Case: Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129
Outcome: referred to
Mr Siminton lodged an appeal against the findings and orders made by Merkel J. His appeal was allowed in part because the sealed copy of the orders made by Sundberg J, although personally served on Mr Siminton, had not contained the endorsement required by Order 37 Rule 2 of the Federal Court Rules . The order that Mr Siminton be imprisoned was set aside. The Full Court, nonetheless, upheld Merkel J's findings that Mr Siminton had been guilty of contempt and substituted a penalty of $50,000: see Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129. 42 Before dealing with the principal issues in dispute I should note that Mr Siminton raised certain preliminary objections to the contempt charges being heard and determined before the principal application had been heard. He did not object to the contempt charges being heard immediately after the hearing of the principal application. As events transpired this is what occurred. There were other preliminary objections which can be grouped under two heads. The first was that, for a variety of reasons, provisions of the Act on which APRA relied in the principal proceeding were "unconstitutional". There was also an objection that the principal proceeding was an abuse of process and that it should permanently be stayed. I rejected these submissions for reasons which I gave when dealing with the principal proceeding: see Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 at [7] to [27]. In any event, these arguments cannot avail Mr Siminton in contempt proceedings. As the Full Court pointed out in Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at 137-8: "An order made by a superior court of record stands and is bound to be observed even though it may ultimately be determined that the order should not have been made or was made without jurisdiction. Whilst the order stands, and it is not set aside, it must be observed and obeyed and any breach or contravention of such an order can give rise to a charge of contempt for failing to comply with it or observe it." 54 This objection must fail. At all relevant times Mr Siminton has been in Australia and subject to the jurisdiction of the Court. That jurisdiction includes power, under s 23 of the Federal Court of Australia Act 1976 (Cth), to make orders of the kind which Gray J made in this proceeding: see Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at 132; Australian Competition and Consumer Commissioner v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576 at 589. There was no jurisdictional obstacle to Mr Siminton being required not to perform certain acts in Australia which might lead to consequential action being taken overseas. In National Australia Bank Ltd v Dessau [1988] VR 521 at 522 Brooking J summarised the applicable legal principles as follows: "That a court of equity, acting as it does in personam, may order someone amenable to its jurisdiction to do or refrain from doing an act abroad was established quite early in our history, before even the days of the Boston Tea Party (Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132). The jurisdiction is grounded not on any pretension to the exercise of judicial power abroad but on the circumstances that the defendant, being amenable to the Court's jurisdiction can be personally directed to act or not to act ..."