FEDERAL COURT OF AUSTRALIA Australian Prudential Regulation Authority v Siminton [2006] FCA 326 CONTEMPT – whether order of a judge of the Court made on an ex parte application was a nullity or was valid unless set aside – whether the respondent engaged in deliberate conduct in breach of the order Judiciary Act 1903 (Cth) s 39B(1A)(c) Australian Prudential Regulation Authority v Siminton [2006] FCA 140 - cited Louis Vuitton Malletier SA v Design Elegance [2006] FCA 83 - followed Witham v Holloway (1995) 183 CLR 525 - followed RPS v The Queen (2000) 199 CLR 620 - applied Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union & Ors [2000] FCA 629 - cited 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 Macks; Ex parte Saint (2000) 204 CLR 158 - cited Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 - cited Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 - cited AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v DAVID ROBERT SIMINTON VID 1607 OF 2005 MERKEL J 30 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 1607 OF 2005 BETWEEN: AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY APPLICANT AND: DAVID ROBERT SIMINTON RESPONDENT JUDGE: MERKEL J DATE: 30 MARCH 2006 PLACE: MELBOURNE REASONS FOR JUDGMENT Introduction 1 On 14 December 2005, the applicant, the Australian Prudential Regulation Authority ('APRA'), filed an application in the Court seeking interim, interlocutory and final relief against the respondent, Siminton. 2 In its statement of claim dated 21 December 2005, APRA alleged that the respondent had, from about January 2004: (a) carried on, or indicated an intention to carry on banking business in Australia in contravention of s 7 of the Banking Act 1959 (Cth) ('the Act'); (b) assumed or used restricted words or expressions ('bank' and 'banking' in relation to his financial services business in contravention of s 66(1) of the Act); (c) failed to hold money deposited with him by members of the public in a secure manner, and used that money for his own private purposes; and (d) refused to return money to people who had deposited money with him despite receiving requests from the depositors to return that money. 3 APRA alleged that this conduct occurred, at least in part, by the operation by Siminton of a website under the name 'the Principality of Camside'. The website of the Principality of Camside states that the Principality of Camside is the only legal government of Australia. Siminton is described on the website as 'The Governor, State of Sherwood, HM Government of Camside'. The website of the Principality of Camside includes a webpage relating to the Terra Nova Cache which is described as being 'Camside's new bank'. 4 An application for interim relief was heard ex parte by Sundberg J on 15 December 2005 and his Honour made a number of orders ('the Sundberg J orders'). The Sundberg J orders, inter alia, restrained Siminton from disposing of funds held by himself, the Principality of Camside or the Terra Nova Cache and required Siminton to take certain steps, which included the provision of information and documents. The Sundberg J orders were expressed to be 'until further order'. The application for interim relief was adjourned to 10 January 2006. 5 On 23 December 2005, APRA made a further ex parte application to the Court and orders were made by me restraining Siminton from departing from Australia and requiring him to deliver up any passport held by him. 6 On 10 January 2006, the application by APRA for interlocutory relief was heard inter partes by Gray J. Gray J made orders which, inter alia, restrained Siminton until the trial of the action or further order from receiving money from members of the public by way of deposit in the Terra Nova Cache or the Principality of Camside and from dealing with or disposing of certain assets and moneys: see Australian Prudential Regulation Authority v Siminton [2006] FCA 140. 7 Siminton filed notices of motion seeking to discharge the orders made by Sundberg J, Gray J and myself. I adjourned the motions to a date to be fixed. 8 By notices of motion and statements of charge filed on 29 December 2005 and 19 January 2006 ('the contempt motions'), APRA applied for orders that the respondent be punished for contempt in respect of nine alleged breaches of the Sundberg J orders. Siminton applied to have the hearing of the contempt motions adjourned until after the hearing of the substantive proceeding against him or until after the conclusion of any criminal proceedings that might be commenced. I refused Siminton's application and proceeded with the hearing of the contempt motions. 