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[2008] HCA 44
procedural. Bail refused; applicant ordered to pay the respondent's costs of the bail application; hearing of the special leave application expedited to the Melbourne list for 1 August 2008 ([18]).
Kirby J accepted that the High Court could grant bail while considering an application for special leave, but said that this required special or exceptional circumstances. He refused bail because the proposed High Court proceedings would still have practical value, Siminton had already had his appeal considered on its merits by the Federal Court Full Court, and the prospects of special leave were not assessed as strong. The special leave hearing was expedited instead.
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1,972 words · generated 05/10/2026
David Robert Siminton applied to Kirby J for bail while imprisoned for contempt of court. The underlying contempt findings arose from breaches of an order made by Gray J in the Federal Court on 10 January 2006. On 7 November 2007, Tracey J found Siminton guilty of multiple charges of contempt. On 28 November 2007, Tracey J imposed a 12-month term of imprisonment. Siminton challenged the basis for the contempt findings, but did not separately challenge the penalty ([2]-[3]).
No linked legislation citations have been extracted yet.
Tracey J initially ordered that the warrant remain unexecuted while Siminton appealed to the Federal Court Full Court. On 30 May 2008, that Court dismissed the appeal. It ordered the warrant for the 12-month term to be uplifted from the Court file and executed ([4]-[5]). Later that day, Spender ACJ temporarily stayed execution until 4.00 pm on 5 June 2008, after Siminton indicated an intention to apply to the High Court for special leave ([6]).
Siminton then applied to the Federal Court for a stay pending his proposed High Court application. On 5 June 2008, Spender ACJ dismissed that application. Among other things, he concluded that the proposed special leave application would not be rendered nugatory without a stay and that the grounds advanced did not have a real prospect of success. Siminton was committed to prison that day ([7]-[9]).
The special leave application was filed in the High Court on 25 June 2008. Siminton also sought bail from the High Court pending the special leave application or further order. Kirby J made clear that he was deciding only that bail summons. He was not hearing an appeal from Spender ACJ's refusal of a stay, and he was not deciding the special leave application itself ([9]-[12]).
Kirby J refused bail, ordered Siminton to pay the respondent's costs of the bail application, and expedited the special leave hearing to the Melbourne list for 1 August 2008 ([18]).
Kirby J accepted that the High Court had jurisdiction to grant bail as an incident of its authority to consider a special leave application. The respondent did not dispute that proposition ([10]-[11]). The question, therefore, was not whether bail jurisdiction existed, but whether the circumstances justified exercising it.
The governing threshold was stated in terms of “special or exceptional circumstances”. Kirby J noted that authority repeatedly treated a grant of bail before special leave, and even after special leave pending the appeal, as exceptional ([14]). He referred to Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] and Beljajev v Director of Public Prosecutions in support of that threshold. The judgment does not set out a comprehensive checklist or an exhaustive definition of what counts as exceptional. It applies the threshold to the circumstances before the Court.
First, the proposed High Court proceedings would retain utility even if Siminton remained in custody. Kirby J estimated that, by the likely August hearing of the special leave application, about 10 months of the sentence would remain to be served. He concluded that the application would not be nugatory, in the sense of having no value, and that an appeal would also remain relevant if special leave were granted ([15]).
Second, Siminton had already had an intermediate appellate hearing on the merits. The Federal Court Full Court had considered and unanimously dismissed his appeal from Tracey J's orders. Kirby J treated that as an important distinction from Pelechowski v Registrar, Court of Appeal, where there had been no intermediate appellate consideration before the special leave application ([15]). The judgment recounts that, in Pelechowski, a reason supporting bail was the expectation that the custodial sentence would have expired, or substantially expired, before the special leave application was decided. Kirby J considered the present facts different: Siminton would not have substantially served his sentence, and a further High Court proceeding would still have practical value ([15]).
Third, Kirby J reviewed the proposed special leave grounds against the Full Court's reasons. He considered that the prospects of special leave could not be described as strong. He expressly cautioned that this was not a final view on the special leave application. It was an assessment required for the limited purpose of deciding whether bail should be granted ([15]). The judgment therefore distinguishes a provisional assessment relevant to interim relief from a determination of the pending special leave application.
Kirby J also recognised that the applicant's liberty was precious and noted the distinctive character of imprisonment for contempt ([13]). Those considerations did not displace the conclusion that the required special or exceptional circumstances were absent. He did not need to decide the risk of flight or what bail conditions might have been appropriate, because the application failed at the threshold stage ([16]).
