Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90 | Case summary

REASONS FOR JUDGMENT THE COURT 1 On 7 November 2007, a judge of this Court (Tracey J) in proceedings VID 1607 of 2005, found that eight specified Charges of contempt of court brought by the Australian Prudential Regulation Authority against David Robert Siminton (the appellant) had been established beyond reasonable doubt: Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609. 2 On 28 November 2007 Tracey J made the following orders in respect of those Charges: 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. 2. No findings should be made in relation to the matters set out in Charges 1.6, 1.8, 1.10 and 1.12 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. 5. The respondent pay the applicant's costs of the applicant's notice of motion dated 14 December 2006 on a solicitor-client basis. 6. The warrant issue pursuant to paragraph (4) of these orders lie on the Court file until further order. 7. Until the hearing and determination of any appeal from these orders, or further order: (a) The respondent not attend at any point of international departure. (b) The respondent report in person every Monday (commencing on 3 December 2007) between the hours of 9:00am and 5:00pm to the Nunawading Police Station. 3 This is an appeal against those orders, and, in particular, the declarations that the appellant is guilty of the contempts in the first of those orders, and the orders of imprisonment. 4 This appeal was heard as one of three appeals by this appellant in relation to a number of orders of judges of this Court in relation to proceedings which were initially commenced by the respondent to this appeal in proceeding VID 992 of 2007 (the principal proceedings). In that proceeding the respondent sought orders under s 65A of the Banking Act 1959 (Cth) (Banking Act) restraining the respondent from contravening ss 7 and 8 of the Banking Act. 5 On 15 December 2005, Sundberg J entered interim orders ex parte on the respondent's application restraining the appellant from engaging in certain conduct in relation to monies in accounts. 6 On 10 January 2006, Gray J, after a hearing, made interlocutory orders in similar terms as those made by Sundberg J. 7 On 30 March 2006 Merkel J found the appellant guilty of contempt for breaching the orders made by Sundberg J. He sentenced the appellant to 10 weeks imprisonment. 8 Merkel J in his reasons for judgment said (Australian Prudential Regulation Authority v Siminton (No 3) [2006] FCA 397 at [12]): There is no evidence that Siminton has any capacity to pay a fine and the interlocutory orders made in the proceeding prevent him from accessing any of the funds upon which he might otherwise lawfully draw upon to pay any fine. 9 The appellant appealed from both the finding of contempt and the penalty imposed to the Full Court of the Federal Court. The appeal against the finding of contempt was dismissed. However, the Full Court set aside the sentence of imprisonment and instead imposed a penalty of a fine of $50,000 which was to be paid within 60 days: Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129. The fine still remains unpaid. On 7 November 2007 the appellant was found to have committed a contempt for his failure to pay that fine. On 28 November 2007 he was sentenced to four months imprisonment for that contempt. He appealed against that finding and that appeal was allowed today and the order for imprisonment set aside and the notice of motion seeking an order for committal for contempt dismissed: Siminton v Australian Prudential Regulation Authority [2008] FCAFC 89. 10 On 14 December 2006 the respondent alleged in a notice of motion and statement of charges that the appellant had between 2 May 2006 and 28 September 2006 committed a number of contempts of Court involving contravention of an order made by Gray J on 10 January 2006. It was on that notice of motion that the orders set out in paragraph 2 above were made, and which are the subject of this appeal. 11 A number of issues have been raised on the appeal but the appeal can be dealt with shortly. 12 In the principal proceedings and on this appeal, the appellant asserts that s 65A of the Banking Act is invalid, being beyond the constitutional power of the Commonwealth. 13 For reasons given today in Siminton v Australian Prudential Regulation Authority [2008] FCAFC 88, this Court rejected that contention. In those circumstances, there is no need to examine that contention on this appeal further. 14 Next, the appellant complains that the contempt proceedings, as in fact all of the proceedings, were an abuse of process by the respondent. Again, for reasons which we have given in Siminton v Australian Prudential Regulation Authority [2008] FCAFC 88, the Court has rejected that argument. In those circumstances, there is no need to examine that contention on this appeal further. 15 However, for completeness, we should say that, even if the appellant had satisfied this Court that s 65A was an invalid exercise of power by the Commonwealth or that the proceedings were an abuse of process by the respondent, the appellant could not have availed himself of those contentions on this appeal. The orders upon which the finding of contempt and the sentence of imprisonment rest were orders made by a judge of a superior court and with which the appellant was bound to comply until the orders were set aside: Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608; Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 at 137-138; Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177-178, 185-187, 235, 279. 16 The order which the respondent claim the appellant had breached was paragraph 1(e) of the orders made by Gray J on 10 January 2006. Those orders, which were served on the appellant, 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: (a) receiving money from members of the public by way of deposit in the Terra Nova Cache or the Principality of Camside; (b) assuming or using the words "bank", "banker" or "banking", or any words or phrases of like import, in relation to his, their or its business; (c) advertising, representing or stating that he, they or it will carry on banking business; (d) selling, transferring, dealing with, disposing of or otherwise encumbering or removing from Australia or causing to be removed from Australia any money (including, but not restricted to, cash), property or other assets he has whether held alone, jointly or in conjunction with others (including any accounts or property held in the name of the Principality of Camside or the Terra Nova Cache); (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. 17 In this case, the appellant contended that the order applied only to monies held at the date of the order. 