Siminton v APRA & Ors

[2007] HCATrans 25

[2007] HCATrans 025

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

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 FEBRUARY 2007, AT 12.23 PM

Copyright in the High Court of Australia

MR D.B. SHARP:   I appear for the applicant.  (instructed by Erhardt & Associates)

MR ST. J. HIBBLE:   I appear for the respondent.  (instructed by Australian Prudential Regulation Authority)

HER HONOUR:   Yes, thank you.

MR SHARP:   His Honour Justice Tracey has filed a submitting appearance, your Honour.

HER HONOUR:   Thank you for that indication.

MR SHARP:   Your Honour, on this occasion I am reasonably confident that your Honour should have at least the outline of the plaintiff’s submissions.

HER HONOUR:   I do have that, thank you, and I have the amended application.

MR SHARP:   Thank you, your Honour, that was filed previously.  It should not have been filed because, of course, we were denied consent to that, so we have filed this morning a summons and affidavit in support of an application for leave to amend the application.

HER HONOUR:   Yes, I see, and you have sought the defendant’s consent in relation to that and that has been withheld.

MR SHARP:   It was rejected, your Honour, yes, denied.  We accordingly have filed an application to amend it to include the further constitutional
writs of mandamus and prohibition along with certiorari.  We believe that it would be appropriate and proper that all three writs should be sought rather than simply certiorari.  There are two other affidavits your Honour should have on the file, the original affidavit of my instructing solicitor and a supplementary affidavit of my instructing solicitor.

HER HONOUR:   Yes.  So the first affidavit is a very long set of exhibits?

MR SHARP:   Yes, that is the major one, your Honour, yes.

HER HONOUR:   Yes.  Which would you like me to look at now?

MR SHARP:   There is a supplementary affidavit with some exhibits also.

HER HONOUR:   Yes, I have that.

MR SHARP:   Does your Honour wish me to formally read it?

HER HONOUR:   Yes, thank you.

MR SHARP:   Does your Honour wish me to read them aloud?

HER HONOUR:   No, Mr Sharp, you have indicated that you want them read.  That is to say that I can indicate to you I have read them.

MR SHARP:   If your Honour pleases. 

HER HONOUR:   Your application today is for directions?

MR SHARP:   Yes, simply for directions, your Honour, for the hearing of this matter.  We would submit that there are a number of bases for the application.  First of all, we submit there is patent error on the face of the record.  We say that Justice Tracey declined to deal with the constitutional grounds on which we sought to set aside or permanently stay or dismiss the principal application.  We say that he should not have done this.  He should have addressed the issue forthwith.

HER HONOUR:   Just before you go into the detail, I just want to clarify this.  This is also an application in respect of an order made by Justice Tracey on 6 October 2006?

MR SHARP:   Yes, he made three orders on that day.

HER HONOUR:   Yes, but this particular application is in relation to orders where his Honour ordered that the now plaintiff’s notion of motion be dismissed with costs?

MR SHARP:   Yes.

HER HONOUR:   That was a notice of motion to strike out the defendant’s action?

MR SHARP:   Yes, what I have referred to as the principal application, the matter that commenced it all back in ‑ ‑ ‑

HER HONOUR:   Has any application been made to the Full Court of the Federal Court?

MR SHARP:   Yes, we sought leave and leave was refused.  Justice Weinberg heard the application, and your Honour should have that in the supplementary affidavit.

HER HONOUR:   Yes, I see, it is in the supplementary affidavit.  Thank you.

MR SHARP:   So we submit that there is nothing further we can do in the Federal Court to pursue the matter but we say, nonetheless, that this is a matter which properly, with all due respect, calls for appellate or constitutional writ attention.

HER HONOUR:   Relief.

