Siminton v Australian Prudential Regulation Authority - [2008] FCAFC 90

FEDERAL COURT OF AUSTRALIA
Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90
CONTEMPT – appeal against finding of contempt and orders of imprisonment – whether s 65A of the Banking Act unconstitutional – held not unconstitutional
CONTEMPT – appeal against finding of contempt and orders of imprisonment – whether contempt proceedings part of an abuse of process – held not an abuse of process
CONTEMPT – appeal against finding of contempt and orders of imprisonment – whether interlocutory restraining order applied to money used by the appellant – whether interlocutory restraining order clear enough to found charge for contempt – whether primary judge should have admitted transcript to assist in construction of order – held order clear and designed to operate on future as well as present moneys – held reasons for judgment will be primary source of extrinsic material used in constructing orders – held that in any case order was clear and so there was no error in not admitting transcript
CONTEMPT – appeal against finding of contempt and orders of imprisonment – whether primary judge erred in relying upon appellant’s failure to give evidence to support inferences – held primary judge did not so err – appeal dismissed
Banking Act 1959 (Cth) ss 7, 8, 65A
Athens v Randwick City Council (2005) NSWLR 58 considered
Australian Prudential Regulation Authority v Siminton [2006] FCA 140 referred to
Australian Prudential Regulation Authority v Siminton (No 3) [2006] FCA 397 cited
Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 cited
Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 affirmed
Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612 referred to
Re Macks; Ex parte Saint (2000) 204 CLR 158 applied
Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 cited
Siminton v Australian Prudential Regulation Authority [2008] FCAFC 88 referred to
Siminton v Australian Prudential Regulation Authority [2008] FCAFC 89 referred to
Universal Musical Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 applied
DAVID ROBERT SIMINTON v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
VID 1153 OF 2007
SPENDER ACJ, LANDER AND BUCHANAN JJ
30 MAY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1153 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

DAVID ROBERT SIMINTON
Appellant

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent

JUDGES:

SPENDER ACJ, LANDER AND BUCHANAN JJ

DATE OF ORDER:

30 MAY 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.Any submissions which a party wishes to make in respect of costs are to be filed in the Victorian Registry of the Federal Court of Australia and served by 4pm on Wednesday 4 June 2008.
3.Any submissions in reply to submissions filed pursuant to order 2 are to be filed in the Victorian Registry of the Federal Court of Australia and served by 4pm on Friday 6 June 2008.
4.If no submissions are received, pursuant to order 2, by 4pm on Wednesday…

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: [2008] FCAFC 90
Decision Date: 30 MAY 2008

CaseChat Overview and Summary

The appeal was brought by David Robert Siminton against the Australian Prudential Regulation Authority. The central issue was the enforcement of a committal order against Siminton, who had been found in contempt of the Federal Court of Australia for breaching a suppression order. The Full Court of the Federal Court of Australia was tasked with deciding whether the appeal against the committal order should be upheld and if the contempt proceedings were justified. The court also had to determine the appropriate costs to be borne by the appellant and respondent in the appeal process.

The Full Court dismissed the appeal, affirming the original decision that Siminton's actions constituted contempt of court. The court detailed the history of the suppression order, the breaches by Siminton, and the subsequent contempt proceedings. It was held that the original court had correctly exercised its discretion in finding Siminton in contempt and ordering his committal. The Full Court emphasised the importance of maintaining the integrity of court orders and the authority of the court. The appeal was dismissed on the grounds that the original decision was correct and properly reasoned.

The court ordered that the appellant pay the respondent’s costs of and incidental to the appeal, unless submissions were made regarding costs by the specified deadlines. Additionally, the court stayed the execution of the committal order pending the outcome of a motion to stay, which was to be filed and served by specific dates. If no submissions were made, the appellant would be required to pay the respondent's costs. The court also set out detailed procedural steps for the parties to follow in relation to the costs and the stay of execution of the committal order.

Orders

Orders of the court

1. The appeal be dismissed.

2. Any submissions which a party wishes to make in respect of costs are to be filed in the Victorian Registry of the Federal Court of Australia and served by 4pm on Wednesday 4 June 2008.

3. Any submissions in reply to submissions filed pursuant to order 2 are to be filed in the Victorian Registry of the Federal Court of Australia and served by 4pm on Friday 6 June 2008.

4. If no submissions are received, pursuant to order 2, by 4pm on Wednesday 4 June 2008, the Court’s order as to is:

The appellant is to pay the costs of the respondent of and incidental to the appeal, to be taxed if not agreed.

5. If a submission by any party is filed pursuant to these orders, the Full Court will consider those submissions and will make its order as to costs after considering those submissions.

6. 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 of David Robert Siminton to prison for a period of twelve months, referred to in order 4 of those Orders, be uplifted from the Court file, and be executed.

7. The application for a stay of order 6 of these orders be adjourned.

8. The appellant is to file a Notice of Motion in the Victorian Registry of the Federal Court of Australia seeking a stay of order 6 of these orders, with supporting material, and serve the Notice of Motion and supporting material, by 4pm on Monday 2 June 2008.

9. Any material sought to be relied upon in response to the Notice of Motion in order 8 is to be filed in the Victorian Registry of the Federal Court of Australia and served by 4pm on Tuesday 3 June 2008.

10. The Notice of Motion is returnable at 10.15 on Thursday 5 June 2008.

11. Order 6 of these orders is stayed until 4pm on Thursday 5 June 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPENDER ACJ, LANDER AND BUCHANAN JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER ACJ, LANDER AND BUCHANAN JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1153 OF 2007

BETWEEN:	DAVID ROBERT SIMINTON Appellant
AND:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY Respondent

JUDGES:	SPENDER ACJ, LANDER AND BUCHANAN JJ
DATE OF ORDER:	30 MAY 2008
WHERE MADE:	MELBOURNE