Case: Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 (2006) 152 FCR 129
Outcome: followed
Service of the order of 4 September 2006 was effected personally on Ms Bell. The order so served was endorsed with the notice required by O 37 r 2 of the Federal Court Rules . The order itself was not signed by the registrar, although it bore the stamp of the seal of the Court. The order had been so stamped in consequence of it having been filed electronically, pursuant to O 1 r 5A(1)(e) and O 1 r 5AC of the Federal Court Rules . In accordance with O 1 r 5AC(5)(b), the document served had attached to it a notice of filing bearing a facsimile signature of the registrar. There is a question whether the appearance of the signature of the registrar on that notice, attached to the copy of the order served, is sufficient compliance with the requirement for signature imposed by O 37 r 2. See Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 (2006) 152 FCR 129 at [64] ; and see O 36 r 7 of the Federal Court Rules . The question need not be answered in the present case, because O 37 r 2(5) clearly applies in the case of the order of 4 September 2006 to both Ms Bell and Living It Up; Ms Bell was aware of the terms of the order, and Living It Up is fixed with her knowledge. In any event, it is clear that, by the time the order of 4 September 2006 was made, Ms Bell had already put it out of her power, and that of Living It Up, to comply with the order, by disposing of the proceeds of sale of the Mariners Place property in the manner I have described. 32 The statement of charges in the notice of motion, pursuant to O 40 r 6 of the Federal Court Rules , reads as follows: '1. The respondents failed to pay into an interest-bearing trust account operated by Kelly &amp; Chapman Solicitors ( the Account ) the proceeds of sale (after deduction of the reasonable costs and expenses of sale) of the property situated at and known as 8 Mariners Place, Noosa Heads, Queensland ( the Property ), having: (a) been ordered to do so by the Court on 10 June 2005; and (b) sold the Property on or before 18 October 2005. 2. The respondents failed to pay into the Account the whole of the proceeds of sale of the Property after deduction of the reasonable costs and expenses of the sale by 15 September 2006, having been: (a) ordered to do so by the Court on 4 September 2006; and (b) served with that order on 11 September 2006.' 45 The power of the English courts to punish for contempt of court at the date of commencement of the Judiciary Act was clearly limited to the power to fine or the power to imprison or, in the case of a corporation, to order sequestration of the assets of the corporation. Rule 11.04.1(a) of the High Court Rules 2004 (Cth) presently provides that, in the case of a natural person, the order may be 'that the contemnor pay a fine, be committed to prison, or both pay a fine and be committed to prison'. In Siminton at [74], the Full Court relied upon r 11.04 of the High Court Rules as removing any doubt as to whether this Court could impose a fine for contempt of court, and as making it clear that both a fine and committal to prison were available penalties. Given that it is possible to include in the one order both a fine and a term of imprisonment, there appears to be no sound reason why the two powers should not be exercised by imposing a fine, with a term of imprisonment in default of payment of the fine, or part of the fine, in order to enforce the payment. In Viner v Australian Building Construction Employees' and Builders Labourers' Federation (No 3) (1982) 63 FLR 242, Keely J made such an order. The order was set aside by the Full Court in Australian Building Construction Employees' and Builders Labourers' Federation v Viner (1982) 63 FLR 253, but not on the ground that it was beyond power. In Australian Industrial Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia &amp; Ors [2001] FCA 774 (2001) 188 ALR 653 at [17] Merkel J suggested that, as a matter of practice in an order fining a contemnor, the Court ought always to make provision for enforcement of that order, in the event that the fine is not paid. His Honour suggested that, in most cases, it would be sufficient for the order to provide that, in default of payment, the district registrar must apply to the Court for directions concerning the enforcement of the order. If that were done, there seems little doubt that the Court would have power to impose a sentence of imprisonment upon the application for directions for enforcement. If that be the case, there seems to be no reason why the Court could not impose a sentence of imprisonment in default of payment of the fine, or part of the fine, in the first place. I am not to be taken as suggesting that the Court ought to do this in every case. There will undoubtedly be many cases in which the Court takes the view that a contempt is insufficiently serious to warrant imprisonment, and that the contemnor's means are such that other enforcement methods will be sufficient to enable the fine to be collected, if it is not paid in accordance with the order. I am satisfied, however, that a sentence of imprisonment in default of payment of a fine, or part of a fine, is a course within the powers of this Court.