The judgment describes the relevant legal position as an established one: the High Court may grant bail incidentally to its consideration of a special leave application, but the power is exercised exceptionally and requires special or exceptional circumstances ([11], [14]). It cites Jennings Construction and Beljajev as authority for the exceptional character of bail in this setting. It also refers to United Mexican States v Cabal as an example of the authorities emphasising that requirement ([14]-[15]).
The judgment's contribution is principally an application of that established threshold to a contempt sentence after an unsuccessful intermediate appeal. Its reasoning identifies several considerations relevant to that application: whether refusing bail would deprive the proposed proceeding of utility; whether an intermediate appellate court has already considered the merits; how much of the sentence is expected to remain when the special leave application is heard; and the apparent strength of the special leave prospects, considered provisionally ([15]).
The judgment does not purport to replace or comprehensively restate the earlier authorities. Nor does it announce a formula under which any one factor is decisive. Its reasoning is contextual: the combination of retained utility, a prior merits appeal, and prospects not assessed as strong meant that this applicant did not establish the necessary circumstances.
As to the law after this decision, the supplied judgment does not discuss later cases or subsequent developments. It therefore supports no claim about how later courts have interpreted or limited Siminton. The outcome and reasoning can be stated, but a later-law history cannot be established from this text alone.
At [11], Kirby J said: “I do not doubt that this Court has the jurisdiction to grant bail to the applicant as incidental to the exercise of its jurisdiction to consider and determine his application for special leave.” In plain English, the High Court can consider bail as part of managing a pending special leave process. That does not mean bail follows automatically whenever an application is pending.
At [14], Kirby J said bail “requires the demonstration of special or exceptional circumstances.” This states the threshold he applied. The reasons do not define those words through an exhaustive test. Instead, they explain why the particular circumstances did not meet that threshold.
At [15], Kirby J concluded that the special leave application “would not be rendered nugatory” by refusing bail. In plain English, the application could still matter even if Siminton remained in prison while it was pending. The sentence was long enough, relative to the anticipated hearing date, for a favourable result to retain practical significance.
Also at [15], Kirby J said he had considered the special leave prospects but did so “without prejudging the application”. The bail decision was not a ruling on whether special leave should ultimately be granted. It was a provisional assessment relevant to the distinct question of interim release.
Finally, at [17], Kirby J observed that if special leave were granted, Siminton could apply again for bail, and that a further application could also be made on new evidence or argument. That statement explains that the refusal did not make the matter permanently closed to a later bail application. It does not determine whether any later application would succeed.
The decision is most directly relevant to an application for bail made to the High Court while an application for special leave is pending, especially where the applicant is serving a custodial sentence imposed for contempt and has already had an appeal determined by an intermediate appellate court. Siminton's case involved all those features ([2]-[10]).
The judgment indicates that arguments about the practical utility of the proposed High Court proceedings may matter. A relevant question on these facts was whether the sentence would expire, or be substantially served, before the special leave application could be heard. Kirby J contrasted the present case with Pelechowski, where expected expiry of most or all of the sentence before the special leave hearing had been a reason supporting bail ([15]).
The decision also indicates that prior appellate consideration may be relevant. The Federal Court Full Court had heard Siminton's appeal on its merits and unanimously dismissed it. Kirby J treated this as a distinction from a case where no intermediate appellate consideration had occurred ([15]).
Finally, the apparent prospects of special leave may be considered for the limited bail question. The judgment makes clear that this is not a final determination of special leave ([15]). It does not establish that any single feature, such as sentence length, prior appeal, or prospects, automatically controls. It applies the threshold to the combined circumstances before Kirby J.
The supplied reasons contain no discussion of any later court's treatment of Siminton. They cannot establish whether subsequent courts followed, distinguished, approved, or questioned it.
The judgment itself discusses earlier authorities. It cites Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] and Beljajev v Director of Public Prosecutions for the exceptional character of bail in this setting ([14]). It refers to United Mexican States v Cabal as another example of authority emphasising the need for special or exceptional circumstances ([15]). Those are authorities considered by Kirby J, not later treatments of Siminton.
The main comparison is with Pelechowski v Registrar, Court of Appeal. Kirby J distinguished it because the custodial sentence there was expected to have expired, or substantially expired, by the time the special leave application was decided, and because there had been no intermediate appellate consideration of the merits ([15]). The judgment refers to both the 1998 report and the later High Court report of that proceeding. The supplied text does not provide a subsequent citation history for Siminton.
The reasons do not define “special or exceptional circumstances” comprehensively. They state the threshold and apply it, but do not provide a complete catalogue of circumstances that would satisfy it. The judgment therefore leaves open how different combinations of urgency, sentence length, appellate history, and prospects would be assessed.
