Siminton v Australian Prudential Regulation Authority [2008] HCATrans 257 (2 July 2008)

Last Updated: 3 July 2008

[2008] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M45 of 2008

B e t w e e n -

DAVID ROBERT SIMINTON

Applicant

and

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

Respondent

Bail application

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON WEDNESDAY, 2 JULY 2008, AT 9.34 AM

Copyright in the High Court of Australia

MR D.B. SHARP: I appear for the plaintiff/applicant for bail, your Honour. (instructed by Erhardt & Associates)

MS D.S. MORTIMER, SC: If your Honour pleases, I appear with my learned friend, MR S.J. HIBBLE, for the respondent. (instructed by Australian Prudential Regulation Authority – Melbourne)

HIS HONOUR: Now, Mr Sharp, let us get clear the documents upon which you are relying in support of this application. There are a couple of affidavits, I think.

MR SHARP: Yes, there are, your Honour, with one exhibit to one of the affidavits.

HIS HONOUR: Would you just identify the affidavits that you will be reading in the application?

MR SHARP: The first affidavit I will be relying on, your Honour, is an affidavit of 25 June this year.

HIS HONOUR: That is the affidavit of Hardy Steffen Erhardt, legal practitioner?

MR SHARP: Yes, your Honour. I would seek to read that.

HIS HONOUR: Is there any objection to the reading of that affidavit, or to any of the exhibits referred to in it, Ms Mortimer?

MS MORTIMER: No, your Honour.

HIS HONOUR: Very well. I read an affidavit of Hardy Steffen Erhardt, legal practitioner, sworn 25 June 2008. Yes.

MR SHARP: Does your Honour desire me to read through that, or - - -

HIS HONOUR: No, you do not have to read it. I have already read it.

MR SHARP: If the Court pleases.

HIS HONOUR: There is another affidavit, I think, of the 26th.

MR SHARP: There is a further affidavit and that is an affidavit of 26 June, your Honour, the following day, which is - - -

HIS HONOUR: That is also an affidavit of Hardy Steffen Erhardt?

MR SHARP: Indeed, to which is attached one exhibit.

HIS HONOUR: Yes.

MR SHARP: Is there any objection to the reading of this affidavit, Ms Mortimer?

MS MORTIMER: No, there is not, your Honour.

HIS HONOUR: Yes, very well. I read an affidavit of Hardy Steffen Erhardt, legal practitioner, sworn 26 June 2008. Is there any other affidavit or any other material that you are seeking to place before the Court?

MR SHARP: No, there is not, your Honour. It may be appropriate to mention that I believe my learned friend will be seeking to rely on an affidavit. It may be premature, but I would be indicating that I would be opposing that affidavit, but those are the only two affidavits that I will be seeking to rely on.

HIS HONOUR: Very well. Now, I think you do have an affidavit, is that correct, Ms Mortimer, in your case?

MS MORTIMER: Yes, we do, your Honour.

HIS HONOUR: Identify that, please.

MS MORTIMER: We seek to read the affidavit of Meenaambikai Vannitamby sworn 1 July 2008. Your Honour, that has five exhibits.

HIS HONOUR: Yes. Is there any objection to the reading of that affidavit, Mr Sharp?

MR SHARP: Yes, there is, your Honour.

HIS HONOUR: What is the basis of the objection?

MR SHARP: It refers – first of all, the first eight paragraphs are non-contentious, but paragraph 9 attempts, we submit, to introduce material that was neither before the Full Court nor argued in passing. It purports to introduce various pages, selected pages, from the transcript of the hearing before his Honour Justice Tracey, whom I will refer to as the trial judge. The transcript was available to my learned friends at the hearing before the Full Court. They chose not to insert it into the appeal book. It was never before the court, it was never before the Full Court, and the arguments which are sought to be raised by reference to it were never put to the Full
Court. We therefore submit it is, in effect, an attempt to introduce new evidence at this stage, which we say is inadmissible.

HIS HONOUR: The matter before me is an entirely separate proceeding. We are not yet embarked on the appellate jurisdiction of the High Court. We are dealing with an application which is anterior to that, and interlocutory to it, and which raises a question as to whether the extraordinary jurisdiction of the Court to grant bail should be exercised. If this material is relevant, why would it not be received?

MR SHARP: We submit it is not relevant, your Honour.

HIS HONOUR: It may not be receivable in the appeal itself, but that is a different matter. The question is does it touch upon the exercise of the extraordinary jurisdiction to grant bail, which is a separate issue?

MR SHARP: We say no, your Honour. We say it does not. It has nothing to do with the bail application.

HIS HONOUR: Ms Mortimer, I am not going to be sitting here dealing with the application for special leave and I am not going to be going over all the nooks and crannies of this litigation. I have to keep my eye fixed very clearly on the extraordinary jurisdiction which is being invoked. Do you really need paragraphs 9 and 10 of the affidavit?

MS MORTIMER: Yes, your Honour, we do. We need them to make a short point, and it is this. One of the grounds of special leave is an attack on what is said to be an error by the trial judge in refusing to admit the transcript of proceedings before Justice Gray.

HIS HONOUR: Yes, I have seen that.

MS MORTIMER: Now, that is what was argued in the Full Court and, in order for your Honour to consider whether it is appropriate to exercise the jurisdiction your Honour has to grant bail, one of the matters that your Honour must consider is the strength of the arguments on special leave. Our point in relation to the transcript, your Honour, is – and it is one that I frankly concede we did not put to the Full Court because it was overlooked – that my learned friend objected, himself, to the transcript being tendered and expressly told the trial judge he did not seek to rely on it. Now, how he can now stand here and say to this Court that the trial judge made an error in refusing to admit it for a purpose for which he never sought to tender it, makes that ground, in our submission, beyond argument.

