High Court of Australia|2008-07-02|Before: Tracey J, Gray J, Spender ACJ, Buchanan JJ, Kirby J

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.

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 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 imprisonment[2].

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 circumstances[3].

In my opinion, special or exceptional circumstances have not been established. I take into account all of the matters that have been urged upon the Court by the parties today. Chief amongst the considerations that bring me to my conclusion, adverse to the applicant, are the following:

. 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 Appeal[4], 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 bail[6]. 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.

It follows that it is unnecessary for me to determine the other questions argued by the parties, such as the risk of flight, which I would not, as at present advised, consider to be great. Nor is it necessary for me to determine the conditions that would be appropriate to a grant of bail, were I to make that grant.

Notwithstanding the foregoing conclusions, it is obviously highly desirable that the applicant's application should come before the Court and be decided as quickly as possible. If the applicant were granted special leave by the Court, obviously, it would be open to him to apply to the Court again for the grant of bail, as, indeed, he can do at any time on the basis of new evidence or argument.

The application for bail is refused. The applicant must pay the respondent's costs of this application. The hearing of the special leave application is expedited to the Melbourne list for hearing on 1 August 2008.

[1] Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90.

[2] cf Witham v Holloway (1995) 183 CLR 525 at 529-532; [1995] HCA 3.

[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.

[4] (1998) 72 ALJR 711. See also Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19.

[5] (1998) 72 ALJR 711 at 712 [6]. See also [1999] HCA 19; (1999) 198 CLR 435.

[6] See, for example, United Mexican States v Cabal (2001) 209 CLR 165 at 196-197 [77]; [2001] HCA 60.

Siminton v Australian Prudential Regulation Authority [2008] HCA 44 (2 July 2008)

Siminton v Australian Prudential Regulation Authority [2008] HCA 44

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Cases Cited (7)

Siminton v Australian Prudential Regulation Authority [2008] HCA 44 (2 July 2008)