9 Siminton, through his counsel, pleaded not guilty to the contempt charges and put APRA to proof of the charges. Contempt 10 In Louis Vuitton Malletier SA v Design Elegance [2006] FCA 83 (at [6]), I set out the principles applicable to proceedings for contempt: 'Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106-107 ('Mudginberri') and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway (1995) 183 CLR 525 ('Witham') at 530.' 11 In Witham v Holloway (1995) 183 CLR 525 Brennan, Deane, Toohey and Gaudron JJ observed (at 534) that: 'The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt "must realistically be seen as criminal in nature". The consequence is that all charges of contempt must be proved beyond reasonable doubt.' 12 The evidence adduced by APRA and relied upon by it without objection was set out in the following affidavits (together with the exhibits referred to in those affidavits): (a) David John Harley dated 22 December 2005 and 24 March 2006; (b) Matthew Paul Wyllie dated 22 December 2005 and 23 December 2005; (c) Kelly Louise Stephens dated 20 January 2006; (d) Andrew Kok Loong Loh dated 20 January 2006; (e) Yolanda Jodie Robinson dated 23 January 2006; (f) Paul Charles Monsted dated 23 January 2006. 13 It is not seriously in dispute, and I am satisfied that: (a) a copy of the Sundberg J orders was personally served on Siminton on 16 December 2005; (b) the terms of the orders were clear and were capable of being complied with by Siminton; (c) Siminton had knowledge of the terms of the orders. 14 The main issue at the hearing in relation to the charges was whether APRA had established beyond reasonable doubt that Siminton engaged in deliberate conduct which was in breach of the Sundberg J orders. The other issue was whether the Sundberg J orders were made without jurisdiction resulting in them being a nullity and not capable of founding a basis for the contempt motions. The statements of charge 15 In the statements of charge filed on 4 January 2006 and 19 January 2006 (respectively, 'the first statement of charge' and 'the second statement of charge') APRA alleged three kinds of breaches of the Sundberg J orders. First, breaches of Sundberg J's orders that Siminton be restrained, inter alia, from dealing with or disposing of moneys standing to his credit and/or that of his nominee. ('the disposal allegations'). Second, breaches of Sundberg J's orders that Siminton file certain documents and an affidavit with the Court ('the failure to file allegations'). Third, a breach of Sundberg J's order that a certain notice be placed on the websites of the Principality of Camside and the Terra Nova Cache ('the website notice allegation'). Each of the categories of charges and the charges themselves are dealt with below in chronological order. (a) The disposal allegations 16 On 15 December 2005, Sundberg J made the following order: '… 2. Until further order, the Respondent, whether by himself, his servants or agents or otherwise, be restrained from: … (b) dealing with, withdrawing or disposing of, or giving any instructions in relation to the disposition or transfer of, all or any part of the moneys standing to the credit of the Respondent and/or his nominee in any account (whether held alone, jointly or in conjunction with any other person, including any accounts or property in the name of the Principality of Camside or the Terra Nova Cache) in any bank, building society or other financial institution and, without limiting the generality of the foregoing, the following account: Commonwealth Bank of Australia · Account Name: Principality of Camside · Account Number 3162 1027 8861; … SAVE THAT nothing in this Order shall prevent the Respondent from: (d) paying his ordinary and usual living expenses up to a maximum amount of $500 per week, to be drawn first from any cash or bank account held by the Respondent other than the Commonwealth Bank of Australia account 3162 1027 8861; or (e) paying legal costs reasonably incurred in this proceeding or from paying such further sums as may be agreed in writing by the Applicant or permitted by further order of the Court.' 17 Significant evidence in relation to the disposal allegations was set out in the affidavit of Paul Charles Monsted ('Monsted') sworn 23 January 2006. Monsted is the managing director of Technocash Pty Ltd ('Technocash') which he described as being 'an internet-based service to facilitate money transfers both within Australian and internationally.' Charge 1.1 in the second statement of charge 18 In paras [24]-[34] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.1 in the second statement of charge: '24. On 17 December 2005, the Respondent effected or gave instructions in relation to the transfer of $536,880.18 from the Terra Nova Cache account, held with Technocash, to the Agios account, also held with Technocash. 