Case: Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608
Outcome: referred to
In paras 80 to 93 of its written submissions, APRA set out the matters it says are established by the evidence in respect of Charge 1.6: "80. The Applicant alleges that Mr Siminton used a Visa credit card issued to Karen M Holzheimer to make purchases totalling $2,887.27 using monies in the Visa Account standing to the credit of Dale and Karen Holzheimer, as his nominees. 81. The total sum of $2,887.27 was spent in 31 separate credit card transactions (in the form of purchases) between 2 May 2006 and 16 August 2006. 82. Each of the 31 transactions is recorded in the relevant monthly statements for the Visa Account as follows (the Visa Account statement reference is to the corresponding entry in the Visa Account annexed to the statement of Heather Joy Goodliffe dated 14 December 2006): Transaction number Transaction Amount Transaction date Visa Account statement reference 1 $45.20 6 May 2006 HJG(9): page 72 2 $218.40 21 May 2006 HJG(9): page 73 3 $172.90 4 June 2006 HJG(9): page 77 4 $131.60 6 June 2006 HJG(9): page 77 5 $155.78 9 June 2006 HJG(9): page 77 6 $16.80 11 June 2006 HJG(9): page 77 7 $128.05 24 June 2006 HJG(9): page 78) 8 $74.00 24 June 2006 HJG(9): page 78 9 $29.85 28 June 2006 HJG(9): page 78 10 $121.50 28 June 2006 HJG(9): page 78 11 $132.79 30 June 2006 HJG(9): page 81 12 $96.00 1 July 2006 HJG(9): page 81 13 $29.85 5 July 2006 HJG(9): page 81 14 $127.65 7 July 2006 HJG(9): page 82 15 $65.00 8 July 2006 HJG(9): page 82 16 $130.45 9 July 2006 HJG(9): page 82 17 $85.60 11 July 2006 HJG(9): page 82 18 $41.00 11 July 2006 HJG(9): page 82 19 $51.00 12 July 2006 HJG(9): page 82 20 $121.59 14 July 2006 HJG(9): page 82 21 $140.37 20 July 2006 HJG(9): page 82 22 $77.50 26 July 2006 HJG(9): page 82 23 $46.60 27 July 2006 HJG(9): page 83 24 $55.00 27 July 2006 HJG(9): page 83 25 $143.18 29 July 2006 HJG(9): page 85 31 $74.60 6 August 2006 HJG(9): page 85 83. On 11 April 2006, prior to 31 transactions listed in paragraph 86 being made, Karen Holzheimer reported to the Adelaide Bank that her Visa credit card attached to the Visa Account as (sic) lost. [I interpolate at this point that 11 April 2006 was the day after Merkel J sentenced Mr Siminton for having breached orders made by Sundberg J] 84. A replacement Visa credit card, number 4564 3679 0031 1427, was issued to Karen Holzheimer on 11 April 2006 and sent to her in Queensland by registered post on 12 April 2006. 85. Each of the 31 transactions listed in paragraph 82 above was made using Visa card number 4564 3679 0031 1427 issued to Karen Holzheimer on 11 April 2006. 86. At no stage after 11 April 2006 did Dale Holzheimer or Karen Holzheimer report either that their: 86.1 credit cards attached to the Visa Account had been lost; 86.2 credit cards attached to the Visa Account had been misused; or 86.3 Visa Account had been incorrectly billed. 87. The Adelaide Bank froze the Visa Account on 15 September 2006 in order to protect its interests and to ensure that the cards attached to the Visa Account were not being misused. 88. Karen Holzheimer made no complaint to the Adelaide Bank that the Visa Account had been frozen she merely requested that the fact be confirmed in writing. 89. The Applicant has obtained the credit card vouchers for each of the 31 transactions listed in paragraph 82. The credit card vouchers are the slips presented by a merchant to a customer to sign in order to authorise a transaction. In most cases the date of an actual transaction on a credit card voucher will be earlier than the date recorded on the credit card statement due to processing delays. 