MR SHARP:   Yes, thank you, your Honour.  The first manifestation, we say, of error is that his Honour in his judgment declined to deal with the constitutional relief sought.  He proposed that it should be dealt with at a later date.  We say that that is clearly an error.  We rely on the judgment of Justice Finkelstein in the Full Court of the Federal Court in Bray v Hoffman-La Roche Limited (2002) 118 FCR 1. The trial was before Justice Merkel. The only reference I have to the appeal is the Internet reports [2003] FCAFC 153. Justice Finkelstein was the only one to address the actual issue as to whether or not the trial judge, Justice Merkel, should have put the matter off.

His Honour ruled that he did not have to deal with the constitutional issues forthwith and proposed by order that they should be dealt with subsequently at the trial or prior to trial.  The appeal did not turn on this question, but Justice Finkelstein did address it and he ruled that that was incorrect, that in a matter of the constitutional challenge that that matter must be dealt with forthwith upon the matter being raised and that, with respect, follows, we would submit, as a matter of logic and as a matter or precedent.  The logic of the court proceeding further when it might well not have a proper basis to do so is not appropriate.  It is illogical, we would say, and Justice Finkelstein made that point quite clearly.  Also, it is oppressive to the party for whom this matter has been raised. 

The matter should not proceed, involving him in risk, involving him in cost, in trouble.  He is, just to particularise this case, now in risk of being imprisoned for contempt.  There are, it would appear, two contempt proceedings extant against him on past performance.  They have not been adjourned pending the determination of the principal application for the hearing of possible criminal charges, as has been sought.  So, unless this constitutional issue is dealt with forthwith, not only is the Federal Court possibly proceeding without jurisdiction, but it leaves Mr Siminton at risk of, as I say, an extreme case of going to gaol, which may in the end prove not to have been justified. 

We say that the error manifest in Justice Tracey’s ruling of 6 October with respect to this motion is that he simply did not deal with the constitutional relief sought.  But there are other grounds.  The constitutional relief sought - there are a number of bases on which we say the matter is open to constitutional challenge, and I will briefly go through them, your Honour, of which we say this matter clearly raises a number of issues.

HER HONOUR:   In a sense, this is really a directions hearing.  I have read the grounds, Mr Sharp.

MR SHARP:   Yes.  I have re‑read the grounds, your Honour, and just briefly, there are perhaps two further grounds of constitutional challenge which I would seek, if we proceed further, to add by way of either amendment to the application or further ‑ ‑ ‑

HER HONOUR:   A further amendment.

MR SHARP:   Certainly further outline and affidavit.  They are these.  We say the charges are criminal charges.  They are clearly crimes in every sense.  They are, in one instance, an indictable offence and the other – that is section 7 of the Banking Act – and the other, section 66, is a criminal offence.  Therefore, we are dealing with criminal offences. We say that what has been happening in the Federal Court, what is proceeding is a civil action, a civil proceeding with all of the panoply of a civil proceeding.  We have had defence, we have had discovery, we have had further and better particulars. We have had all of these things and we say that quite clearly it is a civil proceeding which is proceeding on the civil proceeding remedies, rules and standards of proof.

We say that there is no head of power, and I do not think this is clearly brought out in the outline, although I have alluded to it and had previously raised it.  It is not clearly brought out but we say there is no head of power for the legislature to legislate that a criminal proceeding should be conducted as a civil proceeding.  Secondly, we say that section 65A is incompatible with the judicial function.  It leads, we would submit, to investing or purported investing of the judicial arm of government with the legislative function and particularly we say insofar as it purports to providethat the court can make orders compelling someone to do something completely divorced or separate from any criminal proceeding is in effect to legislate.

HER HONOUR:   In due course you propose to bring some amended grounds?

MR SHARP:   We would seek - those are the two ‑ ‑ ‑

HER HONOUR:   Yes, thank you. 

MR SHARP:   If we proceed, your Honour, if we are successful today we would be seeking that.

HER HONOUR:   If you proceed, yes.  Thank you.