25. Technocash is an internet-based service that facilitates money transfers within Australia and internationally. 26. At all relevant times the Respondent held the Terra Nova Cache account at Technocash, Account No 6276 2753 8201 2500. 27. The formal name of the Terra Nova Cache account, being Account No 6276 2753 8201 2500, is "Dr David Siminton". The trading name of that account up to and including 21 December 2005 was "Terra Nova Cache". 28. The trading name of the Terra Nova Cache Account changed after 21 December 2005. At the time of the transfer of 17 December 2005, the trading name of the account was "Terra Nova Cache". This is evident from transaction details recorded in Annexure "PCM4" to the Monsted affidavit. 29. "PCM4" is a true copy of a print-out recording Transaction Details for the Agios account. The 5th item in "PCM4" records a deposit of $536,880.[18] from the Terra Nova Cache account on 17 December 2005 to the Agios account. 30. The corresponding debit entry to the Terra Nova Cache account is recorded in Annexure "PCM2" to the Monsted affidavit. Item 8 records a debit of $536,880.[18] on 17 December 2005. The "Function" column records "Sent to BF", meaning that the funds were transferred to another Technocash BillFold account. The transfer was made from the Terra Nova Cache account to the Agios account. 31. The contact person for the Agios account is Hardy Erhardt, the Respondent's solicitor. 32. APRA submits that the transfer of $536,880.[18] from the Terra Nova Cache account to the Agios account was deliberate. The person who made this internet transfer was required to verify his or her intentions by selecting appropriate responses from drop-down menus after logging-on. The Respondent is the only person authorised to use his Technocash Account. No other persons are listed. 33. Further, APRA submits that the Respondent, or a person acting on the Respondent's instructions, made the transfer. The Respondent's Technocash Account has two levels of security: 33.1 The first level of security involves the user providing an account number and password to log-on to the account. 33.2 The second level of security requires the user to enter a "spend" password, which protects transfers out of the account. 34. The conclusion that the Respondent deliberately effected, or gave instructions in relation to the transfer of $536,880.[18] from the Terra Nova Cache account to the Agios account is the only rational inference to be drawn from the evidence outlined in paragraphs 32 and 33 above, and in paragraph 48 below [see para 21 of judgment]. Any alternative hypothesis could not be regarded as reasonable in the absence of evidence to support that hypothesis when that evidence, if it exists as all, must be within the knowledge of the Respondent.' (footnotes omitted) Charge 1.2 in the second statement of charge 19 In paras [35]-[37] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.2 in the second statement of charge: '35. On 19 December 2005, the Respondent effected or gave instructions in relation to the transfer of $5,000 from the Terra Nova Cache to an account held with an external financial institution. 36. The debit-side of the transaction is recorded in Annexure "PCM2" to the Monsted affidavit. The 7th item in "PCM2" records a transfer from the Terra Nova Cache account in the amount of $5,000. The funds were transferred to "MyBank", meaning that the funds were transferred to an external bank account. The description of the transaction is "Mommy Help Funds". 37. For the reasons set out in paragraphs 32 to 34 above, APRA submits that transfer was made deliberately by the Respondent or by a person acting on the Respondent's instructions.' (footnotes omitted) Charge 1.3 in the second statement of charge 20 In paras [38]-[39] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.3 in the second statement of charge: '38. On 20 December 2005, the Respondent effected or gave instructions in relation to the transfer of $38,000 from the Terra Nova Cache account to the Agios account. 38.1 The debit-side of the transaction is recorded in Annexure "PCM2" to the Monsted affidavit. The 5th item in "PCM2" records a transfer from the Terra Nova Cache account in the amount of $38,000 to the Agios account. 38.2 The corresponding credit entry for the transaction is recorded in Annexure "PCM4" to the Monsted affidavit. The 3rd item in "PCM4" records a deposit of $38,000 from the Terra Nova Cache account (No 6276 2753 8201 2500) on 20 December 2005 to the Agios account. 