Siminton v Australian Prudential Regulation Authority

[2008] HCA 44

HIGH COURT OF AUSTRALIA

KIRBY J

DAVID ROBERT SIMINTON   APPLICANT

AND

AUSTRALIAN PRUDENTIAL REGULATION
AUTHORITY  RESPONDENT

Siminton v Australian Prudential Regulation Authority
[2008] HCA 44
2 July 2008
M45/2008

ORDER

1.     The application for bail is refused.

2.     The applicant must pay the respondent's costs of this application.

3.The hearing of the applicant's application for special leave expedited to 1 August 2008.

Representation

D B Sharp for the applicant (instructed by Erhardt & Associates)

D S Mortimer SC with S J Hibble for the respondent (instructed by Australian Prudential Regulation Authority – Melbourne)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Siminton v Australian Prudential Regulation Authority

High Court practice – Bail – Power of High Court to grant bail as incident of application to invoke appellate jurisdiction – Application made prior to grant of special leave to appeal from orders of the Federal Court of Australia convicting the applicant and imposing order of imprisonment for contempt of court – Exhaustion of remedies in Federal Court both in respect of appeal against substantive orders and refusal of bail by that Court – Whether refusal by High Court to grant bail would render proceedings in High Court nugatory or lacking in utility – Whether special or exceptional circumstances shown – Estimate of prospect of success in application for special leave – Bail refused – Hearing of application for special leave expedited.

Words and phrases – "special circumstances", "exceptional circumstances".

1. KIRBY J.   Before the Court is a summons seeking an order that Mr David Siminton (the applicant) be admitted to bail on conditions fixed by the Court. 

   The background to the application

2. On 7 November 2007, Tracey J, in the Federal Court of Australia, found the applicant guilty of multiple charges of contempt of court arising out of breaches of an order earlier made in that Court by Gray J.  Gray J made his orders on 10 January 2006.

3. For the contempt found, on 28 November 2007, Tracey J pronounced the necessary order and imposed on the applicant a penalty of 12 months imprisonment.  The applicant appealed against that order.  He challenged the basis for the finding of contempt, although he did not bring a separate challenge against the penalty. 

4. Effectively, Tracey J stayed the commencement of his order for imprisonment pending the resolution of the applicant's appeal to the Full Court of the Federal Court.  He did this by ordering that the warrant lie, unexecuted, in the registry of the Federal Court pending the hearing and determination of the applicant's appeal to the Full Court or further order. 

5. On 30 May 2008, the Full Court of the Federal Court (constituted by Spender ACJ, Lander and Buchanan JJ) dismissed the appeal from Tracey J's orders.  The Full Court made an order[1]:

   "Pursuant to order 6 of the Orders of Justice Tracey in proceedings VID 1607 of 2005 made on 28 November 2007, the warrant for the committal…