Siminton v Australian Prudential Regulation Authority

Background: 15 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. 16 On 28 November, Tracey J, in proceedings 1607 of 2005 ([2007] FCA 1814), said: 1 On 7 November 2007, I found that Mr Siminton had committed eight contempts of Court involving contraventions of an order made by Gray J on 10 January 2006: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609. … 2 Gray J's order restrained Mr Siminton from dealing with, withdrawing or disposing of moneys held in various accounts. The contempts were committed when Mr Siminton either caused the funds to be transferred from such accounts into an account held by a Mr & Mrs Holzheimer in the Bank of Adelaide or he withdrew transferred funds from Holzheimer's account. Mrs Holzheimer had obtained a Visa card which she provided to Mr Siminton. The card enabled Mr Siminton to draw on the account at automatic teller machines and, by presenting the card, to undertake credit card transactions with merchants. He used the card for these purposes. 3 Charges 1.1 to 1.5 related to transfers into the Holzheimer's account from a Mobile EFT Pty Ltd account controlled by Mr Siminton. … 4 Charge 1.7 related to the use, by Mr Siminton, of moneys transferred into the Holzheimer's account. … 5 Charge 1.9 related to a direction by Mr Siminton to the Anglo-Irish Bank in Austria to transfer $25,000 (less bank charges) to the Holzheimer's account. The transfer occurred on 16 August 2006. 6 Charge 1.11 was concerned with a series of transactions, undertaken by Mr Siminton between 16 August 2006 and 28 September 2006, in which he either withdrew money or undertook credit transactions totalling $21,377.93 from the funds which he had caused to be deposited into the Holzheimer's account. 17 At [8] Tracey J found: 8 APRA contends, and I accept, that Mr Siminton's conduct, in each case, was "deliberate, calculated and disguised." He was well aware of the orders made by Gray J and the constraints which those orders imposed on him. Nonetheless, he continued to draw on funds which he knew were the subject of his Honour's orders. On 11 April 2006, the day after Merkel J sentenced Mr Siminton for having breached orders made by Sundberg J, Mrs Holzheimer reported to the Adelaide Bank that her Visa credit card had been lost. A replacement card was issued on the same day. It was that card which Mr Siminton used to make the withdrawals or incur the expenses which are the subject of Charges 1.7 and 1.11. The arrangements with the Holzheimer's, pursuant to which Mr Siminton was able to obtain a card to operate their account and was able to transfer funds into it and withdraw funds from it, was designed to mask the fact that Mr Siminton was, as he well knew, acting in breach of Gray J's orders. 18 Tracey J relevantly ordered: 1. It be declared that the respondent is guilty of contempt by reason of the matters set out in Charges 1.1, 1.2, 1.3, 1.4, 1.5, 1.7, 1.9 and 1.11 of the statement of charge dated 14 December 2006. … 3. The respondent be imprisoned for a period of twelve months in respect of each of the contempts referred to in paragraph 1 of these Orders, each sentence to be served concurrently with each other sentence. 4. A warrant issue for the committal of the respondent to prison for a period of twelve months. … 6. The warrant issue pursuant to paragraph (4) of these orders lie on the Court file until further order. 19 On 30 May 2008, a Full Court of the Federal Court, reported at [2008] FCAFC 88 in proceedings VID992/2007, dismissed an appeal by the applicant from the orders of Tracey J in VID1607/2005 of 28 November 2007. In particular, the Full Court rejected the arguments advanced on behalf of the applicant that: (i) Section 65A of the Banking Act 1959 (Cth) (Banking Act) was constitutionally invalid; (ii) The various proceedings by the Australian Prudential Regulation Authority (APRA) in respect of its proceedings against Mr Siminton constituted an abuse of process; (iii) The applicant had not engaged in the business of banking or that it had not been established that the applicant had proposed to carry on the business of banking. 20 In a separate judgment, [2008] FCAFC 90, the Full Court of the Federal Court rejected the contention that Order 1(e) of the Orders of Gray J on 10 January 2006 applied only to moneys held in the identified accounts at the date of the Order. The Full Court said, at paragraph 18: Tracey J found that the order applied to all monies standing to the credit of the relevant accounts during the currency of the orders and was designed to restrain the appellant from conduct of the kind referred to in the orders during the currency of the orders. We agree. … 21 The Full Court rejected the contention that, in determining the proper construction of Order 1(e) of Gray J of 10 January 2007, for which his Honour had given reasons for judgment for making, Tracey J was obliged to have regard to the transcript of the proceedings before Gray J which had occurred prior to the making of those orders. 22 The Full Court further rejected that there was any legal error in the use made by Tracey J in drawing inferences from the circumstance that Mr Siminton had not given evidence on his own behalf nor called evidence on his behalf. 23 The Full Court ordered, amongst other things: 1. The appeal be dismissed. … 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. … 11. Order 6 of these orders is stayed until 4 pm on Thursday 5 June 2008. An Application of the Agreed Principles to this Application. 24 The crucial question on this application is whether a stay is necessary to preserve the subject matter of the foreshadowed special leave application. This immediately requires identification of what is the subject matter of the foreshadowed special leave application. That identification, to me, is crucial to the determination of the stay application. On the material before me I think it is likely that an application for special leave will not be heard by the High Court prior to 1 August 2008. The theoretical possibility that it might possibly occur on 13 June, I think can, as a matter of practicality, be rejected and so I proceed on the basis that any application for special leave will not be heard until 1 August 2008. 25 The position, therefore, is that if a stay is not granted, the application for special leave is likely to take up to two months to be heard and, during that period, or most of it, Mr Siminton would be in prison. 26 Counsel for the applicant submits, first, that the application for special leave is not without merit and, secondly, not to grant a stay would require Mr Siminton to endure a period of imprisonment of up to two months with the humiliation, hurt, and damage that that would necessarily incur and which, in the event of a successful application for special leave to appeal, and a successful appeal, would be irremediable. In those circumstances, it was submitted, a stay should be granted as not to do so would be to render his application for special leave nugatory. 27 The respondent opposes the grant of stay. It is asserted on its behalf that the prospects of a successful special leave application are remote in the extreme and that, in any event, not to grant the stay would not render the proposed appeal nugatory. These competing submissions focus attention on the question of whether a stay is necessary to preserve the subject matter of the litigation. 28 Notwithstanding the extensive material to which I have been referred, it seems to me that there are two cases of central significance: the first of those is Beljajev v Director of Public Prosecutions and Another (1991) 173 CLR 28, (Beljajev) and the second is the judgment of Gummow J in Pelechowski v The Registrar, Court of Appeal (NSW) of 26 February 1998, reported in (1998) 72 ALJR 711, (Pelechowski). In Beljajev, Brennan J, as he then was, said at 30: The applicant filed an application for special leave to appeal to this Court on 2 May 1991 and the present application seeks an order that the order of Marks J. be stayed pending the hearing by this Court of the application for special leave to appeal. Alternatively, bail is sought pending a hearing of the application for special leave. Brennan J continued: The jurisdiction of this Court to make an order either preserving the status quo pending the hearing of an application for special leave to appeal or to grant bail pending the hearing of such an application has been considered in several cases. 29 That sentence seems to me to indicate that there is no crucial difference in terms of principle between an application for bail and an application for a stay of an order requiring a person to serve a term of imprisonment. 30 The circumstances in Beljajev are as follows: on 13 July 1990, the applicant (Mr Beljajev) was charged with conspiracy to import prohibited imports contrary to a provision of the Customs Act, as well as trafficking in a drug of dependence. On 11 April 1991, in the County Court at Melbourne, he was granted bail. The Director of Public Prosecutions for the Commonwealth and for Victoria each appealed to the Supreme Court. Marks J allowed the appeal and ordered that Beljajev be again committed to prison to await his trial. 31 On 2 May 1991, Beljajev filed an application for special leave to appeal to the High Court against the order of Marks J and applied in the High Court for the order of the Supreme Court to be stayed pending the hearing of his application for special leave. Alternatively, he applied for bail pending the hearing of the special leave application. In those circumstances the position was that Mr Beljajev had been charged with a criminal offence, had been ordered into custody, and prior to any determination of guilt, had been required to remain in custody pending his trial. After making the observations to which I have earlier referred, Brennan J, at 30, said: In Chamberlain v. The Queen [No 1] [(1983) 153 C.L.R. 514, at p.518] I expressed the opinion that: "the power of this court to grant bail rests on the inherent power to preserve from futility the exercise of the Court's jurisdiction to grant special leave to appeal and to allow an appeal thereafter." His Honour continued: In Federal Commissioner of Taxation v. Myer Emporium Ltd. [No.1] [(1986) 160 C.L.R. 220, at pp. 222-223], Dawson J. said, in reference to an application for stay pending the hearing of an appeal: "Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory [See Wilson v. Church [No. 2] (1879), 12 Ch.D. 454, at p. 458; Klinker Knitting Mills Pty. Ltd. V. L'Union Fire Accident and General Insurance Co. Ltd, [1937] V.L.R. 142]. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed" [See McBride v. Sandland [No.2] (1918), 25 C.L.R. 369]. Brennan J continued: The test which his Honour there expressed is not, I think, significantly different from the test of futility which I had expressed in Chamberlain. Chamberlain's case was a case of an application for bail after conviction and sentence. This case is thus distinguishable. 32 The present case is not an application for bail after conviction by a jury, the imposition of a sentence and an unsuccessful appeal against conviction. Those were the circumstances that applied in Chamberlain. Nonetheless, this is a case where there has been a determination of guilt of contempt and the imposition of a sentence of 12 months' imprisonment by the primary judge. 