The reasons also do not decide how much weight should be given to any one factor in another case. Kirby J relied on several considerations together: the special leave application retained utility; there had already been a merits appeal; the sentence would not have been substantially served by the anticipated hearing date; and the special leave prospects were not assessed as strong ([15]). The judgment does not say that any factor alone would necessarily determine a future application.
Other matters were expressly left undecided. Kirby J did not determine the risk of flight or appropriate bail conditions, because he refused bail without reaching those questions ([16]). Nor did he decide the special leave application itself. The reasons record that the hearing was expedited to 1 August 2008, but do not give the result of that later hearing ([18]).
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
KIRBY J
DAVID ROBERT SIMINTON APPLICANT
AND
AUSTRALIAN PRUDENTIAL REGULATION
AUTHORITY RESPONDENT
Siminton v Australian Prudential Regulation Authority
[2008] HCA 44
2 July 2008
M45/2008
ORDER
1. The application for bail is refused.
2. The applicant must pay the respondent's costs of this application.
3. The hearing of the applicant's application for special leave expedited to 1 August 2008.
Representation
D B Sharp for the applicant (instructed by Erhardt & Associates)
D S Mortimer SC with S J Hibble for the respondent (instructed by Australian Prudential Regulation Authority – Melbourne)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Siminton v Australian Prudential Regulation Authority
High Court practice – Bail – Power of High Court to grant bail as incident of application to invoke appellate jurisdiction – Application made prior to grant of special leave to appeal from orders of the Federal Court of Australia convicting the applicant and imposing order of imprisonment for contempt of court – Exhaustion of remedies in Federal Court both in respect of appeal against substantive orders and refusal of bail by that Court – Whether refusal by High Court to grant bail would render proceedings in High Court nugatory or lacking in utility – Whether special or exceptional circumstances shown – Estimate of prospect of success in application for special leave – Bail refused – Hearing of application for special leave expedited.
Words and phrases – "special circumstances", "exceptional circumstances".
The background to the application
On 7 November 2007, Tracey J, in the Federal Court of Australia, found the applicant guilty of multiple charges of contempt of court arising out of breaches of an order earlier made in that Court by Gray J. Gray J made his orders on 10 January 2006.
For the contempt found, on 28 November 2007, Tracey J pronounced the necessary order and imposed on the applicant a penalty of 12 months imprisonment. The applicant appealed against that order. He challenged the basis for the finding of contempt, although he did not bring a separate challenge against the penalty.
Effectively, Tracey J stayed the commencement of his order for imprisonment pending the resolution of the applicant's appeal to the Full Court of the Federal Court. He did this by ordering that the warrant lie, unexecuted, in the registry of the Federal Court pending the hearing and determination of the applicant's appeal to the Full Court or further order.
On 30 May 2008, the Full Court of the Federal Court (constituted by Spender ACJ, Lander and Buchanan JJ) dismissed the appeal from Tracey J's orders. The Full Court made an order1:
"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."
On the same day, 30 May 2008, on the basis of an oral application made after the delivery of the orders of the Full Court and the publication of the reasons for judgment of that Court, Spender ACJ, exercising a jurisdiction ancillary to that of the Full Court, stayed the execution of that order until 4.00 pm on 5 June 2008. That order was made on the basis of an indication, on behalf of the applicant, that he intended to apply to this Court for special leave to appeal against the orders of the Full Court and that he would bring on a notice of motion for a stay in the usual way.
A notice of motion and supporting affidavit were duly filed in the Federal Court and served on 2 June 2008, together with an outline of submissions and an attached draft application for special leave to appeal to this Court. On 5 June 2008, Spender ACJ, again exercising the incidental jurisdiction of the Full Court of the Federal Court, dismissed the applicant's application for a stay of the execution of the orders of that Court.
Spender ACJ found that the applicant's then proposed application for special leave to appeal to this Court would not be rendered nugatory if a stay were not granted by the Federal Court. He also found that none of the matters advanced by the applicant in his proposed application for special leave to appeal enjoyed a real prospect of success.
The applicant was thereupon committed to prison on 5 June 2008. He remains there at this time. The draft application for special leave, which was before Spender ACJ on 5 June 2008, was not immediately perfected in the sense that no application for special leave was, in fact, filed in this Court until 25 June 2008. However, it was filed on that day. It is now before this Court. It is in the pending list of the Court. It will be reached in the normal sequence of applications for special leave unless some measure of expedition is granted to it.
The nature of the proceedings and principles
As incidental to the application for special leave, and in order to protect and defend the utility of that application, by summons, the applicant has now applied to this Court for the exercise of its own jurisdiction to grant him bail, pending the hearing and determination of his application for special leave or further order.
