Siminton v Australian Prudential Regulation Authority (No 2) [2008] FCAFC 112

FEDERAL COURT OF AUSTRALIA

Siminton v Australian Prudential Regulation Authority (No 2) [2008] FCAFC 112

DAVID ROBERT SIMINTON v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

VID 1153 of 2007

SPENDER ACJ, LANDER AND BUCHANAN JJ

5 JUNE 2008

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1153 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: DAVID ROBERT SIMINTON

Appellant

AND: AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

Respondent

JUDGES: SPENDER ACJ, LANDER AND BUCHANAN JJ

DATE OF ORDER: 5 JUNE 2008

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The application for a stay of Order 6 of the Full Court made on 30 May 2008 in proceedings VID1153/2007 is refused. 2. The applicant on the Notice of Motion pay the costs of the respondent on the Notice of Motion, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1153 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: DAVID ROBERT SIMINTON

Appellant

AND: AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

Respondent

JUDGES: SPENDER ACJ, LANDER AND BUCHANAN JJ

DATE: 5 JUNE 2008

PLACE: BRISBANE

REASONS FOR JUDGMENT SPENDER ACJ: 1 This application for a stay raises some significant questions as to the circumstances in which an intermediate appellate court should or should not grant a stay of its orders pending a proposed application for special leave to appeal to the High Court of Australia. 2 This is an application by a notice of motion dated 2 June 2008 seeking a stay of an order of the Full Court of the Federal Court of 30 May 2008, pending the hearing and determination of an application for special leave to appeal to the High Court of Australia from the orders of the Full Court made on that day. 3 On 30 May 2008, a Full Court, consisting of Spender ACJ, Lander and Buchanan JJ, dismissed an appeal from orders of Tracey J who had found the appellant in contempt of orders made by Gray J. In respect of those established contempts, Tracey J sentenced the appellant to 12 months' imprisonment. 4 On the appeal to the Full Court, the Full Court made an order, amongst others, that: Pursuant to Order 6 of the orders of Tracey J in proceedings VID 1607 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. 5 On 30 May 2008, after delivery of the orders of the Full Court and the publishing of the reasons for judgment by the Full Court, counsel for Mr Siminton made an oral application for a stay of the order the subject of this application. I made interim orders staying that order until 4 pm on 5 June 2008, today. That stay was granted on the basis of the submission on behalf of the present applicant that he intended to apply for special leave to appeal to the High Court, and that he would bring a notice of motion for a stay in the usual way. That application for a stay was heard this morning. 6 There is no argument between the parties as to the principles to be applied on this stay application. First, the application to stay an order of the Full Court is properly made, in the first instance, to the Full Court making the order, rather than to the High Court: Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 (Burgundy Royale) at 684, where Brennan J said: When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court - the court in which the matter is pending and which is familiar with the matter - that an application to stay should first be made. 7 Secondly, the Federal Court has power to stay its judgment pending an application of a special leave to appeal to the High Court: O 37 r 10 of the Federal Court Rules. Pursuant to s 25(2)(d) of the Federal Court of Australia Act 1976 (Cth), that power can be exercised either by a single judge or by a Full Court. 8 Section 25(2)(d) relevantly provides: Applications to stay an order of a Full Court may be heard or determined by a single judge or by a Full Court. 9 The parties accept that the principles set out by Brennan J, as he then was, in Burgundy Royale apply in deciding whether a stay should be granted. 10 Brennan J said, at 683: The jurisdiction to grant a stay arises if the stay is necessary to preserve the subject matter of the application. 11 As his Honour said, at 684: A stay of proceedings pending an application for special leave is an extraordinary jurisdiction, and an applicant must demonstrate exceptional circumstances before its exercise is warranted. 12 Relevant to the exercise of the Court's discretion, the factors that are material are, first, the prospects of whether special leave to appeal will be granted; secondly, whether the grant of a stay will cause loss to a respondent; and, thirdly, where the balance of convenience lies (see Brennan J at 685). 13 In this case, there is no claim to any loss to the respondent should a stay be granted. The central question on this application (a question which is not directly addressed by any authority cited by any of the parties) is, on the assumption that an application for special leave would enjoy some prospect of success, does the circumstance that, if a stay is not granted, the applicant for special leave might serve about two months of a 12 months sentence of imprisonment before the hearing and determination of his application for special leave, (which imprisonment in the event of a successful application for special leave and a successful appeal would be unwarranted) satisfy the criterion that a stay should be granted, because not to do so would render the application for special leave and the subsequent appeal nugatory. 14 The respondent contends that the fundamental assumption is not made out on the facts of this case, and that even if it were, the proposed appeal, should a stay be refused, is not rendered nugatory.