Siminton v Australian Prudential Regulation Authority [2008] FCAFC 88

FEDERAL COURT OF AUSTRALIA

Siminton v Australian Prudential Regulation Authority [2008] FCAFC 88

BANKING – appeal against findings of contraventions of sections of the Banking Act – whether appellant was engaged in a "banking business" – where it had been established that the appellant had made a loan – held that the making of the loan by the appellant was enough to establish that the appellant had engaged in the business of banking – held that it need only be established that a person proposes to engage in banking business to enliven s 65A – held that the evidence was sufficient to enliven s 65A – held that orders made under s 65A were appropriate and properly made CONSTITUTIONAL LAW – appeal from judgment that section 65A of the Banking Act is not unconstitutional – whether s 65A supported by s 51(xiii) of the Constitution (the banking power) – held that s 65A is clearly a valid exercise of the power derived from s 51(xiii) (the banking power) and s 51(xxxix) (the incidental power) of the Constitution CONSTITUTIONAL LAW – appeal from judgment that section 65A of the Banking Act is not unconstitutional – whether interlocutory restraining orders imposed on the appellant amounted to acquisitions not "on just terms" in contravention of s 51(xxxi) of the Constitution – held that the restraining orders did not amount to an acquisition of property – held that in any case s 51(xxxi) would have no application in this case as to require the provision of just terms in the imposition of restraints would defeat the purpose of the restraint itself CONSTITUTIONAL LAW – appeal from judgment that section 65A of the Banking Act is not unconstitutional – whether orders imposed under s 65A amount to a conviction of committing contraventions of the Banking Act without criminal trial by jury in contravention of s 80 of the Constitution – held that the appellant has not been convicted of any crime – held that s 65A contains a civil procedure to provide remedies – held that s 80 has no application to procedures of the kind in s 65A CONSTITUTIONAL LAW – appeal from judgment that section 65A of the Banking Act is not unconstitutional – whether s 65A offends against the separation of powers in the Constitution – held that s 65A does not confer on the Court any legislative function PRACTICE AND PROCEDURE – appeal against finding that proceedings brought against the appellant were not an abuse of process – whether principal proceedings were brought for a collateral purpose – held that the complaints made do not support the contention – held that there was no abuse of process