33 There has been an unsuccessful appeal against those orders. This is not an application for bail, but an application for a stay. None of those differing circumstances, in my opinion, have the consequences that the principles to be applied on the present application are different from the circumstances to be considered in cases such as Chamberlain. 34 In my opinion, the fact that the verdict in Chamberlain was by a jury and the present case is concerned with a determination of contempt by a judge is not determinative of the applicable principles. 35 Brennan J, in my respectful opinion, identifies with some precision the issue in the present case. He said at 31: …in Narain v. Director of Public Prosecutions, [(1987) 61 A.L.J.R. 317; 71 A.L.R. 248] I refused bail in a case in which the applicant sought a stay of an extradition order, saying that: "If the order of surrender is executed by conveying the applicant to New Zealand, it would be futile to prosecute the application for special leave to appeal. The subject matter of the litigation is the liability of the applicant to be conveyed compulsorily to New Zealand pursuant to the Act, and to preserve that subject matter this court may exercise its inherent jurisdiction to stay the execution of this surrender order and any warrants issued pursuant thereto" [See Jennings Construction Ltd. v. Burgundy Royale Investments Pty. Ltd. [No.1] (1986), 161 C.L.R. 681, at pp. 682-683]. And his Honour continued: And the question there, of course, was whether or not the jurisdiction should be exercised. 36 Importantly, in my opinion, his Honour made the following observation: That case illustrates the necessity to identify the subject matter of the litigation in order to determine whether a refusal of a stay order will render futile the proceedings in this Court and will prevent a successful appellant from being restored substantially to his former position. In the present case [i.e. Beljajev], if no order is made, will the applicant's right to seek special leave to appeal and, if granted, to appeal, be rendered futile if the appellant remains in custody in consequence of the order made by Marks J.? I cannot think that it will. … 37 In my opinion, if no order for a stay is made, the question is "Will the applicant's right to seek special leave to appeal from the order of a liability for contempt and a sentence of imprisonment of 12 months and, if granted, to appeal, be rendered futile if the appellant remains in custody in consequence of the order made by Tracey J?" In my judgment the answer is it will not. 38 It is true that, in the absence of a stay, it is likely that Mr Siminton will have to serve up to two months' imprisonment before the hearing of his special leave application. That circumstance, should his application for special leave and subsequent appeal be successful, will mean that he has been obliged to serve a period of imprisonment which he was not lawfully obliged to serve. That, however, does not mean that his application for special leave to appeal, and his subsequent appeal, will be rendered nugatory if his application for a stay is refused, in my opinion. 39 On the other hand, Pelechowski, on one view, supports the applicant's argument. In Pelechowski, the Court of Appeal of New South Wales, on 3 February 1998, sentenced the applicant "to a fixed term of imprisonment of six months," the sentence to commence on that day and to conclude on 3 August 1998. 40 On 11 February 1998, the Court of Appeal dismissed an application by the applicant for bail pending the hearing of the application for special leave in the High Court. 41 On 26 February, Gummow J in the High Court said, at [5]: [5] In the present case, the applicant was in serious contempt of an injunctive order made by the District Court. … [6] If matters proceed in their ordinary course, it is to be expected that the custodial sentence will, in whole or most substantially as to part thereof, have expired by the time the special leave application is disposed of. There is also the circumstance, which has to be considered in combination with the first, that there has been no intermediate appellate review of the decision. That is a significant matter. There are some prospects of success on the leave application but they are not considerable. That is another matter which I take very much into account. [7] On the other hand the Court would be, as things presently stand, able to include the application for special leave in the list in Sydney for 1 May 1998. In all the circumstances, I think that the applicant should be admitted to bail upon an undertaking to the Court by his counsel that he will use his best endeavours to have the application for special leave ready for inclusion in the list for 1 May 1998 in Sydney. 42 Counsel for Mr Siminton, Mr David Sharp, points to the circumstance that, in that case, the original penalty of six months imprisonment commenced on 3 February 1998. 43 On 26 February 1998, about three weeks later, Gummow J admitted Mr Pelechowski to bail in the anticipation that the application for special leave would be heard on 1 May 1998, approximately two months later. Mr Sharp points to the comparability of the time period involved in the possible circumstances in Pelechowski and the anticipated two month delay in hearing Mr Siminton's special leave application if it were expeditiously prosecuted. 44 I think the circumstances of Pelechowski are somewhat special. First, the circumstance was that if matters proceeded in their ordinary course, the whole, or almost the whole, of the custodial sentence would have expired by the time the application for special leave would be disposed of. That is not the circumstance here. On any view of the matter, about two months of a 12 month period of imprisonment will have been served by the time the foreshadowed application for special leave can be heard. Two months is not "the whole or the most substantial part" of a twelve month sentence. 