour through these that we say use the format of bullet points I think it is referred to as, your Honour.

HIS HONOUR:   You say the process instituted by APRA is instituted for purposes other than purposes of the kind contemplated by the statute?

MR SHARP:   Yes.

HIS HONOUR:   I do not think for the moment it would be of assistance to develop the particulars of that.  The complaint you make is that that process has been instituted in the Federal Court for improper purposes?

MR SHARP:   Yes, your Honour. 

HIS HONOUR:   I understand the kind of purpose that you attribute, but for the moment it is sufficient that I know, I think, that your complaint is that there has been an improper purpose?

MR SHARP:   Yes.

HIS HONOUR:   Yes.

MR SHARP:   Those would be the two barrels of our application, your Honour.  Those are the two bases on which we put our application to this honourable Court today.  We say there are those two manifest errors and those two manifest reasons why this Court should address those issues.  They are both ultimately to the jurisdiction.  They are jurisdictional questions and they show jurisdictional error.

HIS HONOUR:   The Federal Court of Australia has jurisdiction, does it not, to decide constitutional questions?

MR SHARP:   Yes, and should have.  We are not denying that it has the power.  We are saying it should have and it did not.

HIS HONOUR:   Your complaint is it has not yet?

MR SHARP:   We say that that is as a matter of law and as a matter of logic and appropriate practice and, as Justice Finkelstein makes clear in his ruling in Hoffman-La Roche in the Full Federal Court, that is not appropriate or accepted.  That the appropriate, acceptable and, we would say, legal requirement is when a constitutional challenge is made, that it is a matter of jurisdiction and the Federal Court is required to deal with it forthwith.  I am not saying forthwith that his Honour should then have said, “Right, I will deal with it here and now”.  Obviously we say, yes, he could have set it down within a specified period of time to be dealt with, but the matter should not have proceeded further otherwise until that matter was dealt with.  His Honour did not do that.  He did the contrary.

HIS HONOUR:   The motion on which you moved in front of Justice Tracey was that of 27 September?

MR SHARP:   Yes, your Honour.

HIS HONOUR:   Where in that do I find the challenge to jurisdiction?

MR SHARP:   I am sorry, again it is a while since I have looked at it.  I think it is exhibited to the affidavit of ‑ ‑ ‑

HIS HONOUR:   It is exhibit HSE 23 to the affidavit of Mr Erhardt sworn 11 December.

MR SHARP:   The notice of motion I have now, your Honour.  The first paragraph deals with the abuse of process and the second paragraph deals – sorry.  Subparagraph (e), I see, it has all been done in one – no, I was wrong.  “Further or other relief” is paragraph 2, but subparagraph (1)(e):

they have been brought unconstitutionally in that they seek and/or provide for the acquisition of the property of the Respondent by the ‑ ‑ ‑

HIS HONOUR:   I understand that, but I do not read that as a challenge to the jurisdiction of the Federal Court of Australia, Mr Sharp.  Have you ever made this complaint to the Federal Court?

MR SHARP:   Of constitutionality, your Honour?

HIS HONOUR:   No, of want of jurisdiction.  You say that you should have relief in this Court because the Federal Court is acting without jurisdiction?

MR SHARP:   Yes, your Honour.

HIS HONOUR:   Where have you ever raised that in the Federal Court?

MR SHARP: Before Justice Tracey, your Honour. We say that it is unconstitutional and that in itself is encompassing the challenge. If something is challenged as being unconstitutional, then it is a matter of jurisdiction of a Federal Court which is a statutory court under the Constitution. If it is unconstitutional and we are alleging that the Federal Court is acting unconstitutionally, then it is implicit and embraced within that argument which was put to his Honour and if your Honour will refer to the ruling, his Honour does address it briefly. He refers to it as a novel argument, I think, if your Honour refers to the ruling. We challenge the constitutionality of the court in dealing with an unconstitutional provision. That is an objection to the constitutional jurisdiction of the court.

Your Honour, can I take – I think it is SE – it was exhibited in both - it was purported to exhibit in the – no, we did not.  We exhibited it to the further affidavit, your Honour.  I think it is HSE 40. Can I take your Honour to that ruling.

HIS HONOUR:   That is Justice Tracey of 6 October?  Yes, I have that.

MR SHARP:   Paragraph 1 in the latter part of the paragraph:

but also include a novel complaint that the proceeding was brought unconstitutionally because, so it is said, it seeks and/or provides for the acquisition of the property of the respondent by the applicant or the Commonwealth of Australia ‑ ‑ ‑

HIS HONOUR:   I have read it, Mr Sharp.  What particularly do you point to?