39. For the reasons set out in paragraphs 32 to 34 above, APRA submits that the transfer was made deliberately by the Respondent or by a person acting on the Respondent's instructions.' (footnotes omitted) Charge 1.1 in the first statement of charge 21 In paras [42]-[48] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.1 in the first statement of charge: '42. On 21 December 2005, the Respondent in the company of Mr David John Dodson (Dodson) attended the Pakenham branch of the Bendigo Bank, where they were served by Ms Kelly Stephens, Customer Service Supervisor. 43. Mr Dodson holds two accounts with Bendigo Bank: a 1401 account (transactional account) and a BC01 account (savings account). On 20 December 2005 two direct credits were made into the 1401 account. The first credit was for $205,000 and the second credit was for $324,000. Those credits were the result of transfers from the Agios account, made after the transfer to that account from the Terra Nova Cache account referred to in paragraph 24 above. 44. Dodson told Ms Stephens that he wished to withdraw $500,000 in cash. 45. Dodson requested that the Respondent be made a signatory to his 1401 account, No 108014580. 46. The Respondent provided Ms Stephens with 100 point identification, comprising: (a) Victoria Driver's Licence number 212228155; and (b) Australian passport number L8539460. 47. The Respondent and Mr Dodson completed an account alteration form to add the Respondent as a signatory to the 1401 account number 108014580. The Respondent was added as a signatory to this account on 21 December 2005. 48. At approximately 4.45 pm on 21 December 2005 Mr Andrew Loh, Branch Manager of the Pakenham Branch of Bendigo Bank, spoke to the Respondent who told Mr Loh that the money was required to pay the wages of Dodson's brother, and that the funds were cleared funds from the Respondent's company which had been sent via an intermediary called Technocash.' (footnotes omitted) Charge 1.2 in the first statement of charge 22 In paras [49]-[51] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.2 of the first statement of charge: '49. On 21 December 2005, the Respondent effected or gave instructions in relation to the transfer of $10,000 from Bendigo Bank account No 108014580, of which he was a signatory, to Commonwealth Bank Credit Card No 4940 5252 7595 0252. 50. The Respondent was provided with internet banking access to the Bendigo Bank account on being made a signatory to the account. The Respondent's internet banking number is 625183902. (Dodon has a separate internet banking access number of 625183901). 51. At 12:06pm on 21 December 2005, an internet Billpay transfer was effected from the Bendigo Bank account by the use of the Respondent's internet banking number. The transfer, in the amount of $10,000, was to the Commonwealth Bank Credit Card No 4940 5252 7595 0252.' (footnotes omitted) 23 David Harley, the Senior Manager, Fraud Prevention and Control at Bendigo Bank, stated in his affidavit sworn on 24 March 2006 that the internet banking access number used to effect this transfer was one specifically allocated to Siminton and was different to the number allocated to Dodson. Harley also stated that Bendigo Bank's terms and conditions require that the password of an internet banking user be kept secret. Charge 1.4 in the second statement of charge 24 In paras [40]-[41] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.4 in the second statement of charge: '40. On 21 December 2005, the Respondent effected or gave instructions in relation to the transfer of $43,000 from the Terra Nova Cache account to the Agios account. 40.1 The debit-side of the transaction is recorded in Annexure "PCM2" to the Monsted affidavit. The 2nd item in "PCM2" records a transfer from the Terra Nova Cache account in the amount of $43,000 to the Agios account. 40.2 The corresponding credit entry to the transaction is recorded in Annexure "PCM4" to the Monsted affidavit. The 1st item in "PCM4" records a deposit of $43,000 from the Terra Nova Cache account (no 6276 2753 8201 2500) on 21 December 2005 to the Agios account. 41. For the reasons set out in paragraphs 32 to 34 above, APRA submits that the transfer was made deliberately by the Respondent or by a person acting on the Respondent's instructions.' (footnotes omitted) 25 Although counsel appearing for Siminton contended that the evidence did not establish deliberate breaches of the orders by Siminton as is alleged in the disposal allegations, he did not point to any specific deficiencies in APRA's evidence nor did he explain why the inferences that APRA was seeking to establish (to the effect that Siminton, whether by himself or others acting as his agent, disposed of or gave instructions to dispose of moneys in the accounts referred to in [2] of the Sundberg J orders) should not be drawn. 