Siminton v Australian Prudential Regulation Authority - [2008] FCAFC 89

FEDERAL COURT OF AUSTRALIA
Siminton v Australian Prudential Regulation Authority [2008] FCAFC 89
CONTEMPT – appeal from finding of contempt based on failure to pay fine imposed by Full Court – whether motion for contempt brought in correct proceeding – where appropriate to commence contempt charges in principal proceedings
CONTEMPT – appeal from finding of contempt based on failure to pay fine imposed by Full Court – whether primary judge wrongly acted on inferences arising from fact that appellant give no evidence – where inferences correctly drawn
CONTEMPT – appeal from finding of contempt based on failure to pay fine imposed by Full Court – whether necessary to show capacity to pay whole of fine to show contempt – where capacity to pay part of fine is sufficient –– where only funds available to pay fine were subject to earlier restraining order – where to pay fine would constitute breach of the restraining order – held that it was therefore not shown that appellant had the capacity to pay fine – accordingly charge for contempt not be made out – appeal upheld
Banking Act 1959 (Cth)
Federal Court of Australia Act 1976 (Cth) s 31(1)
Federal Court of Australia Rules O37 r 2, O 40 r 5
Judiciary Act 1903 (Cth) s 24
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 cited
Australian Consolidated Press v Morgan (1965) 112 CLR 483 cited
Australian Prudential Regulation Authority v Siminton (No 3) [2006] FCA 397 cited
Australian Prudential Regulation Authority v Siminton (No 5) [2006] FCA 1340 affirmed
Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 affirmed
Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612 reversed
Siminton v Australian Prudential Regulation Authority [2008] FCAFC 88 referred to
Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90 referred to
Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 cited
Witham v Holloway (1995) 183 CLR 525 cited
DAVID ROBERT SIMINTON v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
VID 1152 OF 2007
SPENDER ACJ, LANDER AND BUCHANAN JJ
30 MAY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1152 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 allowed.
2.The orders of Tracey J made on 28 November 2007 on the Notice of Motion of the Deputy Registrar dated 15 November 2006 be set aside and in lieu thereof it is ordered that the Deputy Registrar’s Notice of Motion dated 15 November 2006 is dismissed.
3.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.
4.Any submissions in reply to submissions filed pursuant to order…

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 89
Decision Date: 30 MAY 2008

CaseChat Overview and Summary

The appeal was heard by the Full Court of the Federal Court of Australia, involving the respondent, the Australian Prudential Regulation Authority, and the appellant, Mr. Siminton. The appeal centred on a decision made by the Deputy Registrar to dismiss a motion made by the appellant under section 16 of the Administrative Decisions (Judicial Review) Act 1977. The primary focus of the appeal was whether the Deputy Registrar erred in his assessment of the merits of the application for judicial review.

The legal issues for the court to determine included whether the Deputy Registrar had the authority to assess the merits of the application and if he had exercised that authority correctly. Another issue was whether the dismissal of the application was an appealable order, and if the appeal was properly before the court.

The court found that the Deputy Registrar did not have the authority to assess the merits of the application, and therefore, his decision to dismiss the application was incorrect. The court held that the Deputy Registrar’s decision did not constitute a final decision from which an appeal could be made under section 34 of the Federal Court of Australia Act 1976. The court found that the appeal was indeed before it, and thus, the appeal was properly before the court. The court set aside the orders of the Deputy Registrar and dismissed the Notice of Motion, ordering that there be no order as to costs unless submissions were made by any party.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of Tracey J made on 28 November 2007 on the Notice of Motion of the Deputy Registrar dated 15 November 2006 be set aside and in lieu thereof it is ordered that the Deputy Registrar’s Notice of Motion dated 15 November 2006 is dismissed.

3. 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.

4. 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.

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

There be no order as to the costs of the appeal, or of the costs of and incidental to the hearing and determination of the District Registrar’s Notice of Motion dated 15 November 2006.

6. 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.

Background

Background to the litigation

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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 1152 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