Siminton v Australian Prudential Regulation Authority (No 2) - [2008] FCAFC 112

FEDERAL COURT OF AUSTRALIA
Siminton v Australian Prudential Regulation Authority (No 2) [2008]
FCAFC 112
DAVID ROBERT SIMINTON v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
VID 1153 OF 2007
SPENDER ACJ, LANDER AND BUCHANAN JJ
5 JUNE 2008
BRISBANE

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:

5 JUNE 2008

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for a stay of Order 6 of the Full Court made on 30 May 2008 in proceedings VID1153/2007 is refused.
2.The applicant on the Notice of Motion pay the costs of the respondent on the Notice of Motion, to be taxed if not agreed.

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 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:

5 JUNE 2008

PLACE:

BRISBANE

REASONS FOR JUDGMENT
SPENDER ACJ:

This application for a stay raises some significant questions as to the circumstances in which an intermediate appellate court should or should not grant a stay of its orders pending a proposed application for special leave to appeal to the High Court of Australia.
This is an application by a notice of motion dated 2 June 2008 seeking a stay of an order of the Full Court of the Federal Court of 30 May 2008, pending the hearing and determination of an application for special leave to appeal to the High Court of Australia from the orders of the Full Court made on that day.
On 30 May 2008, a Full Court, consisting of Spender ACJ, Lander and Buchanan JJ, dismissed an appeal from orders of Tracey J who had found the appellant in contempt of orders made by Gray J. In respect of those established contempts, Tracey J sentenced the appellant to 12 months’ imprisonment.
On the appeal to the Full Court, the Full Court made an order, amongst others, that:
Pursuant to Order 6 of the orders of Tracey J in proceedings VID 1607 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.
On 30 May 2008, after delivery of the orders of the Full Court and the publishing of the reasons for judgment by the Full Court, counsel for Mr Siminton made an oral application for a stay of the order the subject of this application. I made interim orders staying that order until 4 pm on 5 June 2008, today. That stay was granted on the…

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 112
Decision Date: 5 June 2008

CaseChat Overview and Summary

The case of Siminton v Australian Prudential Regulation Authority (No 2) was heard by the High Court of Australia. The appellant, who had previously been involved in a case against the Australian Prudential Regulation Authority (APRA), sought to appeal the decision of the Full Court. The primary issue before the court was whether the appeal was nugatory, or whether the appeal had a real prospect of success. The court was also required to determine whether the fundamental assumption was made out on the facts of the case. The appellant argued that the appeal was not nugatory and that the fundamental assumption was made out on the facts of the case.

The court considered the nature of the appeal and the circumstances in which it was brought. The court noted that the appeal was brought on the basis of an alleged error of law by the Full Court, and that the appellant had a real prospect of success on the appeal. The court also considered the effect of the orders made by the Full Court, and concluded that the orders did not render the appeal nugatory. The court found that the fundamental assumption was made out on the facts of the case, as the appellant had a real prospect of success on the appeal.

The court ultimately determined that the appeal was not nugatory, and that the fundamental assumption was made out on the facts of the case. The court refused the application for a stay of the orders made by the Full Court, and ordered that the appellant pay the costs of the respondent. The decision of the court highlights the importance of considering the circumstances in which an appeal is brought, and the need to ensure that the appeal has a real prospect of success.

The final orders of the court were that the application for a stay of Order 6 of the Full Court made on 30 May 2008 in proceedings VID1153/2007 is refused, and that the applicant on the Notice of Motion pay the costs of the respondent on the Notice of Motion, to be taxed if not agreed.

Orders

Orders of the court

1. The application for a stay of Order 6 of the Full Court made on 30 May 2008 in proceedings VID1153/2007 is refused.

2. The applicant on the Notice of Motion pay the costs of the respondent on the Notice of Motion, to be taxed if not agreed.

Background

Background to the litigation

The respondent contends that the fundamental assumption is not made out on the facts of this case, and that even if it were, the proposed appeal, should a stay be refused, is not rendered nugatory. Background: The background to the present application appears sufficiently from the reasons for judgment of the Full Court in Siminton v Australian Prudential Regulation Authority (2008) FCAFC 88: 4 In 2002, the appellant registered a business name, “Principality of Camside.” He later set up a website which purported to establish the Principality of Camside as a country, and advertised on that website that “the country” had a “bank” called the “Terra Nova Cache.” 5 The appellant addressed a number of meetings, at which the public was present, for the purpose of encouraging members of the public to deposit funds with the “bank” in return for payment of a high interest rate. A number of people were seduced into investing in the bank and more than 1.5 million was raised. Some investors were paid interest for a period of time, while others received no interest. Some investors who sought repayments of their deposits were unsuccessful. 6 The Principality of Camside and the Terra Nova Cache consisted only of a post box, a registered business name and a website. 7 The respondent is established by the Australian Prudential Regulation Authority Act 1998 (Cth). It has been established for the purpose of regulating bodies in the financial sector in accordance with other laws of the Commonwealth that provide for prudential regulation and for other matters: s 8(1). … Specifically, it has been empowered by s 65A(6) of the Banking Act to apply for injunctions against persons who have or propose to engage in conduct which contravenes certain sections of the Banking Act.8 On 14 December 2005 the respondent commenced a proceeding against the appellant seeking orders in the nature of injunctions pursuant to s 65A of the Banking Act. 9 On 15 December 2005 Sundberg J made interim orders. On 10 January 2006 Gray J made a number of interlocutory orders which were designed to stay in place until the disposal of the proceeding. The orders of Gray J included: 1. Until the hearing and determination of this proceeding or further order, the respondent, whether by himself, his servants or agents or otherwise be restrained from: …(e) dealing with, withdrawing or disposing of, or giving any instructions in relation to the disposition or transfer of, all or any part of the moneys standing to the credit of the Respondent and/or his nominee in any account (whether held alone, jointly or in conjunction with any other person, including any accounts or property in the name of the Principality of Camside or the Terra Nova Cache and any account in relation to which the Respondent is a signatory or which the Respondent otherwise has authority to operate, whether or not the Respondent is named as an account holder and any account which may be operated for the benefit of the Respondent, the Principality of Camside or the Terra Nova Cache) in any bank, building society or other financial institution and, without limiting the generality of the foregoing, account number 3162 1027 8861 in the name of the Principality of Camside with the Commonwealth Bank of Australia; (f) … SAVE THAT with the consent in writing of the Applicant previously given, the Respondent may do any of the things referred to in (d), (e) or (f) in the manner and for the purpose for which the Applicant has so consented.

Evidence

Evidence Before The Court

Full text does not contain this section.

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:	5 JUNE 2008
WHERE MADE:	BRISBANE

JUDGES:	SPENDER ACJ, LANDER AND BUCHANAN JJ
DATE:	5 JUNE 2008
PLACE:	BRISBANE