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. The orders which the appellant has termed "freezing orders" are in fact injunctions which are designed to restrain the conduct to which the orders refer, throughout the currency of the orders. 19 Paragraph 1 of the order provides that the orders are to apply until the hearing and determination of the proceeding or some intervening order. Paragraph 1(a), (b) and (c) restrains conduct of the kind which could lead to a contravention of ss 7 and 66 of the Banking Act. The remaining subparagraphs of paragraph 1 are also designed to have the same effect. Paragraph 1 is expressed in the present tense and is designed to ensure in the case of paragraph 1(e) that any monies standing to the credit of the appellant in any account as defined in paragraph 1(e) are not to be dealt with, withdrawn or disposed of during the currency of the orders. Contrary to the contention of counsel for the appellant, there is nothing in paragraph 1(e) to suggest that the order applies only to the monies in the accounts as at the date of the order. Paragraph 1(e) was clearly designed, as were the orders of which it formed part, to restrain the appellant from dealing with any monies which he had received or might receive. The order is not capable of any other construction. 20 Moreover, the principal proceedings assist to inform the content and meaning of the order. The principal proceedings have been brought to seek orders under s 65A of the Banking Act to prevent the appellant conducting a banking business in the future. The interim orders, the interlocutory orders and the final orders sought in the principal proceedings are all designed to prevent the appellant in engaging in conduct contravening the Banking Act. They do that by restraining the appellant from receiving investments and from using those investments in any way. Paragraph 1(e) acts on all monies received into the bank accounts referred to in the paragraph, whenever during the currency of the orders those monies are so received. 21 In those circumstances, the appellant's contention as to the meaning of the order is rejected. 22 The appellant further contended that Tracey J should have admitted the transcript of the proceeding before Gray J for the purpose of determining the ambit of the order. The appellant sought before Tracey J to tender the transcript which had been taken before Gray J for the purpose of establishing Gray J's intentions at the time that his Honour made the orders. The tender was refused. Because we have found that the orders are plain, this contention is rejected. There was no need to go to the transcript for an understanding of the content of the orders. 23 However, we will deal with the contention on the assumption there was a need to look to extrinsic evidence to assist in understanding the order. The construction of the order was a matter of law: Universal Musical Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 at 116. It has been held that in considering the effect of orders made by a court, the court can have regard to the reasons for judgment and other surrounding circumstances including the pleadings: Athens v Randwick City Council (2005) 64 NSWLR 58. That case does not support the contention that Tracey J was obliged to have regard to the transcript of the hearing before Gray J. In fact, Gray J gave reasons for the orders which he made: Australian Prudential Regulation Authority v Siminton [2006] FCA 140. Paragraph 11 of Gray J's reasons support the construction of the orders at which we have arrived. In [11] of his reasons, he said: It is also appropriate, in my view, to make orders endeavouring to ensure that any assets over which the respondent does have control will be frozen effectively. 24 Where the primary judge has given reasons for his or her decision, those reasons will be the primary source of extrinsic material to which an appeal court will have regard. 25 Because we do not consider there is any ambiguity in the orders, and in any event the reasons for judgment support the construction which we give the orders, we agree that Tracey J was not in error in rejecting the tender of the transcript. 26 If the appellant had sought to tender the transcript to establish that he understood the order in a different way because of what the judge had said, that might have been a different matter. However, that was not the purpose of the tender and could never have been its purpose because the appellant did not give evidence as to his understanding of the order or why he had not complied with it. 27 Lastly, it was contended that Tracey J was in error in relying upon the appellant's failure to give evidence to support certain inferences. It was the respondent's contention before Tracey J that the Court should, in the absence of any evidence from Mr Siminton or any witnesses on his behalf, or indeed any cross-examination of the respondent's witnesses, draw certain inferences. 28 Justice Tracey did not err in the way he had regard to the appellant's failure to give evidence. Justice Tracey, at [22] of his Honour's reasons for judgment in Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612, said: 22 … No adverse inference can be drawn merely because Mr Siminton has chosen not to give or call evidence in defence of the charge. The failure is nonetheless of potential significance. This is because, as the High Court explained in RPS v R (2000) 199 CLR 620 at 632-3: "… it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen: '[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.' "(footnotes omitted)." 23 The inferences which the District Registrar invited the Court to draw are founded on uncontradicted evidence. Counsel for Mr Siminton did not make any specific submissions as to why the inferences for which APRA contended should not be drawn. 24 I am satisfied beyond reasonable doubt that those inferences ought to be drawn, that the conclusions contended for by the District Registrar are supported by the evidence and that the evidence does not support a finding that there is any reasonable or rational hypothesis consistent with Mr Siminton's innocence of the charge. 29 In those reasons, Tracey J explained how he used the failure by Mr Siminton to give evidence himself, or call evidence on his behalf, or to cross-examine the respondent's witnesses. His Honour noted that the evidence which had been adduced by the respondent had not been contradicted, and he concluded that, in those circumstances, that evidence established the breaches of Gray J's orders. 30 In our opinion, none of the grounds advanced by the appellant has been made out and the appeal must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Siminton v Australian Prudential Regulation Authority

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