MR SHARP:   That part of the first paragraph, the latter part of the first paragraph beginning, “but also”.  Paragraph 3 is the collateral abuse of process.  Paragraph 4: 

When counsel for the respondent was pressed as to what had changed since 30 March 2006, he responded by drawing attention to the constitutional argument that he wishes to maintain and contended that there was, in fact, no evidence to support the principal claims made by the applicant in its statement of claim.

His Honour has embodied two aspects in that sentence, but quite clearly I have drawn attention to the constitutional argument.  In paragraph 5 his Honour says: 

I note that the constitutional argument has not been raised in the respondent’s defence to the proceeding.  However, I am told that notices under ‑ ‑ ‑

HIS HONOUR:   As I say, Mr Sharp, I have read the document.

MR SHARP:   I am sorry, your Honour.  I thought your Honour was asking me to refer you to ‑ ‑ ‑

HIS HONOUR:   I ask you to point to what you say is critical for your argument?

MR SHARP:   That is evidence that it was raised before Justice Tracey.  Paragraph 6:

I say nothing as to the merits of the constitutional argument. 

It is quite clear that the argument was put to his Honour:

It remains to be framed and developed.  However, its existence cannot assist in the determination of the strike out application which is the subject of the notice of motion before me.

Your Honour, quite clearly we have raised a constitutional objection.  The constitutional objection is by definition an objection to the jurisdiction of a ‑ ‑ ‑

HIS HONOUR:   No, it is not, Mr Sharp.  That is just not right.  If you could point to the authority that would reveal my error, do, but it seems to me the proposition you advance is just not defensible.

MR SHARP: Your Honour, perhaps I can just briefly elaborate on the argument. The argument was that section 65A is unconstitutional and invalid. The Court relied on section 65 for its jurisdiction for these proceedings. If the argument that section 65A is constitutionally valid is correct, then the court had no and has no jurisdiction to deal with this very application which is made pursuant to section 65A. There is no other basis on which the matter proceeded. The entire proceeding is based on section 65A. Without section 65A first of all there is no case, but there is no jurisdiction. The court cannot, for instance, dispense with the requirements in a freezing order not to ‑ ‑ ‑

HIS HONOUR:   The jurisdiction of the court, I would have thought, stems ultimately from 39B of the Judiciary Act 1903 (Cth), in particular, section 39B(1A):

The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter . . . 

(b) arising under the Constitution, or involving its interpretation -

You wish to raise in the matter now pending in the Federal Court an issue as to the validity of 65A of the Banking Act.  That is a matter I would have thought within 39B(1A) of the Judiciary Act, a matter within the jurisdiction of the Federal Court of Australia.

MR SHARP:   We say that the matter in which the objection was dealt with is a manifest error, a manifest error because it is a matter of jurisdiction and, with respect, your Honour, that is precisely the issue that was dealt with by Justice Finkelstein in these similar circumstances.  The objection was taken that what is being relied on is constitutionally invalid.  That has been determined by Justice Finkelstein in the Full Federal Court to be a matter of jurisdictional error justifying the overturning of the proceedings before Justice Merkel in the lower court, certiorari we would say.  That is what we are seeking and that is what we say is justified by this application.  It is a question which would provide for the proper review by this Court of the determination of the Federal Court precisely for those reasons.

HIS HONOUR:   Yes, is there anything else you wish to add?

MR SHARP:   Does your Honour wish me or not wish me to take your Honour through the abuse of process aspects?

HIS HONOUR:   I understand that you wish to say that the process has been instituted in the Federal Court for improper purposes and that that fact, if demonstrated, would warrant the grant of the relief you seek in this Court.  I understand that.  I do not think I need, at the moment at least, to have argument about whether you have an arguable case that the process has been instituted for improper purposes.  Those are matters upon which we would need to embark if the premise were correct, but I think we should focus on the validity of the premise at the moment.

MR SHARP:   Yes, your Honour.  I am indebted to your Honour for that.  With respect, your Honour has asked for the authority.  I would say that the authority is the ruling of his Honour Justice Finkelstein who elaborated or enunciated the argument or the ruling, but it is, in effect, the ruling of the Full Federal Court in Bray v Hoffman-La Roche that it is a jurisdictional error for a court that has no jurisdiction. If there is no constitutional basis for the court proceeding, it has no jurisdiction. It is not a question of examining the error within the jurisdiction. It is a question of does it have jurisdiction? It has obviously the jurisdiction to determine the issue, but ultimately it is a jurisdictional question which has to be determined. We do not dispute that, your Honour. Section 39B is not in dispute.

