Australian Prudential Regulation Authority v David Robert Siminton

RULING 1 By notice of motion, dated 27 September 2006, the respondent seeks orders in substance striking out the proceeding that is presently before the Court, on the ground that it constitutes an abuse of process. Various particulars of that claim are contained in the notice of motion with varying degrees of clarity. They include a number of allegations that have been agitated before another judge of this Court earlier in the year, but also include a novel complaint that the proceeding was brought unconstitutionally because, so it is said, it seeks and/or provides for the acquisition of the property of the respondent by the applicant or the Commonwealth of Australia without just terms, contrary to the provisions of section 51(xxxi) of the Constitution. 2 As I have already indicated, a number of these matters were agitated before another judge earlier in the year. Justice Merkel dealt with these matters on 30 March 2006 and his reasons for judgment appear as Australian Prudential Regulation Authority v Siminton (No 2) [2006] FCA 336. The application to his Honour to strike out various orders made earlier by Sundberg J, Gray J and himself were all rejected, as too were a strike out application in relation to the statement of claim and an application to stay the proceeding until after the determination of what were described as 'criminal activities', alleged to appear in the statement of claim. His Honour rejected all of these grounds. 3 The substance of the argument that was put before me this morning on behalf of the respondent was that these various interlocutory processes constituted evidence of a collateral purpose being pursued by Australian Prudential Regulation Authority ('APRA'), which rendered the proceeding an abuse of process. The allegation was based on alleged misconduct on the part of APRA at various interlocutory stages of the proceeding. That conduct, in the main, involved the seeking of interim and interlocutory orders from the Court, which applications were granted. 4 When the efficacy of those orders were challenged before Merkel J in March of this year, as has already been noted, his Honour rejected those claims. I do not sit this morning on appeal from his Honour's decision. When counsel for the respondent was pressed as to what had changed since 30 March 2006, he responded by drawing attention to the constitutional argument that he wishes to maintain and contended that there was, in fact, no evidence to support the principal claims made by the applicant in its statement of claim. 5 I note that the constitutional argument has not been raised in the respondent's defence to the proceeding. However, I am told that notices under s 78B of the Judiciary Act 1903 (Cth) have been served on the various Attorneys-General and that they have, in each case, indicated that those who have thus far responded have, do not wish to intervene in the proceeding, at least at this stage. 6 I say nothing as to the merits of the constitutional argument. It remains to be framed and developed. However, its existence cannot assist in the determination of the strike out application which is the subject of the notice of motion before me. If the respondent wishes, in due course, to raise the constitutional argument as a defence or, indeed, any other arguments as defences that do not already appear in the defence as filed, then the respondent will need to apply for leave to amend his defence prior to trial. I will return to that issue shortly. 7 As to the 'no evidence' issue, the same claim was made before Merkel J, and failed. What is said is that APRA has not, in the intervening period, supplied evidence to the respondent to fill the void that allegedly existed on 30 March 2006. I do not accept that APRA was under any obligation to supply such evidence. The time for it to be supplied will be when the matter is being readied for trial and I propose shortly to give directions to that end. These directions will also provide for leave to file an amended defence if the respondent is so advised. 8 If, as is alleged, the applicant lacks evidence to support its claims, then that will, no doubt, become apparent when the witness statements are filed in advance of trial or at the trial itself. That is a matter that must remain for future consideration. It is not a basis for striking out the proceeding. Accordingly, in my opinion, the notice of motion that has been filed by the respondent should be dismissed. 9 The order of the Court will be that the respondent's application, made by notice of motion dated 27 September 2006 be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.