FEDERAL COURT OF AUSTRALIA Australian Prudential Regulation Authority v Siminton (No 11) [2007] FCA 1815 CONTEMPT – Penalty hearing – Where respondent found guilty of contempt for failure to pay a fine imposed by the Full Court – Considerations relevant to penalty – Penalty to reflect seriousness of the matter – Prison term imposed Bankruptcy Act 1966 (Cth) Federal Court Rules O 37 r 2 Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 referred to Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612 referred to Australian Prudential Regulation Authority v Siminton (No 10) [2007] FCA 1814 referred to AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v DAVID ROBERT SIMINTON VID 1607 OF 2005 TRACEY J 28 NOVEMBER 2007 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: TRACEY J DATE OF ORDER: 28 NOVEMBER 2007 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. It be declared that the respondent is guilty of contempt by reason of his failure to pay the fine imposed on him by the Full Court by order dated 19 July 2006. 2. The respondent be committed to prison for a period of four months. 3. A warrant issue for the committal of the respondent to prison for a period of four months. 4. The respondent pay the District Registrar's costs of her notice of motion dated 15 December 2006 on a solicitor-client basis. 5. The warrant issue pursuant to paragraph (3) of these orders lie on the Court file until further order. 6. Until the hearing and determination of any appeal from these orders, or further order: (a) The respondent not attend at any point of international departure; (b) The respondent report in person every Monday (commencing on 3 December 2007) between the hours of 9:00am and 5:00pm to the Nunawading Police Station. 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 1607 OF 2005 BETWEEN: AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY Applicant AND: DAVID ROBERT SIMINTON Respondent JUDGE: TRACEY J DATE: 28 NOVEMBER 2007 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 7 November 2007 I found that Mr Siminton had committed contempt of Court by failing to pay a fine imposed on him by a Full Court within the time stipulated by the Full Court (which included an additional two weeks allowed by the District Registrar under the Full Court's Order): see Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612. These reasons should be read in conjunction with those in Siminton (No 8). 2 On 19 July 2006 the Full Court ordered that Mr Siminton pay a fine of $50,000 "within 60 days or such further time and by such instalments as the District Registrar may allow." The 60 day period expired on 18 September 2006. On that day the District Registrar ordered that Mr Siminton be granted a further 14 days within which to make payment. The extended period expired on 2 October 2006. The fine was not paid despite the fact that Mr Siminton had the financial capacity to do so, at least in part. I found that Mr Siminton's failure to make at least a part payment was wilful. 3 In dealing with the issues arising in relation to the determination of a penalty the District Registrar drew attention to the following matters: · The contempt was properly to be characterised as "very serious": it was one of a number of contempts which occurred at or about the same time; it involved a failure to pay a fine imposed by the Full Court in respect of a separate finding of contempt; and it involved a deliberate and wilful disobedience of the Full Court's order; and · The failure by Mr Siminton to accept any responsibility for the contempt or to express remorse or contrition. 4 Counsel submitted that deliberate disobedience of the Full Court's order required a response which would deter Mr Siminton from committing further contempts and serve the purpose of general deterrence. 5 Mr Siminton relied on the same evidence and submissions which were advanced during the penalty hearing conducted in relation to the contempt findings which I made in Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609: see Australian Prudential Regulation Authority v Siminton (No 10) [2007] FCA 1814 at [9] and [11]. This was character evidence given by two of his friends and submissions that he was impecunious but that an unnamed person might be prepared to provide him with some money to pay any fine which the Court might impose. 6 In Siminton (No 10) at [15] I identified a number of considerations which are relevant to the determination of penalties for contempt. They are derived from the authorities there referred to and I do not repeat them. I have had regard to them in dealing with this matter. 7 An additional consideration which is relevant in the present matter is that the $50,000 fine, imposed by the Full Court, was imposed in substitution for an order made by the trial judge that Mr Siminton be imprisoned for 10 weeks. The substitution was made because the copy of the Court order which had been served on Mr Siminton and which Mr Siminton had been found to have contravened, did not bear the endorsement required by O 37 r 2 of the Federal Court Rules. Such an endorsement appeared on the copy of the Full Court order which was served on Mr Siminton. 8 I take into account, as I did in Siminton (No 10), that: · Mr Siminton has not apologised, expressed regret or in any other way sought to purge his contempt. · Mr Siminton has chosen not to provide evidence of his personal and financial circumstances. · Mr Siminton is an undischarged bankrupt who has failed to provide a statement of his affairs in accordance with the requirements of the Bankruptcy Act 1966 (Cth). · Mr Siminton claims to be impecunious. · Mr Siminton has a friend who might be disposed to provide an undisclosed amount of money to meet any fine which might be imposed by the Court. 9 I also accept the District Registrar's submission that the contempt is properly to be characterised as "very serious" for the reasons which she advanced. 10 In the circumstances I do not consider that it is appropriate to impose a penalty other than a term of imprisonment. I have determined that an appropriate penalty is imprisonment for a term of four months. 11 The District Registrar seeks an order that Mr Siminton pay her costs. In the circumstances I consider that those costs should be paid on a solicitor-client basis. 12 Counsel for Mr Siminton advised the Court that Mr Siminton proposes to file an appeal against my contempt finding and any penalty which I might impose. I will, therefore, hear the parties as to whether or not the warrant for the committal of Mr Siminton to prison should lie in the Registry of the Court until his proposed appeal has been heard and determined. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 28 November 2007 Counsel for the District Registrar: Ms R Orr Solicitor for the District Registrar: Australian Government Solicitor Counsel for the Respondent: Mr D Sharp Solicitor for the Respondent: Erhardt & Associates Date of Hearing: 15 November 2007 Date of Judgment: 28 November 2007