HIS HONOUR:   Yes.

MR SHARP:   Your Honour, I believe that would at this stage be my outline, if your Honour pleases.

HIS HONOUR:   Thank you, Mr Sharp.  Yes, Ms Mortimer.

MS MORTIMER:   If your Honour pleases, as the first defendant understands the application made to this Court, it is to invoke this Court’s jurisdiction firstly to review the decision of his Honour Justice Tracey and, secondly, to exercise its constitutional jurisdiction to make certain declarations or orders in respect of the Banking Act and/or, as we understand it, your Honour, section 23 of the Federal Court of Australia Act in relation to the court’s power to grant injunctions.

In relation to both those arguments, your Honour, our submission is that, firstly, there is no jurisdictional error revealed in the decision of his Honour Justice Tracey such that would even warrant your Honour referring this matter to a Full Court or to a fuller hearing before a single Justice.  It is an argument devoid of merit. 

When your Honour asked my learned friend to point to the grounds in the application where my learned friend identified any jurisdictional error, in my submission, my learned friend could not point to any.  That is because there are none, your Honour.  Justice Tracey considered the arguments that were put by my learned friend on his motion.  Your Honour has read Justice Tracey’s decision and he rejected those.  He pointed out in his judgment that they were arguments that had already been agitated before another single justice of that court, namely, Justice Merkel, who had also rejected them.

So in relation to any review of his Honour Justice Tracey’s decision under 75(v) of the Constitution, in our submission, there is absolutely no basis for it, even articulated so that your Honour need not consider whether it is arguable because the plaintiff has been unable to articulate a basis.

In relation to the so‑called constitutional arguments, what appears to be the principal submission on behalf of the plaintiff in that respect is that his Honour Justice Tracey ought to have dealt immediately on the motion with those arguments and, as I understand it, that is supported by my learned friend by a reference to a decision of the Full Court in a judgment of his Honour Justice Finkelstein.

HIS HONOUR:   Just before we come Hoffman-La Roche, it seems to me that it may, it may not be important to notice that no defence had been filed at the time Justice Tracey dealt with the matter which raised the constitutional points.  Is that right?

MS MORTIMER:   That was the submission I was about to make, your Honour.

HIS HONOUR:   Second, the way in which the notice of motion was framed is perhaps important.  Third, it is perhaps also important to recognise the interlocutory or interim point at which it is sought to agitate these issues.

MS MORTIMER:   That is so, your Honour, and that is why, in our submission, there is no error revealed in the way that Justice Tracey dealt with this matter. 

HIS HONOUR:   It becomes important to identify, does it not, that we are not concerned with general error?

MS MORTIMER:   I accept that, your Honour.

HIS HONOUR:   We are concerned with grounds for constitutional or associated relief, in particular.  I do not think it is said there is error on the face of the record, at least not yet said that there is error on the face of the record ‑ ‑ ‑

MS MORTIMER:   Not yet, your Honour.

HIS HONOUR:   But it comes down then, I would have thought, to jurisdictional error, failure to observe an act or requirement of procedural fairness or fraud, and I have in mind Craig v The State of South Australia 184 CLR 163 particularly at 175 to 176 and so far as jurisdictional error is concerned, it comes to mistaken assertion or denial of existence of jurisdiction, misapprehension or disregard of the nature or limits of functions or powers and it is not yet apparent to me, I think, at least not clearly, what limb of jurisdictional error is invoked beyond the proposition that abuse of process equals denial of procedural fairness.

MS MORTIMER:   Your Honour, in our submission, an application to a single justice of the Federal Court to decide whether a proceeding commenced in that court is an abuse of process and a decision by a justice about whether that application is or is not made out is not going to reveal an error that deprives the Federal Court of its jurisdiction unless the judge has sought to go in a way, your Honour, that, in our submission, is almost inevitably going to be revealed on the record way outside the Federal Court of Australia Act.  We are not in that territory, in our submission, your Honour.

HIS HONOUR:   No, and hence the chain of authority culminating in Catholic Bishops.