I do not doubt that this Court has the jurisdiction to grant bail to the applicant as incidental to the exercise of its jurisdiction to consider and determine his application for special leave. Indeed, so much was not disputed by the respondent.
I remind myself that I am not sitting here on appeal from the orders of Spender ACJ, nor in a special leave application from those or earlier orders. I am sitting as a single Justice considering the application for bail, and that alone. I am not conducting a review of the order or reasons for decision of Spender ACJ on the determination by him of the application in the Federal Court for a stay of the operation of that Court's orders. My duty, and only duty, is to exercise the jurisdiction of this Court.
I take into account the fact that the liberty of the applicant is precious. I also take into account the fact that the imprisonment which the applicant is serving is for contempt of court. This is, in some ways, a peculiar wrong. It is not, as such, a criminal offence provided by legislation or otherwise, which has been executed following a decision by a jury or by a judge which has thereby resulted in his imprisonment2.
Notwithstanding these considerations, the application for bail fails. Repeated authority of this Court has emphasised the exceptional character of a grant of bail by the Court prior to a grant of special leave to appeal to the Court and even, indeed, thereafter, pending the outcome of the appeal. The provision of bail, as incidental to the attempt to invoke the jurisdiction of this Court, requires the demonstration of special or exceptional circumstances3.
The reasons for refusing bail to the applicant
. First, bail is not necessary in this case to preserve the utility of the subject matter of the application for special leave or of an appeal by the applicant to this Court. The subject matter of such application, and, if special leave is granted, of such an appeal, will remain relevant, even if I refuse bail. On the estimate of the likely hearing time of the applicant's application to the Court for special leave (which would be some time in August 2008) the applicant would still have about 10 months of his sentence then to serve. The special leave application therefore, obviously, has a utility. The refusal of bail would not render the pursuit of the application nugatory, in the sense of being of no value to the applicant;
. Secondly, in this case, unlike in Pelechowski v Registrar, Court of Appeal4, the applicant has already had the facility of an appeal against the orders of Tracey J to the Full Court of the Federal Court. That Court has considered his appeal on its merits. For reasons which it has published and which were unanimous, it rejected the applicant's appeal. That is an important point of distinction from Pelechowski where one of the reasons that moved Gummow J in this Court to provide bail to the applicant was the fact that "[i]f 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"5. The other point of distinction is the fact that, in that case, exceptionally, the application for special leave was from the orders for punishment for contempt entered by the Court of Appeal of New South Wales. There had been no opportunity of intermediate appellate consideration;
. Thirdly, the case of the applicant is not "exceptional" or "special" as the authority of this Court repeatedly says is necessary for the provision of bail6. The applicant would not, here, have substantially served the sentence which he wishes to challenge. There would still be a real utility in his application and, if special leave were granted, in his appeal to this Court. The cases repeatedly emphasise that bail is not available from this Court simply because, in a pending matter, the applicant has been committed to prison by order of the court below; and
. Fourthly, I have reviewed the grounds of the application for special leave and considered these against the reasons for judgment of the Full Court of the Federal Court disposing of the applicant's appeal to it. In my estimation, the applicant's prospects of special leave cannot be said to be strong. I say this without prejudging the application. I have reached no final view upon it. However, necessarily, and in accordance with the authorities, I have had to consider whether there are strong prospects that special leave will be granted. If there were, that would be a consideration which would weigh in favour of the provision of bail. Viewing the matter on my present understanding, and only for the present purposes, I would not describe the prospects of a grant of special leave as strong. Accordingly, in the exercise of the jurisdiction and power of this Court to grant bail to protect the process that has been invoked in this Court, I would refuse the applicant's application for bail.
Order for expedition and ancillary matters
Orders
Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90. ↩
cf Witham v Holloway (1995) 183 CLR 525 at 529-532; [1995] HCA 3. ↩
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681; [1986] HCA 84 and Beljajev v Director of Public Prosecutions (1991) 173 CLR 28; [1991] HCA 16. ↩
(1998) 72 ALJR 711. See also Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19. ↩
(1998) 72 ALJR 711 at 712 [6]. See also (1999) 198 CLR 435. ↩
See, for example, United Mexican States v Cabal (2001) 209 CLR 165 at 196-197 [77]; [2001] HCA 60. ↩
Siminton
Australian Prudential Regulation Authority [2008] HCA 44
(1995) 183 CLR 525
(1986) 161 CLR 681
(1991) 173 CLR 28
(1998) 72 ALJR 711
(1999) 198 CLR 435
(2001) 209 CLR 165
Bail refused; applicant ordered to pay the respondent's costs of the bail application; hearing of the special leave application expedited to the Melbourne list for 1 August 2008 ([18]).