45 Secondly, in this particular case there has been a consideration by the Full Court of the Federal Court of the primary judge's decision, a consideration which did not apply in relation to Mr Pelechowski. The fact that there might have been circumstances permitting an earlier hearing of the matter, as is contemplated by what Gummow J said in [7] of his reasons, does not, to me, alter the fundamental consideration, namely: what is the subject matter of the litigation which would be rendered nugatory by the absence of the grant of a stay. 46 In my judgment, the subject matter of the litigation is the liability of Mr Siminton to be committed to prison for 12 months for the various contempts found by Tracey J to have been committed. The absence of the grant of a stay does not render his application for special leave in respect of those orders, or any subsequent appeal, nugatory, in my opinion. 47 In my view, the fact that he will serve up to two months' imprisonment before the determination of his special leave application is little different to the situation of persons whose appeal to a Court of Appeal in respect of a criminal sentence has been unsuccessful. The possibility that, should the proposed appeal be ultimately successful, the person will have served a period of imprisonment, relatively short compared with the total period of the sentence, (for which imprisonment was, in the end result, not warranted), does not provide a basis for the grant of bail or for the stay of the order ordering imprisonment. 48 There is an argument advanced by Mr Sharp that the question of proportionality really means one has to inquire as to whether the imprisonment pending the hearing of the special leave application is "substantial", and that two months or up to two months is such a substantial period. I disagree. My understanding of the authorities does not support that construction. If that argument were valid, it would mean that in almost every case in which there is a person ordered to be, or is in fact, in detention or imprisonment, bail or a stay should be granted, because it would be unlikely that the application for special leave would be heard within a two month period. This result is inconsistent with the actual legal position in almost all special leave applications where the applicant for special leave is in detention or prison, pending the determination of the special leave application. 49 There is a quite separate reason why, in my opinion, the stay should be refused. As I indicated in [12] above, one of the central factors relevant to the exercise of the Court's discretion is the prospects of whether special leave to appeal will be granted. As I indicated on 30 May 2008 when Mr Sharp, on behalf of the applicant, orally applied for a stay of Order 6 of the Full Court's Orders pronounced on that day, none of the matters advanced by Mr Sharp in support of the stay enjoyed a real prospect of success on a special leave application. I there indicated that the question of the validity of various sections of the Banking Act might be considered a matter of sufficient general importance to found a successful application for special leave, but that in my assessment the prospects of success of the argument concerning the constitutional invalidity of the impugned sections of the Banking Act, in the light of the authorities to which the Full Court referred, was remote. 50 The other matters then mentioned by Mr Sharp as providing a possible basis for the grant of special leave, namely, the assertion of abuse of process, and the question of construction of order 1(e) of the Orders of Tracey J, which continued the Orders of Gray J, were matters which were relevant to the particular factual circumstances of this particular case. In my assessment, it was difficult to consider that those points might warrant the grant of special leave, as matters suitable for consideration by the High Court as a matter of principle. 51 On 30 May 2008, I pointed out that special leave is not granted by the High Court just because error is demonstrated. It is necessary for the grant of special leave that the point be a matter of general importance, or involve broader considerations involving the administration of justice than the individual particular circumstances of a particular case. 52 In my assessment, other than the question of the constitutional validity of some sections of the Banking Act, and, in particular, s 65A, the points sought to be agitated on behalf of the appellant are unlikely to warrant the grant of special leave by the High Court. Further, the matter which is of a character that satisfies the requirements of the grant of special leave, namely, the constitutional invalidity of, in particular, section 65A of the Banking Act does not, in my assessment, enjoy anything other than the most remote prospects of success, having regard to the authorities referred to by the Full Court in rejecting that contention. 53 I am therefore of the opinion that the prospects of the grant of special leave to appeal in this matter are remote. 54 For all the above reasons, the application for a stay of Order 6 of the Full Court made on 30 May 2008 in proceeding VID 1153 of 2007 is refused, with costs to be taxed, if not agreed. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of The Honourable Acting Chief Justice Spender.

Associate: Dated: 18 June 2008 Counsel for the Appellant: Mr D Sharp

Solicitor for the Respondent: Australian Prudential Regulation Authority Date of Hearing: 5 June 2008