Case: Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129
Outcome: referred to
By notice of motion dated 5 November 2007 Mr Siminton moved the Court for orders that: &#8226; $500,000 of the moneys subject to the orders made by Gray J on 10 January 2006, be released to him for the purpose of the payment of his legal expenses including the costs of a proposed appeal; &#8226; The execution of the judgment, insofar as it appointed and empowered a receiver be stayed pending the hearing and determination of a proposed appeal; and &#8226; The order made by the Full Court on 19 July 2006 that Mr Siminton pay a $50,000 fine within 60 days or such further time and by such instalments as the District Registrar might allow be stayed pending the hearing and determination of the proposed appeal: see Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129. 3 I refused the applications for orders that $500,000 be released to Mr Siminton and that there be a stay of the Full Court's order. I adjourned the application for a stay of execution of the orders relating to the appointment of a receiver to 15 November 2007. I indicated that I would publish my reasons for these decisions at a later date. These are those reasons. 4 This proceeding was commenced on 14 December 2005. Since that time Mr Siminton has accumulated unpaid legal fees totalling almost $500,000. He sought release of that amount in order to pay his solicitor and counsel their outstanding fees and to provide funds to support the prosecution of an appeal from my judgment and orders in the principal proceeding. Counsel also submitted that, unless the funds were released, Mr Siminton would be denied natural justice because he might have to prosecute the proposed appeal without legal assistance. Counsel asserted that Mr Siminton had the right to use the funds in the manner proposed. 11 Even if I had the power to grant the stay I would not be disposed, in the exercise of my discretion, to do so. Mr Siminton has been in default of the Full Court's orders since 2 October 2006. No explanation for the delay in making the application has been proffered. More importantly, it is difficult to conceive of what purpose would be served by granting a stay pending the hearing and determination of the foreshadowed appeal from my judgment. Even if a Full Court were to hold that Mr Siminton had not contravened any of the provisions of the Act such a finding would not impinge in anyway on the efficacy of the Full Court's order that Mr Siminton pay a $50,000 fine or the legal consequences of his failure to do so. Mr Siminton appears to continue to labour under the misconception that the contempt for which the fine was imposed can, in some way, be purged or excused by findings that the orders of Sundberg J which Mr Siminton was found to have breached, should not have been made because Mr Siminton had not, in fact, contravened the Act . This misconception was disabused by the Full Court over a year ago: see Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at 137-8. It may be that the stay is sought on the assumption that, if he is successful in persuading the Full Court that he has not contravened the Act , the money will immediately become available to him to use as he wishes, including paying the fine. Such an assumption would be misplaced. Deposits were made on terms which required that they would be invested so as to yield interest at promised rates. They were not invested so that they could be used by Mr Siminton for his own purposes. Mr Siminton's fiduciary obligations to depositors may well prevent him from drawing on depositor's funds to pay the fine. Any stay would, therefore, be of doubtful utility. 12 For these reasons the application for a stay of the Full Court's order was refused. 13 Although, in the judgment which I handed down on 26 October 2007, I had foreshadowed making orders in relation to the appointment and duties of a receiver, the orders were not made until 7 November 2007. Mr Siminton's notice of motion was filed on 5 November 2007. The application for a stay of my orders was therefore made in anticipation of those orders being made but at a time when Mr Siminton was unaware of the terms of those orders. He had not, therefore, had the opportunity of framing a notice of appeal, even in draft form.