Case: Australian Prudential Regulation Authority v Siminton (No 3) (2006) 230 ALR 528
Outcome: referred to
On 29 December 2005, 4 January 2006 and on 19 January 2006 APRA filed notices of motion and statements of charge seeking orders that Mr Siminton be punished for contempt in respect of nine alleged breaches of the orders made by Sundberg J. On 30 March 2006 Merkel J found six of those charges proven. He described them collectively as "the disposal contempts". In sentencing Mr Siminton for these contempts Merkel J summarised Mr Siminton's conduct as follows: "On the evidence before the court, it is clear that Siminton's disposal contempts were of an extremely serious kind and constituted wilful disobedience and contumacious disregard of the court's orders. The seriousness of the breaches is underlined by the fact that Siminton's conduct was precisely the kind of conduct against which Sundberg J sought to guard by the making of the orders the subject of the contempt charges. The conduct involved the actual transfer of large sums of money ($536,880.18, $38,000, $43,000, $5,000 and $10,000 respectively), and an attempted cash withdrawal from a Bendigo Bank account of $500,000, all of which occurred shortly after Siminton became aware of the Sundberg J orders." See: Australian Prudential Regulation Authority v Siminton (No 3) (2006) 230 ALR 528 at 529. On 10 April 2006 Merkel J ordered that Mr Siminton be imprisoned for a period of 10 weeks in respect of the disposal contempts. 3 Mr Siminton lodged an appeal against the findings and orders made by Merkel J. On 19 July 2006 a Full Court allowed the appeal in part, setting aside the order for imprisonment and imposing, in lieu, a fine of $50,000. Paragraph two of the Full Court's order read: "2. Paragraph 2 of the orders of Merkel J made on 10 April 2006 is set aside and in lieu thereof it is ordered: (a) A fine in the sum of $50,000 be imposed on the appellant in respect of the contempt the subject of charges 1.1 and 1.2 of the statement of charge dated 4 January 2006 and charges 1.1, 1.2, 1.3 and 1.4 of the statement of charge dated 19 January 2006. (b) The fine be paid to the District Registrar within 60 days or such further time and by such instalments as the District Registrar may allow. (c) In the event that there is default in payment of the fine or of any instalment, the District Registrar shall apply to a judge of the Court for direction concerning enforcement." Mr Siminton was present in Court when the order was pronounced. 4 On 18 September 2006, the day which the 60 day period prescribed by Order 2(b) expired, Mr Siminton applied for an extension of time within which to make payment of the $50,000. The application was supported by an affidavit, sworn on 14 September 2006, by the solicitor acting for Mr Siminton. The solicitor deposed: "5. I am advised by my client and verily believe that he is presently unable to pay the said fine. On 10 January 2006 Gray J made an interlocutory order in the principal matter inter alia totally freezing all of my client's funds and assets. As a consequence of the full order of Gray J, which addresses a number of aspects, many hundreds of thousands of dollars have been frozen. As part of the proposed Application to stay and or set aside the principal application, a consequential application will be made to stay and/or set aside the said order of Gray J. In the circumstances, it is respectfully submitted that my client's ability to pay the fine or otherwise should not be determined whilst he is subject to such freezing order and since a challenge is to be mounted as aforesaid to such order that there be a stay for the payment of the fine pending the hearing and determination of such challenge." By order dated 18 September 2006 the District Registrar extended the time for payment to 5:00 pm on 2 October 2006. On that day Mr Siminton's solicitors wrote to the District Registrar seeking a further extension of one month for Mr Siminton to pay the fine. No reason for seeking the extension was given. The application was refused. The fine has not since been paid. 5 On 3 October 2006, in accordance with paragraph 2 (c) of the order of the Full Court, the District Registrar applied for direction concerning enforcement of its order.