90. The individual credit card vouchers for the 31 transactions are annexed to the affidavits of Heather Joy Goodliffe dated 14 December 2006 (reference HJG(X) and Angelo Fonti dated 14 December 2006 (reference AF-X) as follows: Transaction number Transaction Amount Transaction date Visa Account statement reference Credit card voucher reference 1 $45.20 6 May 2006 HJG(9): page 72 AF-7 2 $218.40 21 May 2006 HJG(9): page 73 AF-13 3 $172.90 4 June 20066 HJG(9): page 77 AF-13 4 $131.60 6 June 2006 HJG(9): page 77 AF-8 5 $155.78 9 June 2006 HJG(9): page 77 AF-4 6 $16.80 11 June 2006 HJG(9): page 77 AF-7 7 $128.05 24 June 2006 HJG(9): page 78) AF-4 8 $74.00 24 June 2006 HJG(9): page 78 AF-8 9 $29.85 28 June 2006 HJG(9): page 78 HJG(10) page 10 10 $121.50 28 June 2006 HJG(9): page 78 AF-13 11 $132.79 30 June 2006 HJG(9): page 81 AF-4 12 $96.00 1 July 2006 HJG(9): page 81 AF-8 13 $29.85 5 July 2006 HJG(9): page 81 AF-12 14 $127.65 7 July 2006 HJG(9): page 8 AF-5 15 $65.00 8 July 2006 HJG(9): page 82 AF-10 16 $130.45 9 July 2006 HJG(9): page 82 HJG(10) page 3 17 $85.60 11 July 2006 HJG(9): page 82 AF-10 18 $41.00 11 July 2006 HJG(9): page 82 AF-8 19 $51.00 12 July 2006 HJG(9): page 82 HJG(10) page 5 20 $121.59 14 July 2006 HJG(9): page 82 AF-5 21 $140.37 20 July 2006 HJG(9): page 82 AF-5 22 $77.50 26 July 2006 HJG(9): page 82 HJG(1) page 6 23 $46.60 27 July 2006 HJG(9): page 83 AF-10 24 $55.00 27 July 2006 HJG(9): page 83 AF-6 25 $143.18 29 July 2006 HJG(9): page 85 HJG(10) 26 $90.00 29 July 2006 HJG(9): page 85 AF-8 27 $21.80 30 July 2006 HJG(9): page 85 HJG(10) page 8 28 $74.60 1 August 2006 HJG(9): page 85 AF-10 29 $56.00 2 August 2006 HJG(9): page 85 HJG(10) page 9 30 $132.61 4 August 2006 HJG(9): page 85 AF-5 31 $74.60 6 August 2006 HJG(9): page 85 AF-10 91. The Applicant has had the signatures on each of the credit card vouchers for the 31 transactions listed in paragraph 90 above compared to the signature of Mr Siminton by a handwriting expert. 92. The handwriting expert has expressed the opinion that the signatures on the credit card vouchers for the 31 transactions listed in paragraph 90 above are those of Mr Siminton. [I interpolate at this point that the credit card vouchers were not signed "D or K Holzheimer" but appear to bear Mr Siminton's own signature. The card was used at restaurants to purchase food and beverages and at shops.] 93. Further, there are other transactions in the period 2 May to 16 August which, although not the subject of contempt charges, appear specifically to relate to Mr Siminton. APRA submits the Court can use this additional evidence to assist it in drawing the inference that the Visa account was being used by Mr Siminton as principal, for his own purposes, and that the use of an account and card in Karen Holzheimer's name was nothing more than an attempt to disguise the fact that Mr Siminton was accessing funds in breach of the Orders. Examples of this additional evidence are: Transaction date Amount Payee Visa Account statement reference Connection to Respondent 3 May 2006 $2000 Erhardt and Associates HJG(9): 71 Respondent's solicitors 7 May 2006 $1500 Erhardt and Associates HJG(9): 72 Respondent's solicitors 23 May 2005 $3000 Erhardt and Associates HJG(9): 73 Respondent's solicitors 24 May 2006 $2000 Erhardt and Associates HJG(9): 73 Respondent's solicitors 24 May 2006 $3000 David Sharp HJG(9): 73 Respondent's Counsel 5 June 2006 $1000 Erhardt and Associates HJG(9): 77 Respondent's solicitors 5 June 2006 $4000 David Sharp HJG(9): 77 Respondent's Counsel 6 July 2006 $1000 Erhardt and Associates HJG(9): 82 Respondent's solicitors 16 August 2006 $2000 Erhardt and Associates HJG(9): 86 Respondent's solicitors Charge 1.7 24 Charge 1.7 reads: "Alternatively to paragraph 1.6 hereof, between 2 May 2006 and 16 August 2006 ... the Respondent disposed of, alternatively dealt with, monies totalling $14,504.80 standing to the credit of Dale and Karen Holzheimer in the Visa Account, as nominees of the Respondent, by expending and/or withdrawing a total of $14,504.80 in a series of individual transactions through the Visa Account." 