MS MORTIMER:   In McBain, yes, your Honour.  But apparent from Craig and before, your Honour, in our submission.  My learned friend has not articulated anything else before your Honour this morning, in our submission, that goes close to meeting the thresholds that he is required to meet to persuade your Honour that there is even an argument identified, let alone whether it has merit.

HIS HONOUR:   My understanding of the argument hitherto is that there are two broad limbs to it.  There is what I will call the abuse of process limb which is developed as want of procedural fairness equals jurisdictional error equals ground for grant of relief of the kind sought.  That is one limb which I have perhaps summarised too briefly.  But the other broad limb is described as lack of constitutionality which, as I understand it, has three, with a fourth waiting in the limbs, parts of the proposition where, although 39B(1A) is recognised, it is said nonetheless that Bray v F Hoffman-La Roche requires or suggests some different outcome.  What is it you say about Bray v F Hoffman-La Roche?

MS MORTIMER: Your Honour, I am going to make only a short submission about that because we did not receive any list of authorities from our learned friends last night and I was not aware my learned friend was going to rely so heavily on it, but, in any event, your Honour, the proposition, in my submission, can be decided without recourse to that case and the proposition is this, as your Honour put to my learned friend, that the raising of a constitutional argument before the Federal Court of Australia does not equal, as my learned friend suggests, the raising of an argument that that court has no jurisdiction at all to decide the matter. I now understand my learned friend has conceded that the Federal Court does have jurisdiction under section 39B of the Judiciary Act to decide the question.   If that be the case, then it seems, with respect, that the argument fails at that hurdle.

HIS HONOUR:   Yes.

MS MORTIMER:   If there is a second argument put, your Honour, that this Court ought to deal with constitutional arguments in its original jurisdiction, in our submission, that invitation to this Court ought not be accepted because the matter is squarely before the Federal Court at a trial level.  All that his Honour Justice Tracey has done, in our submission, quite properly, is to say to the plaintiff, “If you want to raise constitutional arguments” which the plaintiff now recognises are within the Federal Court’s jurisdiction, “put them in your defence and the court will deal with them”.  Now, that has not happened, your Honour.

HIS HONOUR:   It seems in part to be, although not put as an application for removal, it is moved by considerations of a kind that would be engaged by an application for removal and that seems to provoke the question why at this stage.

MS MORTIMER:   Exactly, your Honour.  If your Honour was inclined, in our submission, to be generous to the plaintiff and to view it as also an application for removal, although it is not in that form, then it is productive of ‑ ‑ ‑

HIS HONOUR:   No, no, what I had in mind was that, if application for removal would fail because the time is not right, if only because of want of factual foundation established by either agreement or finding at trial, then that seems to be a significant consideration against exercise of a discretion to grant constitutional or associated relief of the kind sought.

MS MORTIMER:   Exactly, your Honour, and, in our submission, that is most apparent in relation to the 51(xxxi) argument where there is no evidence whatsoever about firstly what the property is and who owns it.  So that argument, in our submission, cannot be developed at all without that evidence.  It just does not go anywhere.  So there are a host, in our submission, of discretionary reasons aside from the reasons which go to whether Justice Tracey made any error that took his Honour outside his jurisdiction.  There are a host of discretionary reasons why your Honour should dismiss the application now, allow the matter to run its course in the Federal Court. 

Your Honour can see, in our submission, from the history of this matter that Mr Siminton is vigorously represented, agitates his rights at each and every stage within the Federal Court and your Honour has been given no reason by my learned friend today to think that that will not continue to be the case.  Justice Tracey, in our submission, is dealing with the matter in an efficient way.  Your Honour, we reject the plaintiff’s assertions to your Honour that he has been trying to get this matter on for a year.  We need not detain your Honour with those.

HIS HONOUR:   Was it not Mr Justice McGarvie who said that he would work on the assumption that both parties were equally outraged and that it was all the fault of the opposite party?  I should probably act on a similar basis, should I not, Ms Mortimer?

MS MORTIMER:   If your Honours pleases, yes.  My learned friend is correct when he submits to your Honour that this matter is set down for trial in June, so in terms of your Honour’s discretion, your Honour can be satisfied the matter is listed for trial and about to come on.  So that these matters are not ‑ ‑ ‑

HIS HONOUR:   What date in June is it fixed for, do you know?

MS MORTIMER:   It is 11 June.  Sorry, your Honour, pardon me.

HIS HONOUR:   I hope somebody knows when it is listed for trial so that some party turns up.