26 I am satisfied that the evidence adduced by the applicant establishes each of the matters of fact relied upon by APRA. The evidence was not controverted and is strongly supported by the affidavit and documentary evidence. 27 The relevance of the failure of an accused, to give evidence was explained in RPS v The Queen (2000) 199 CLR 620 where Gaudron A‑CJ, Gummow, Kirby and Hayne JJ stated (at 632-633 [27]): '…it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen: "[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused."' (footnotes omitted) 28 See also Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union & Ors [2000] FCA 629 ('AIG') at [58]. 29 In the present case, Siminton's failure to contradict the 'damning' inferences which APRA claims ought to be drawn from the proven facts, leaves no real scope for a rational or reasonable hypothesis consistent with his innocence. In the circumstances, I am satisfied beyond reasonable doubt that: (a) the inferences contended for by APRA ought to be drawn; (b) the conclusions contended for by APRA are entirely justified and warranted by the evidence; (c) the evidence does not justify or warrant a finding that there is any reasonable or rational hypothesis consistent with Siminton's innocence of the contempt charges. 30 For the reasons set out in APRA's submissions, I am satisfied that APRA has proved beyond reasonable doubt that Siminton deliberately engaged in the conduct set out in charges 1.1 and 1.2 of the first statement of charge and charges 1.1, 1.2, 1.3 and 1.4 of the second statement of charge and that that conduct breached the Sundberg J orders in the manner alleged by APRA. (b) The failure to file allegations Charge 1.3 in the first statement of charge 31 On 15 December 2005, Sundberg J made the following order: '3. Subject to the right of the Respondent to object to producing any information or document on the ground that to do so may tend to incriminate him, the Respondent, on or before 22 December 2005, make and swear, and file and serve, a full and sufficient affidavit setting out: (a) The name and address of any bank, building society or other financial institution at which there is an account in the name, or under the control, of the Respondent (including, but not limited to, any accounts in the name of the Principality of Camside or the Terra Nova Cache), together with the number of such account and the balance therein at the date of service of notice of this order upon the Respondent; (b) The amount of cash in the possession of or under the control of the Respondent at the date of service of notice of this order upon the Respondent (including any cash in the possession of or under the control of any person who lives at the same residential address as the Respondent); (c) The name and address of any person or persons indebted to the Respondent at the date of service of notice of this Order upon the Respondent, and the amount of the debt or debts owed by such person or persons; (d) Full details of all facts and matters within the knowledge or belief of the Respondent concerning the receipt of money by the Respondent, the Principality of Camside or the Terra Nova Cache, or the transfer of money by the Respondent to any other person, including in relation to each occasion on which money was received or transferred: (i) the amount so received or transferred; (ii) from whom the money was received or to whom the money was transferred; (iii) the address and [contact] details of the person or entity from whom the money was received or to whom it was transferred; (iv) when it was received or transferred; (v) for what purposes it was received or transferred; (vi) the terms upon which it was received or transferred; (vii) the manner in which the said funds were dealt with; and (viii) the current location and amount of the said funds or any earnings thereof.' 32 In paras [52]-[54] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.3 of the first statement of charge: '52. The Respondent did not, on or before 22 December 2005, make and swear and file and serve the affidavit the subject of paragraph 3 of the Order. 53. On 4 January 2006, the Respondent swore an affidavit, claiming privilege against self-incrimination in relation to the making and swearing of the affidavit the subject of paragraph 3. 54. Nevertheless, the Respondent breached paragraph 3 by failing to make and swear any affidavit on or before 22 December 2005.' (footnotes omitted) 33 Although Siminton filed no evidence, it was common ground that on a date after 22 December 2005, he exercised his entitlement to object to complying with [3] of the Sundberg J orders on the ground of self-incrimination. 