25 In paras 94 to 96 of its written submissions, APRA set out the matters it says are established by the evidence in respect of Charge 1.7: "94. Alternatively to Charge 1.6, the Applicant alleges that between 2 May 2006 and 16 August 2006, Mr Siminton disposed of, alternatively dealt with, monies totalling $14,504.80 standing to the credit of Dale and Karen Holzheimer in the Visa Account, as nominees of Mr Siminton, by expending and/or withdrawing a total of $14,504.80 in a series of individual transactions through the Visa Account. 95. Between 2 May 2006 and 16 August 2006 Mr Siminton deposited $14,504.80 into the Visa Account. However, at 16 August 2006 the Visa Card was in debit of $2463.73. 96. As a result, the sum of $14,504.80 was disposed of, alternatively dealt with by expending and/or withdrawing a total of $14,504.80 in a series of individual transactions through the Visa Account. The evidence demonstrates, alternatively supports the inference, that only Mr Siminton was using the card and account at this time." Charge 1.8 26 Charge 1.8 reads: "Further to paragraphs 1.6 and 1.7 hereof, between 2 May 2006 and 16 August 2006, ... the Respondent disposed of, alternatively dealt with, monies totalling $14,504.80 standing to the credit of Dale and Karen Holzheimer in the Visa Account, as nominees of the Respondent, by making the sum of $14,504.80 available for expenditure, and/or withdrawal through the Visa Account." 27 In paras 97 to 99 of its written submissions, APRA set out the matters it says are established by the evidence in respect of Charge 1.8: "97. Further to Charges 1.6 and 1.7, the Applicant alleges that between 2 May 2006 and 16 August 2006, Mr Siminton disposed of, alternatively dealt with, monies totalling $14,504.80 standing to the credit of Dale and Karen Holzheimer in the Visa Account, as nominees of Mr Siminton, by making the sum of $14,504.80 available for expenditure, and/or withdrawal through the Visa Account. 98. Between 2 May 2006 and 16 August 2006 Mr Siminton deposited $14,504.80 into the Visa Account. However, at 16 August 2006 the Visa Card was in debit of $2463.73. 99. As a result, the sum of $14,504.80 was disposed of, alternatively dealt with by making the sum of $14,504.80 available for expenditure, and/or withdrawal through the Visa Account. The evidence demonstrates, alternatively supports the inference, that only Mr Siminton was using the card and account at this time." Charge 1.9 28 Charge 1.9 reads: "On 16 August 2006, ... the Respondent, by himself or by his servants or agents, dealt with monies standing to his credit in the Anglo Irish Bank (Austria) AG by giving instructions for the electronic transfer of the sum of $24,981 out of an account in his name with the Anglo Irish Bank (Austria) AG and the deposit of that amount into the Visa Account." 29 In paras 100 to 106 of its written submissions, APRA set out the matters it says are established by the evidence in respect of Charge 1.9: "100. On 16 August 2006, Mr Siminton effected or gave instructions in relation to the transfer of $25,000 to the Visa Account from an account controlled by him at the Anglo-Irish Bank in Austria. 101. The total sum of $24,981 ($25,000 minus bank fees) was transferred by SWIFT electronic transfer into the Visa Account on 16 August 2006 in a lump sum. 102. SWIFT is in (sic) acronym for Society of Worldwide International Financial Telecommunications a group which allows customers to transfer money electronically between banks around the world. 