Case: Australian Prudential Regulation Authority v Siminton [2006] FCA 326
Outcome: cited
In reasons for judgment delivered in this matter today ([2006] FCA 326) I outlined the nature of the present proceeding and the orders made by Sundberg J, Gray J and myself. It is unnecessary to repeat that outline. 4 The orders made by Sundberg J were superseded by the orders made by Gray J granting interlocutory injunctions: see Australian Prudential Regulation Authority v Siminton [2006] FCA 140. The orders were first challenged by Siminton by his motion of 14 March 2006, which was well after the original orders were spent. The only apparent purpose of that challenge was Siminton's endeavour to have the orders declared to be a nullity so that they could not found the motion of the applicant (APRA) against him for contempt. For the reasons given (at [42]-[53]) of my reasons for judgment handed down today I have concluded that the challenge to the orders made by Sundberg J is to be rejected. The motion to set aside the orders has been brought too late, is misconceived and is without merit. 5 Gray J, after hearing the parties, granted the interlocutory injunctions sought by APRA. His Honour was in no doubt that there was a serious issue to be tried and that the balance of convenience favoured the grant of the injunctive relief sought. Siminton has not adduced evidence of any new facts that have come into existence or been discovered that render the enforcement of the orders unjust: see Phillip Morris at 178. His challenge to the orders appears to be an endeavour to rely on the Court's power to set aside interlocutory orders as a substitute for an appeal. The challenge should be refused as it is a misuse of process and, in any event, is wholly without merit. In particular, I am not satisfied that any proper basis has been demonstrated for interfering with his Honour's orders. 10 Also, in my decision today I have found that Siminton deliberately breached certain orders made by Sundberg J and have adjourned the contempt hearing to enable submissions to be made in relation to penalty which, plainly, can involve the possibility of a term of imprisonment. 11 Finally, Siminton has placed no evidence before the Court as to why the orders made by me might work any injustice or unfairness. Indeed, it appears that independently of my orders, he has no entitlement to his passport. Nonetheless, he claims that the orders 'deprive him of his liberty'. 12 Accepting, as I do, that orders of the kind made by me ought to be made sparingly and only where the special circumstances of the case require the making of such orders, the above matters leave me with little confidence in Siminton. In particular, he has not provided any information or taken any steps to allay the concerns I expressed on 23 December 2005. For the reasons there expressed (save that there may no longer be a difficulty in locating Siminton) this is an exceptional case in which it is in the public interest that the Court ensures that Siminton's presence in Australia is secured to prevent the Court's processes from being frustrated and, in particular, to ensure that any relief to which APRA may become entitled is able to be effective. I would add that the contempt proceeding, with the possibility of a term of imprisonment, is an added reason for not varying the orders I made.