Australian Prudential Regulation Authority v Siminton (No 12) [2008] FCA 101

FEDERAL COURT OF AUSTRALIA

Australian Prudential Regulation Authority v Siminton (No 12) [2008] FCA 101

PRACTICE AND PROCEDURE – Notice of motion on behalf of the receiver – Application seeking further funds to be included in the receivership, an extension of time of the receivership and for the respondent to attend for examination and file an affidavit of documents – Whether respondent should be excused in limine from swearing affidavit or attending for examination – Whether examination or affidavit of documents would expose respondent to self incrimination - Application granted in part WORDS AND PHRASES – "in limine objection" Banking Act 1959 (Cth) ss 7 and 66 Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 referred to Refrigerated Express Lines (A/sia) Pty Ltd v Australian Meat and Live-stock Corporation (1979) 42 FLR 204 followed Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 referred to Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372 referred to AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v DAVID ROBERT SIMINTON VID 1607 OF 2005

TRACEY J

21 FEBRUARY 2008

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: 6 FEBRUARY 2008 (ORDERS 1-3); 21 FEBRUARY 2008 (ORDERS 4-6)

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The following funds be included in the funds described as Schedule A of the Orders made herein on 7 November 2007: (a) the amount of $43,950.73 which was previously in Technocash Pty Ltd account number 6276 2747 3470 5861 in the name of Agios/Lionsgate Savings & Loans and was transferred to McGrathNicol Appointment Trust Account (account number 032 000 584 911) on or about 15 November 2007; (b) the amount of $70.50 which was previously in Technocash Pty Ltd (account number 6276 2735 2556 2101) in the name of Agia and which was transferred to the McGrath/Nicol Appointment Trust Account on or about 15 November 2007; (c) the amount of US$31,010 held in Technocash Pty Ltd account number (6276 2792 0407 2783) in the name of Platinum Continental Limited; (d) any funds held on behalf of the Respondent, the Principality of Camside or the Terra Nova Cache in Anglo Irish Bank (Austria) AG account number (304814) in the name of the Respondent; and (e) any funds held on behalf of the Respondent, the Principality of Camside or the Terra Nova Cache in Adelaide Bank account number (070787941 (BSB 610‑101)) in the name of Dale and Karen Holzheimer. 2. The period of the Receiver's appointment pursuant to paragraph 1 of the Orders made on 7 November 2007 be extended to 7 April 2008; 3. The time within which the Receiver is required to prepare and file the report referred to in paragraph 12 of the Orders made on 7 November 2007 be extended to 10 March 2008. 4. The Respondent file, by 4:00 pm on 29 February 2008, an affidavit: (a) listing the documents relating to monies received from members of the public for deposit in the Terra Nova Cache ("the Documents") he has in his possession, custody or power; (b) listing the Documents he once had, but now does not have, in his possession, custody or power; (c) setting out, in respect of the Documents referred to in sub-paragraph (b) above, what has become of those Documents and where they are now located; and (d) setting out, to the extent that he claims that any of the Documents referred to in the sub-paragraphs above are subject to a claim in respect of privilege, the basis for the claim of privilege. 5. The Respondent provide to the Receiver, within seven days of a written request being made by or on behalf of the Receiver, a copy of the Documents listed in the affidavit (other than documents for which privilege is claimed) referred to in paragraph four above. 6. Liberty to apply is reserved generally and in relation to the description of any particular document or documents appearing in any affidavit prepared in compliance with paragraph four above. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.