MS MORTIMER:   I hope someone is going to tell me when I have to be there, your Honour.  It is 7 June, your Honour.  That, in our submission, makes it absolutely plain that there is certainly no refusal by the Federal Court, if that be a ground, that might now be asserted to deal with these matters.  Does your Honour wish to hear me on any of the constitutional arguments in terms of the merits of them?  Perhaps I ought to add, your Honour, that in relation to this new one which appears to be ‑ ‑ ‑

HIS HONOUR:   There is a difficulty about that, Ms Mortimer, but without 78Bs ‑ ‑ ‑

MS MORTIMER:   There is no 78B notice about it.  Your Honour ought to decline to deal with it.  This plaintiff has had ample time to bring whatever matters he wishes in this application.

HIS HONOUR:   I assume that you deny the validity of the various constitutional challenges that are made against you?

MS MORTIMER:   Your Honour, some can be denied in a sentence such as the allegation that there is some kind of trial on indictment occurring in the Federal Court.

HIS HONOUR:   I think the critical fact for the moment is that the plaintiff would seek to raise these constitutional arguments.  If I do not have to decide whether they are arguable, it is perhaps important that I do not decide whether they are arguable.

MS MORTIMER:   That is, in our submission, an appropriate approach for your Honour to take and your Honour can be confident from his Honour Justice Tracey’s reasons, in our submission, that his Honour is ready and willing to deal with them.  If your Honour pleases.

HIS HONOUR:   Mr Sharp, do I sufficiently capture the two branches of your argument in the way I have described?

MR SHARP:   Yes, I believe so.  They are as set out in this latest points of argument I have headed.  They are the two bases on which we say, with respect, this honourable Court should accept our submissions and make the appropriate orders as we would seek to decide your Honour to do.  There are a number of matters raised by my learned friend that I would seek briefly to address.  First of all, my learned friend was not present, but her learned junior was, when this matter was raised before Justice Crennan and my memory is that, in fact, this fourth issue was raised on that occasion.

HIS HONOUR:   Maybe, but 78Bs have not gone.  The 78Bs are not given as mere idle matters of form.  They are given so that proper notice is given to the various integers of the federation that questions of power are in issue.

MR SHARP:   Yes, your Honour.

HIS HONOUR:   It is not a matter between the parties, Mr Sharp.  The Attorney‑Generals of the Commonwealth and the States and the Territories have their rights.

MR SHARP:   I understood exactly that, your Honour, and as I have previously indicated to your Honour, that insofar as there were other issues, it would only come down to a question ultimately to be decided upon that point if this was the sole constitutional ground.  I was merely raising it because my learned friend was suggesting to the contrary that in some way they had not been given advanced notice of this, that this was something dragged up out of the air at the last moment.  My learned friend elaborated on that with particular respect to the Hoffman-La Roche issue.  Hoffman-La Roche was discussed and the references cited in front of Justice Crennan on 2 February.

HIS HONOUR:   It is unprofitable to stay and worry about who had notice about Hoffman-La Roche.  The question is what do you make of it?

MR SHARP:   With respect, I would seek to elaborate to this extent.  Paragraph 239 occurs – unfortunately on the photocopied page it has been cut off – but it is the last page of the judgment.  I can supply copies and I would be seeking to refer to it.

HIS HONOUR:   I have the report in front of me.  What is the passage to which you refer?

MR SHARP:   It is paragraph 239 on the last page where his Honour turns to this aspect:

However, if I am wrong in characterising the requirement of carrying on business in Australia as non‑jurisdictional, the judge was not entitled –

So his Honour has previously elaborated on the basis that it was non‑jurisdictional –

to put off his determination of that issue unless, in the meantime, all steps in the proceeding were deferred pending the resolution of the jurisdictional issue.  It is the duty of every statutory court to be satisfied that it has jurisdiction to deal with each matter that is brought before it.  In most cases the existence of jurisdiction will be obvious and the matter will proceed without the need for a specific inquiry.  If a query about jurisdiction is raised, or if it is identified by the court, the court must satisfy itself that it has jurisdiction before it proceeds any further with the matter -

and his Honour there cites a number of authorities, and he quotes:

“Jurisdiction” is the right of the court to enter upon the inquiry as to whether or not a cause of action exists in the plaintiff and, if a cause of action does exist, to grant or, if the relief is discretionary, to withhold the relief applied for.  Conversely, lack of jurisdiction is absence of any right in the court to enter upon such an inquiry at all.

That is to say, until the court’s jurisdiction has been established, the court cannot know whether it has the “right” to enter upon the inquiry.  It is only when the right is established that the case can proceed.

