Siminton v Australian Prudential Regulation Authority

FEDERAL COURT OF AUSTRALIA

Siminton v Australian Prudential Regulation Authority [2007] FCA 2098

Banking Act 1959 (Cth) ss 7, 11, 65A
Federal Court of Australia Act 1976 (Cth) ss 23, 57(1)

Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 cited
Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 followed

DAVID ROBERT SIMINTON v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
VID 992 OF 2007

GRAY J
10 DECEMBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 992 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

JUDGE:	GRAY J
DATE OF ORDER:	10 DECEMBER 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The motions, the subject of the notice of motion filed on 21 November 2007,
be dismissed.

           

2.        The appellant pay the respondent’s costs of the motions.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 992 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

JUDGE:	GRAY J
DATE:	10 DECEMBER 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 26 October 2007, Tracey J delivered judgment in proceeding number VID 1607 of 2005.  The judgment is published under the designation Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608. In the proceeding in which that judgment was given, the Australian Prudential Regulation Authority (“APRA”) sought, among other things, relief by way of a permanent injunction against the respondent, Mr Siminton, pursuant to s 65A of the Banking Act 1959 (Cth) (“the Banking Act”). Section 65A provides that the Court may grant an injunction restraining a person from engaging in conduct, or requiring the person to do a particular act or thing, in such terms as the Court thinks appropriate, if there is a contravention or threatened contravention of the Act.

2. The particular provision to which attention was directed in that proceeding was s 7 of the Banking Act, which effectively prohibits carrying on the business of banking without a licence. Tracey J was satisfied that Mr Siminton had collected money by way of deposits from members of the public, as a result of his solicitation of those deposits, and had promised returns at a very high level, 40 or 50 per cent, described as a “profit share”, rather than interest. His Honour was satisfied that Mr Siminton did not fall within s 11 of the Banking Act, which would have entitled him to carry on banking business and that, therefore, he was in contravention of s 7. A significant part of his Honour’s findings about the carrying on of the business of banking related to the proposition that Mr Siminton had lent money, in the sum of $100,000, from the moneys deposited with him,…