Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118

FEDERAL COURT OF AUSTRALIA

Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 CONTEMPT – whether orders of a superior court must be observed even if order should not have been made or was made without jurisdiction - whether hearing on contempt charges should have been adjourned until principal proceeding was determined – whether the entitlement to rely upon privilege against self-incrimination meant that findings of fact could not be made or inferences drawn – whether single judge failed to give sufficient weight to other matters – where orders served upon the appellant did not bear the notice required by O 37 r 2 of the Federal Court Rules – whether absence of notice meant that orders for committal of the appellant should not have been made – whether there is a power to impose a fine for contempt even if the order does not bear the notice – whether the power of dispensation ought to be exercised – whether respondent could adduce fresh evidence PRACTICE AND PROCEDURE – application for leave to appeal from order of single judge dismissing motion to set aside orders made ex parte – where grounds of appeal are misconceived – where no evidence that orders obtained improperly COSTS – appellant only succeeded on point raised by the Court after the hearing of the appeal had commenced Banking Act 1959 (Cth): ss 7, 65A Federal Court of Australia Act 1976 (Cth): ss 23, 28, 31 Federal Court Rules: O 37 r 2, O 36 r 7 High Court Rules 2004: r 11.04 Cameron v Cole (1944) 68 CLR 571, applied Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590, cited R v Ross‑Jones; Ex parte Green (1984) 156 CLR 185, cited Jackson v Sterling Industries Ltd (1987) 162 CLR 612, applied Re Modern Woodcraft Pty Ltd (In Liquidation) (1997) 75 FCR 245, applied Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110, applied Primelife Corporation Limited v Newpark Pty Ltd [2003] VSC 106, considered Bourke Shire Council v Dwyer (1993) 79 LGERA 185, cited Australia and New Zealand Banking Group Ltd v Merribee Pastoral Industries Pty Ltd (1998) 84 FCR 367, cited Miller v Eurovox Pty Ltd [2004] VSCA 211, cited Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, cited Heatons Transport (St Helens) Ltd v Transport and General Workers' Union [1973] AC 15, cited Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1985) 5 FCR 169, cited Mudginberri Station Pty Ltd v Australasian Meat Industry Employees Union (1985) 11 FCR 573, cited Clifford v Middleton [1974] VR 737, applied Gordon v Gordon [1946] P 99, applied Takhar v Animal Liberation (SA) Inc [2002] SASC 71, cited Keith Harris & Co Limited v Bryant (1980) 30 ALR 663, cited Deverall v Wannunup Development Nominees Pty Ltd (1994) 12 WAR 561, cited RPS v The Queen (2000) 199 CLR 620, applied Professor CJ Miller, Contempt of Court,(2nd ed, 1989) DAVID ROBERT SIMINTON v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY VID 376 of 2006 DAVID ROBERT SIMINTON v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY VID 397 of 2006 NORTH, GOLDBERG AND WEINBERG JJ 19 JULY 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA