FEDERAL COURT OF AUSTRALIA

Australian Prudential Regulation Authority v Siminton (No 2) [2006] FCA 336

COURTS – practice and procedure – application to vary interlocutory orders – application to strike out application and statement of claim

Bankruptcy Act 1966 (Cth)

Australian Prudential Regulation Authority v Siminton [2006] FCA 326 – cited

Adam P. Brown Male Fashions v Phillip Morris (1981) 148 CLR 170 - applied

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v SIMINTON

VID 1607 OF 2005

MERKEL J

30 MARCH 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The notices of motion of the respondent filed on 17 February, 22 February and 14 March 2006 be dismissed.

2.                  The respondent pay the applicant’s costs of and incidental to the motions.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     By notices of motion dated 17 February 2006, 22 February 2006 and 14 March 2006 the respondent (‘Siminton’) has applied:

(a)        to set aside the orders made ex parte by Sundberg J on 15 December 2006;

(b)       to set aside the orders made on 10 January 2006 by Gray J after an inter partes hearing;

(c)        to set aside the orders made ex parte by me on 23 December 2005;

(d)       to strike out the application and Statement of Claim;

(e)                to stay the present civil proceeding until the determination of the ‘criminal activities’ alleged in the statement of claim.

2                     In reasons for judgment delivered in this matter today ([2006] FCA 326) I outlined the nature of the present proceeding and the orders made by Sundberg J, Gray J and myself.  It is unnecessary to repeat that outline.

3                     The Court has the power to set aside or vary the previous orders because those orders are interlocutory orders over which the Court maintains its control: see Adam P. Brown Male Fashions v Phillip Morris (1981) 148 CLR 170 (‘Phillip Morris’) at 178.  However, for reasons that I shall endeavour to briefly state I am of the clear view that the orders sought should not be made and that each of the notices of motion of the respondent should be dismissed with costs.

(a)               The Sundberg J orders

4                     The orders made by Sundberg J were superseded by the orders made by Gray J granting interlocutory injunctions: see Australian Prudential Regulation Authority v Siminton [2006] FCA 140.  The orders were first challenged by Siminton by his motion of 14 March 2006, which was well after the original orders were spent.  The only apparent purpose of that challenge was Siminton’s endeavour to have the orders declared to be a nullity so that they could not found the motion of the applicant (APRA) against him for contempt.  For the reasons given (at [42]-[53]) of my reasons for judgment handed down today I have concluded that the challenge to the orders made by Sundberg J is to be rejected.  The motion to set aside the orders has been brought too late, is misconceived and is without merit.

(b)        The Gray J orders

5                     Gray J, after hearing the parties, granted the interlocutory injunctions sought by APRA.  His Honour was in no doubt that there was a serious issue to be tried and that the balance of convenience favoured the grant of the injunctive relief sought.  Siminton has not adduced evidence of any new facts that have come into existence or been discovered that render the enforcement of the orders unjust: see Phillip Morris at 178.  His challenge to the orders appears to be an endeavour to rely on the Court’s power to set aside interlocutory orders as a substitute for an appeal. The challenge should be refused as it is a misuse of process and, in any event, is wholly without merit.  In particular, I am not satisfied that any proper basis has been demonstrated for interfering with his Honour’s orders.

(c)        The Merkel J orders

6                     On an ex parte application of APRA I made orders on 23 December 2005 restraining Siminton until further order from leaving Australia and I required him to deliver up his passport within 48 hours.  Siminton has complained that it was erroneous to make the orders ‘until further order’, rather than to make them operate until a fixed date.  Liberty to apply on 48 hours notice was expressly reserved and it was open to Siminton to apply to vary or set aside the orders.  He did not do so until 17 February 2006.  His complaint about the form of the orders is without merit.