34 In my view, APRA has not established charge 1.3 beyond reasonable doubt. The requirement to file the affidavit was expressed to be subject to Siminton's right to object to filing the affidavit on the ground of self-incrimination. There is some ambiguity in the order in relation to whether the obligation imposed by it is subject to the objection being made prior to 22 December 2005 or whether the obligation itself is subject to the right to object. As I explained in AIG at [33] and [41], a person will not be committed for contempt where, on one construction of the order said to have been breached, there may not have been a breach. In the present case, two constructions of [3] of the Sundberg J orders are reasonably open and, because the breach only arises on one of those constructions, the contempt alleged cannot be established beyond reasonable doubt. Charge 1.4 in the first statement of charge 35 On 15 December 2005, Sundberg J made the following order: '4. Subject to the right of the Respondent to object to producing any information or document on the ground that to do so may tend to incriminate him, on or before 22 December 2005, the Respondent produce to the Victoria District Registrar of the Court the originals of all statements of account, deposit slips, transfer applications, or records or memoranda of any kind in his possession, custody or control that relate to deposits with, earnings from (including any profit share or interest), or the withdrawal of any funds that relate to the Principality of Camside or the Terra Nova Cache.' 36 In paras [55]-[57] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.4 of the first statement of charge: '55. The Respondent did not, on or before 22 December 2005, produce to the Victoria District Registrar of the Court the documents the subject of paragraph 4 of the Order. 56. On 4 January 2006, the Respondent swore an affidavit, claiming privilege against self-incrimination in relation to the production of the documents. 57. Nevertheless, the Respondent breached paragraph 4 by failing to produce the documents on or before 22 December 2005.' (footnotes omitted) 37 For the reasons set out in [34], I am not satisfied beyond reasonable doubt that Siminton breached [4] of the Sundberg J orders by failing to produce documents to the Court as required by that order. (c) The website notice allegations 38 On 15 December 2005, Sundberg J made the following order: '5. Within two days of this order being served upon him, the Respondent cause to be published on the first page that a user views when he or she access: (a) any current, proposed or future internet site that uses the names "Principality of Camside", "Terra Nova Cache" or any derivation thereof; and (a) any other internet site controlled by the Respondent; a notice in form set out in Schedule 1 hereto.' Charge 1.5 in the first statement of charge 39 In paras [58]-[60] of its written submissions, APRA set out the matters it says are established by the evidence in respect of charge 1.5 of the first statement of charge: '58. The Respondent did not, within two days of 16 December 2005 (the day when the orders of Sundberg J were served on the Respondent) cause a notice to be placed on the internet site of "the Principality of Camside" the notice in the form set out in Schedule 1 to the Order, as required by paragraph 5. 59. On 4 January 2006, the Respondent swore an affidavit in which he attested that the required notice "now appears on the website of the Principality of Camside" and that he had attempted to place a similar notice on "a website for the Terra Nova Cache". The Respondent does not testify as to the date when the required notice was inserted on the website of "the Principality of Camside". 60. Despite his belated claimed compliance with paragraph 5, the Respondent breached that order by failing, by 18 December 2005, to cause the notice to be placed on the website of "the Principality of Camside" – a breach that continued until at least 23 December 2005.' (footnotes omitted) 40 In an affidavit sworn on 23 December 2005, a senior analyst at APRA, Matthew Paul Wyllie, stated that on 23 December 2005, he logged on to the Principality of Camside website and that no notice in the form set out in Schedule 1 to the Sundberg J orders had been placed on that website. He exhibited to his affidavit a print out of a webpage headed 'Welcome to HM Government of Camside' which had a button with the word 'Enter' on it. The date on the bottom of the print out is 23 December 2005. There is no notice of the requisite kind on that print out. 41 Paragraph 5 of the Sundberg J orders required Siminton to 'cause' a particular outcome. He failed to do so and there