103. The SWIFT record held by the Adelaide Bank for the deposit of $24,981 into the Visa Account on 16 August 2006 shows that the: 103.1 $24,981 originated in an account name in the name of Mr Siminton; and 103.2 his account was held at the Anglo-Irish Bank in Austria. 104. APRA submits that the transfer of $24,981 from the Anglo-Irish Bank account to the Visa Account was deliberate. The account at the Anglo-Irish Bank is in Mr Siminton's name. Mr Siminton has previously used the Anglo-Irish Bank account to pay for investments in Australia. 105. Further, APRA submits the Court can infer that Mr Siminton, or a person acting on Mr Siminton's instructions, made the transfer. The evidence discloses that he was the person who had authority to operate that account. 106. The conclusion that Mr Siminton deliberately effected, or gave instructions in relation to the transfer of $24,981 from the Anglo-Irish Bank to the Visa Account is the only rational inference to be drawn from the evidence. Any alternative hypothesis could not be regarded as reasonable in the absence of evidence to support that hypothesis when that evidence, if it exists at all, must be within the knowledge of Mr Siminton." Charge 1.10 30 Charge 1.10 reads: "Between 16 August 2006 and 28 September 2006 ... the Respondent disposed of, alternatively dealt with, monies totalling $507.42 standing to the credit of Dale and Karen Holzheimer in the Visa Account, as nominees of the Respondent, by expending the following sums: i. $169.90 on 16 August 2006; ii. $38.00 on 27 August 2006; iii. $172.50 on 27 August 2006; and iv. $127.02 on 8 September 2006." 31 In paras 107 to 114 of its written submissions, APRA set out the matters it says are established by the evidence in respect of Charge 1.10: "107. The Applicant alleges that Mr Siminton used a Visa credit card issued to Karen M Holzheimer to make purchases totalling $507.42 using monies standing to the credit of Dale and Karen Holzheimer in the Visa Account, as nominees of Mr Siminton, 108 The total sum of $507.42 was spent in 4 separate credit card transactions (in the form of purchases) between 16 August 2006 and 28 September 2006. 109 Each of the 4 transactions is recorded in the relevant monthly statements for the Visa Account as follows (the Visa account statement references is to the corresponding entry in the Visa card statements annexed to the statement of Heather Joy Goodliffe dated 14 December 2006): Transaction number Transaction Amount Transaction date Visa Account statement reference 1 $169.90 16 August 2006 HJG(9): page 86 2 $38.00 27 August 2006 HJG(9): page 87 3 $172.50 27 August 2006 HJG(9): page 87 4 $127.02 8 September 2006 HJG(9): page 90 110. The Applicant has obtained the credit card vouchers for each of the 4 transactions listed in paragraph 109. 111. The individual credit card vouchers for the 4 transactions are annexed to the affidavit of Angelo Fonti dated 14 December 2006 (reference AF-X) as follows: Transaction date Transaction amount Transaction date Visa Account statement reference Credit card voucher reference 1 $169.90 16 August 2006 HJG(9): page 86 AF-13 2 $38.00 27 August 2006 HJG(9): page 87 AF-7 3 $172.50 27 August 2006 HJG(9): page 90 AF-13 4 $127.02 8 September 2006 HJG(9): page 90 AF-3 112. The Applicant has had the signatures on each of the credit card vouchers for the 4 transactions listed in paragraph 111 above compared to the signature of Mr Siminton by a handwriting expert. 113. The handwriting expert has expressed the opinion that the signatures on the credit card vouchers for the 4 transactions listed in paragraph 111 above is that of Mr Siminton. 114. Further, Mr Siminton was recorded by security camera conducting Transaction 4 listed in paragraph 111 above. 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."