MR SHARP:   We say there are, in effect, four or five constitutional bases or constitutional areas which we would rely on to challenge the legislation.  Of course, we also say that it is an abuse of process and we say that is also a basis for constitutional relief and we say that abuse of process is manifest.  Your Honour will note that I have gone through the process of, by inference, raising the abuse that must follow from the proceedings.  We say that it can be characterised as an attempt to obtain information to justify a charge and we say that the bases on that are numerous.  We have offered the plaintiff in the matter - the principal application – we have offered the applicant everything we say that it could hope to achieve, even accepting its view of the validity of section 65A.

HER HONOUR:   There is no need to go into detail in relation to the merits ‑ ‑ ‑

MR SHARP:   Yes.  Your Honour, I would be reiterating the arguments that otherwise I have put in the ‑ ‑ ‑

HER HONOUR:   Yes, I understand.  I will hear from Mr Hibble .

MR HIBBLE:   If I could just ask whether your Honour has reached a view in relation to the sort of two applications that appear to be before the Court today?  In relation to the first application for certiorari, we would make an application under Rule 25.03.3 that that be dismissed, firstly because there is potentially no jurisdiction for that writ alone and, secondly and primarily, because there are no intelligible grounds of jurisdictional error identified in the outline of submissions put forward by the plaintiff.

In relation to what I will call the second application, the one we understand which is to be filed today or soon thereafter, we did receive a copy of that late last year.  The application has changed but as far as I am instructed, the outline of submissions remains the same.

HER HONOUR:   Perhaps the best course – have you a summons on foot in relation to your application under Rule 25.03.3?

MR HIBBLE:   No, your Honour.

HER HONOUR:   Are you filing any material in relation to the application?

MR HIBBLE:   No, your Honour.  We wanted to see which way it was going today.

HER HONOUR:   I am just concerned that Mr Sharp has a proper opportunity to respond to your application, there being no summons.

MR HIBBLE:   Correct.

HER HONOUR:   Did you inform him about it beforehand or is this taking him by surprise?

MR HIBBLE:   We were unaware until at the door of the Court whether the second application was going to be made.

HER HONOUR:   It may be the best course is to adjourn this to another day, allowing Mr Sharp to complete or finalise his amendment application.  That is, of course, if he wishes to pursue because at the moment he is seeking leave to amend but he wishes to further amend.

MR HIBBLE:   Correct.

HER HONOUR:   It probably is appropriate if I indicate now that in the absence of a summons, nevertheless the argument that you have indicated you wished to raise under Rule 25.03.3 could be dealt with on the same occasion so that Mr Sharp has proper opportunity to complete his amendment proposals.  You will be served with copies, of course, and I would require you to serve Mr Sharp with an outline of argument in respect of the application you are making under Rule 25.03.3.  Does that seem a course with which you would be content?

MR HIBBLE:   We would be happy with that, your Honour.

HER HONOUR:   Mr Sharp ‑ ‑ ‑

MR SHARP:   I cannot see any fault with that reasoning, your Honour, yes.

HER HONOUR:   I am concerned that in order to give you the opportunity to properly answer the application for dismissal, it seems to me that it would be appropriate to have written submissions.

MR SHARP:   With respect, your Honour, I can only agree.

HER HONOUR:   Yes, very well.  I will just work out a date.  What I would propose, subject to any other suggestions, is that any further amendments to the application to be the subject of leave to be filed within seven days by the plaintiff and that written submissions in relation to both the application for leave to amend and the defendant’s application for dismissal of the application under Rule 25.03.3 be exchanged within 10 days of today’s date.

MR SHARP:   We can meet that timetable, your Honour.

HER HONOUR:   Yes, very well.  I will make those directions.

MR SHARP:   If your Honour pleases.  Would your Honour reserve the costs of today?

HER HONOUR:   And I will reserve the costs.  Thank you.  Adjourn the Court.

AT 12.43 PM THE MATTER WAS CONCLUDED