is no evidence that he was unable to 'cause' that outcome. In the circumstances, I am satisfied beyond reasonable doubt that Siminton breached [5] of the Sundberg J orders by failing to cause the requisite notice to be posted on the website of the Principality of Camside within two days of service of the Sundberg J orders. I am also satisfied beyond reasonable doubt that Siminton breached [5] by failing to cause the requisite notice to be posted on the website of the Terra Nova Cache within two days of service of the Sundberg J orders. Validity of the Sundberg J orders 42 The other basis of Siminton's opposition to the contempt motions was his counsel's endeavour to argue that the Sundberg J orders were made without jurisdiction and were therefore a nullity. It was submitted that it follows that Siminton was not obliged to comply with the orders and that therefore there could be no breach of those orders. 43 Although I had some difficulty in following the submission, made on behalf of Siminton the matters alleged by him can be summarised as follows: (a) a failure to file a statement of claim as required by O 4 r 6(1A) of the Federal Court Rules; (b) the failure of APRA to make a full and frank disclosure to Sundberg J on the ex parte application; (c) APRA's concession to Sundberg J that the evidence did not establish a breach of s 7 of the Act; (d) APRA's claim for damages was an abuse of process; (e) there was no proper basis for seeking a Mareva injunction; (f) the interim injunction should not have been made 'until further order'; (g) the usual undertaking as to damages was not required; (h) Sundberg J did not take into account the potential effect of the order on third parties; (i) APRA submission about the threshold for a Mareva injunction was wrong; (j) Sundberg J stated in the transcript that he had not read all of the evidence; and (k) APRA's application was an abuse of process. 44 There are two fundamental problems with the submission. The first is that the matters alleged by Siminton to establish absence of jurisdiction to make the Sundberg J orders do not, even if made out, establish absence of jurisdiction. Counsel for Siminton was not able to cite any authority in support of his submission that any of the above matters, if made out, would result in absence of jurisdiction. Plainly, none of the matters relied upon go to the jurisdiction of a judge of the Court to make the Sundberg J orders. I would add that, in any event, the submission was wholly misconceived as I am not satisfied that the allegations relied upon are justified or would warrant any of the Sundberg J orders being set aside. For example, s 65A(10) of the Act provides that APRA 'cannot be required' to give an undertaking as to damages. Also, it is clear that APRA's proceeding does not fall within O 6 r 6(1A). In so far as any of the above matters go to the merits, Siminton's counsel was unable to persuade Gray J on the later inter partes application hearing that Mareva type orders should not be made or that there was any disqualifying conduct of any kind on the part of APRA. 45 The second fundamental difficulty with Siminton's jurisdiction argument is that the Sundberg J orders were made by a judge of a superior court of record and were therefore valid and binding until set aside, even if the orders were in excess of jurisdiction: see Cameron v Cole (1944) 68 CLR 571 at 590; Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590 at 602 and R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 215. 46 The need to obey superior court orders made in excess of jurisdiction was explained in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 in which the High Court considered, inter alia, the effect of an order which ought not have been made. Wilson J and Dawson J stated (at 620): 'In the same way, a court which is given power to determine the facts upon which its jurisdiction depends may, if it proceeds upon a wrongful determination, be said in one sense to exceed its jurisdiction, but its orders will be valid unless and until corrected on appeal. The position is otherwise where it is apparent on the face of a purported exercise of jurisdiction that there is no power or where the court's jurisdiction depends upon matters in dispute which cannot be conclusively determined by the court.' (footnotes omitted) 47 See also Deane J (at 627) with whom Mason CJ agreed (at 616). 