We submit that that is this situation, that the court cannot proceed if its statutory basis is invalid.  It has to determine that issue and it has the jurisdiction in that sense to do so.  As your Honour is obviously more than aware, with respect, “jurisdiction” is a word with numerous nuances and variations of meaning, but the basic meaning is clear.  The court nonetheless has the jurisdiction to inquire into whether it has the jurisdiction, but that is as far as it goes, but it must do that when the challenge to its jurisdiction is raised.

We say that that was the decision of the Full Federal Court and that is the situation and your Honour has read, as I have already indicated I will not burden your Honour by taking your Honour again to the step that his Honour Justice Tracey took, which was to not deal with the issue, but to defer it to the trial. 

On that aspect of there being a date set for the trial I would, with respect, reiterate, how can the matter proceed when we have just been given 14 affidavits which, as far as we can ascertain, will make changes and particulars to the statement of claim absolutely necessary.  We have already asked for them.  We have been told that they will be made in due course.  They have not been made.  We have filed a defence.  We submit it is quite clear that the matter cannot properly have been set down for trial in the sense in which that proceeding is normally conducted.  The date for trial cannot be said to be a date for trial for which a matter is ready to proceed.

The invitation has been made to file an amended defence and we would have that right automatically if, as we say, must follow, there must be a change in the statement of claim.  Therefore, to suggest that there is a date set is illusion and the matter will continue to drag on as it has, with respect, for the last year and a half.  We would invite your Honour to cut through that with the Gordian sword and bring the matter to a head - my classical reference has brought mirth to the other side.  Perhaps mirth is the appropriate reaction to it.  One smiles for no other reason, your Honour, but the situation is not ultimately one of smiling.  It is tragic what has happened.  I can only urge upon you, with respect, to enable it to continue would not be appropriate.

HIS HONOUR:   Yes. 

MR SHARP:   My learned instructor just invites me to make it quite clear that there has been a defence, there is a defence which has been extant for some considerable time. 

HIS HONOUR:   That defence had not been filed at the time of the proceedings before Justice Tracey.

MR SHARP:   No, the defence has been filed.

HIS HONOUR:   Subsequently?

MR SHARP:   No, previously.  There is a defence.  It has been sitting there for a long time.

HIS HONOUR:   I see, but there had been no defence raising any constitutional issue?

MR SHARP:   I believe that is correct.

HIS HONOUR:   Yes.

MR SHARP:   So the defence has been there.  We have taken objection to the abuse of process in the defence, but not to the constitutional aspect.  The defence is exhibited to the affidavit, your Honour, or at least further affidavit was omitted.  I recall it was omitted by inadvertence from the original affidavit.  So for those reasons, your Honour, I would submit that my learned friend’s reliance on the purported imminence of the forthcoming trial should not distract your Honour or lead to a conclusion other than what we, with respect, would urge upon you.  Your Honour, unless there is further material I can assist your Honour with, that would be the plaintiff’s submissions.

HIS HONOUR:   Yes, thank you, Mr Sharp. 

On 14 December 2005, the Australian Prudential Regulation Authority, APRA, commenced a proceeding in the Federal Court of Australia against David Robert Siminton.  By that application APRA sought injunctions, both final and interlocutory, and sought orders that Mr Siminton pay certain sums to persons described as persons “who deposited or purported to deposit any moneys with Mr Siminton, the Terra Nova Cache or the Principality of Camside”.

The injunctions which APRA sought were framed as injunctions permanently restraining Mr Siminton by himself, his servants or agents or otherwise from “carrying on any banking business in Australia in contravention of section 7 of the Banking Act [that is to say, the Banking Act 1959 (Cth)], “assuming or using the words ‘bank, banker or banking’ or any words or phrases of like import in relation to its business in contravention of section 66 of the Banking Act” and “advertising, representing or stating that it will carry on a banking business”.

The order is application for order to show cause dismissed.  Yes, Ms Mortimer.

MS MORTIMER:   If your Honours pleases, I apply for an order that the plaintiff pay the first defendant’s costs of that application.

HIS HONOUR:   Yes, Mr Sharp?

MR SHARP:   No, I do not believe there is anything that I could usefully put towards opposing that application, your Honour.

HIS HONOUR:   Yes, thank you.  There will be an order that the plaintiff pay the first defendant’s costs, including reserved costs.

AT 12.31 PM THE MATTER WAS CONCLUDED