7                     In ex tempore reasons given on 23 December 2005 I stated that the orders were made in the inherent jurisdiction of the Court to make orders which prevent its processes from being frustrated.  I accepted that there was no evidence that Siminton proposed to leave Australia but stated:

‘having regard to the public interest aspect of this litigation, the harm that would be suffered by the public if [Siminton] did leave, ….. the difficulty [APRA] is having in locating the respondent and, in particular, [Siminton’s] clear indication that he does not recognise the processes of Australian law to be binding upon him, this is an exceptional case that justifies the orders being applied for by [APRA].’

8                     Since the making of the orders, it has been discovered that since 9 August 2001 Siminton has been an undischarged bankrupt who has failed to provide a statement of affairs, or to surrender his passport, to his trustee as required by the Bankruptcy Act 1966 (Cth).  Also, it appears Siminton has travelled outside of Australia three times for a total of seven weeks since the commencement of his bankruptcy.

9                     Further, there is a serious question about Siminton’s failure to surrender his passport as ordered.  He used his passport at the Bendigo Bank on 21 December 2005.  My order requiring him to surrender his passport was made on 23 December 2005.  Siminton appears to be claiming that he could not comply with the order as he sent the passport for diplomatic recognition by the U.N., to which he plainly has no entitlement.

10                  Also, in my decision today I have found that Siminton deliberately breached certain orders made by Sundberg J and have adjourned the contempt hearing to enable submissions to be made in relation to penalty which, plainly, can involve the possibility of a term of imprisonment.

11                  Finally, Siminton has placed no evidence before the Court as to why the orders made by me might work any injustice or unfairness.  Indeed, it appears that independently of my orders, he has no entitlement to his passport.  Nonetheless, he claims that the orders ‘deprive him of his liberty’.

12                  Accepting, as I do, that orders of the kind made by me ought to be made sparingly and only where the special circumstances of the case require the making of such orders, the above matters leave me with little confidence in Siminton. In particular, he has not provided any information or taken any steps to allay the concerns I expressed on 23 December 2005.  For the reasons there expressed (save that there may no longer be a difficulty in locating Siminton) this is an exceptional case in which it is in the public interest that the Court ensures that Siminton’s presence in Australia is secured to prevent the Court’s processes from being frustrated and, in particular, to ensure that any relief to which APRA may become entitled is able to be effective.  I would add that the contempt proceeding, with the possibility of a term of imprisonment, is an added reason for not varying the orders I made.

13                  If the circumstances change or Siminton is able to demonstrate that the enforcement of the orders is unjust then it is open to Siminton to make a further application to the Court.

(d)        The Application and the Statement of Claim

14                  The application to stay the proceeding is misconceived.  The Court has on some occasions stayed a civil proceeding pending the conclusion of a criminal proceeding.  However, the principles that warrant that course have no application in the present case as there is no criminal proceeding.

15                  The challenge to the Statement of Claim is also without merit.  The only point of any substance concerns paragraphs 15 and 16 of the Statement of Claim.  However, having regard to the width of the discretionary relief that might be granted under ss 65A(2) and (11) of the Banking Act 1959 (Cth) I am satisfied that the matters pleaded in these paragraphs are not embarrassing or irrelevant as they relate to matters that go to the discretion of the Court to grant relief under those sub-sections.

16                  The main complaint of Siminton was that particulars of several significant allegations have not been given and are said to await discovery or other interlocutory steps.  However, the particulars relate to matters within the knowledge of Siminton, rather than APRA.  While Siminton maintains that he is entitled to refuse to give discovery, there are other means by which APRA may be able to obtain the information in question.  For example, members of the public may come forward or third party discovery may be sought.  Indeed, the evidence is that members of the public have already been in contact with APRA and there is no difficulty about further particulars being supplied when the relevant information becomes available to APRA.  I am not satisfied that any aspect of the statement of claim is vexatious, oppressive, embarrassing or irrelevant.

17                  Accordingly, there is no proper basis for striking out the Application or the Statement of Claim.

18                  The notices of motion dated 17 February 2006, 12 February 2006 and 14 March 2006 are to be dismissed with costs.

Associate:

Dated:              30 March 2006