48 Even where jurisdiction is lacking as a result of invalidity of the legislation purporting to confer jurisdiction, an order of a superior court will be binding until set aside. In Re Macks; Ex parte Saint (2000) 204 CLR 158, the High Court considered the effect of orders for winding up made by the Federal Court pursuant to jurisdiction purportedly conferred by invalid legislation. The High Court concluded that the orders of the court were binding until set aside despite the absence of jurisdiction. Gaudron J stated (at 185-187 [52]-[57]): '…the Constitution expressly contemplates that federal courts might be empowered to make decisions with respect to their own jurisdiction which are binding until set aside. In establishing the Federal Court as "a superior court of record", the Parliament has, at the very least, validly authorised that Court to make a binding determination on the question whether or not it has jurisdiction in a matter, subject only to the parties' right to appeal or to seek relief pursuant to s 75(v) of the Constitution. And, if the Federal Court determines that it has jurisdiction, it is obliged, subject only to limited and well recognised exceptions, to exercise that jurisdiction to determine the rights and liabilities in issue. That is the nature of judicial power. The practical consequence of those two considerations is that, by operation of s 109 of the Constitution, orders of the Federal Court, even if made without jurisdiction, are final and binding unless set aside on appeal or pursuant to s 75(v) of the Constitution. … It follows from what has been said with respect of s 5(2) of the Federal Court Act that an order of the Federal Court made without jurisdiction is not a nullity.' (footnotes omitted) 49 Gummow J and Kirby J took a similar approach: see 235-237 [214]-[220] and 248-249 [254]-[256] respectively. McHugh J also agreed that the orders were binding until set aside in so far as they impliedly determined that the Federal Court had jurisdiction (at 215 [151]). Hayne and Callinan JJ expressed reservations about whether orders made by the Federal Court in relation to matters beyond the Commonwealth's legislative competence would be binding, but nonetheless stated (at 279 [344]): 'The practical consequence…is that orders made by the Federal Court are valid until they are set aside. That is so because implicit in an assertion of jurisdiction is the conclusion about the constitutional validity of that assertion. For the reasons given earlier, the authority to decide and the power to provide that the order is binding until set aside is sufficiently rooted in ss 77 and 76.' 50 However, as was observed by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391: 'It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the actual legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and order must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.' 51 See also the discussions in Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 at 57-58 [197]. 52 APRA's claims against Siminton constituted a justiciable dispute arising under the Act, which is a law made by the Federal Parliament. The jurisdiction of the Court in respect of that dispute is conferred by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) which confers jurisdiction on the Federal Court in any matter arising under any laws made by the Federal Parliament. It is unnecessary to consider if it also arises under s 39B(1A)(a). Section 65A of the Act and s 23 of the Federal Court Act 1976 (Cth) plainly conferred power to make the Sundberg J orders. In particular, s 65A conferred power on the Court to grant 'an interim injunction' pending determination of an application for an injunction under s 65A(1). The jurisdiction exercised by Sundberg J was one in which his Honour was given power to determine the facts upon which his jurisdiction was based. It was not a jurisdiction that was preconditioned upon facts or any other matters which his Honour was not given the power to determine. Accordingly, the orders were valid and binding until set aside even if, contrary to my findings, there was an excess or absence of jurisdiction. 53 For the above reasons, the arguments of Siminton as to absence of jurisdiction to make the Sundberg J orders are without substance and are to be rejected. Conclusion 54 It follows that the charges the subject of the disposal and website allegations have been established beyond reasonable doubt and that the charges the subject of the failure to file allegations are to be dismissed. I propose to give directions for a further hearing in relation to penalty. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel J. Associate: Dated: 30 March 2006 Counsel for the Applicant: D Sharp Solicitor for the Applicant: Erhardt & Associates Counsel for the Respondent: D Mortimer SC with St J Hibble and V Priskich Solicitor for the Respondent: Australian Prudential Regulation Authority Date of Hearing: 29 March 2006 Date of Judgment: 30 March 2006