HIS HONOUR: Would this material be admissible in opposition to a grant of special leave on that point?

MS MORTIMER: Yes, your Honour, in our submission.

HIS HONOUR: As I understand the principle, the special leave hearing is anterior, under the Court’s doctrine, to the commencement of the exercise of the appellate jurisdiction and, therefore, does not fall under the prohibition that is expressed in Mickelberg v The Queen and Eastman v The Queen, that new evidence cannot be received in the appellate jurisdiction.

MS MORTIMER: That is our submission, your Honour, and, as your Honour well understands and knows, in the hearing of the special leave application, in order to persuade the Court about why special leave ought to be granted or special leave ought to be refused, this Court recognises an ability in applicants and respondents to put in material by way of affidavit that was not before the intermediate appellate court.

HIS HONOUR: Is there a problem with the transcript that it does not reveal what you say actually transpired in the trial court before Justice Tracey?

MS MORTIMER: Your Honour, it reveals it expressly in terms. That is my point. My point is that it is out of my learned friend’s mouth on the transcript that he says he does not press the tender of the transcript of the proceedings before Justice Gray in order to prove the meaning of the orders, or as an incident of construing the orders. He says that expressly.

HIS HONOUR: Yes, all right. Thank you. What do you say in reply, Mr Sharp.

MR SHARP: A complete distortion of the facts, your Honour, complete selective tendering of extracts which completely distort what happened before his Honour Justice Tracey. Now, I do not want to have to go through - - -

HIS HONOUR: Is it before Justice Tracey or before Justice Gray?

MR SHARP: No, before Justice Tracey, your Honour.

HIS HONOUR: Yes. Paragraph 9 refers to the hearing of the matter at first instance before Justice Tracey and the issue was the transcript of the interlocutory hearing before Justice Gray.

MR SHARP: Yes, that is correct.

HIS HONOUR: So what is the objection to – if this material is arguably admissible on the application for a grant of special leave and if, as I understand it, it is the intention of the respondent to seek to put that before the special leave panel of the Court, why would I not today, in considering whether to exercise the extraordinary jurisdiction to grant bail, not have to take into account matters that might be considered by the special leave panel?

MR SHARP: Your Honour, if your Honour takes the view that the application for special leave material should be opened up, we will do so. I understood your Honour to say initially that that was not to be the case. What we say, and I note that this was served this morning on myself - - -

HIS HONOUR: Does that catch you by surprise? Do you want to have an adjournment of the proceedings?

MR SHARP: No, your Honour. We want to – if your Honour wishes to argue the matter we will have to go through it in some detail. If your Honour wishes to entertain the application to introduce material which was foreshadowed in the grounds of appeal, this very point was placed before the Full Court. My learned friend’s explanation that it was overlooked is, we say, difficult to accept because my learned friend – the argument was argued - in one sense the question as to when the transcript was tendered was actually referred to before their Honours and there was some dispute about when the transcript was offered in tendering. So for my learned friend to now say that in some way it was not produced to the Court and proffered by way of tender is completely contrary to what my learned friend was arguing before the Full Court.

HIS HONOUR: Now, what I am going to do, Mr Sharp, because you would understand that in a special leave application the whole matter is over within less than an hour - - -

MR SHARP: I understand that, your Honour.

HIS HONOUR: I do not think this application, important though it is to your client’s liberty, should extend to an extent that ignores the reality that ultimately the issue of the special leave is going to have to be considered and in a relatively short compass of time. What I intend to do is to note your objection to paragraphs 9 and 10 of the affidavit of Ms Vannitamby and I will admit it subject to it being shown to be relevant later in the proceedings when I have a better understanding of what the proceedings are and at that stage where, if necessary, I will rule on the matter.

It does not appear to me that this application today is going to turn on the matters in that paragraph because the judgment of whether there is a reasonable prospect of your gaining special leave is in part an intuitive one, depending on all of the facts and in that consideration I would have thought paragraphs 9 and 10 are not going to loom large. However, I will note your objection. I will admit the paragraphs at this stage, subject to relevance, and you can renew the application for the rejection later if need be.

MR SHARP: If your Honour pleases.

HIS HONOUR: Now, do you have any objection otherwise to the reading of that affidavit of Ms Vannitamby?

MR SHARP: No, your Honour. What I say is the attempt to introduce material which was not - - -

HIS HONOUR: Yes, I understand what you have said.

MR SHARP: That is the objection.

HIS HONOUR: But I read the affidavit of Meenaambikai Vannitamby, legal practitioner, sworn 1 July 2008. Is there any other affidavit that you wish the Court to read, Ms Mortimer?

MS MORTIMER: No, your Honour.

HIS HONOUR: Do you wish to cross-examine the solicitor, Mr Erhardt?

MS MORTIMER: No, your Honour.

HIS HONOUR: Do you wish to cross-examine Ms Vannitamby, Mr Sharp?

MR SHARP: No, your Honour.

HIS HONOUR: Very well. Is that the entirety of the evidence that is before the Court?

MR SHARP: As far as we are aware, your Honour, yes.

HIS HONOUR: Very well.

MS MORTIMER: Yes, it is, your Honour.

HIS HONOUR: Thank you. Well, what do you say, Mr Sharp?

MR SHARP: Your Honour, I might note that we have received – and I say literally I received it approximately 10 minutes ago - it was sent to my chambers this morning by facsimile - a set of submissions which I have not had the opportunity - - -

HIS HONOUR: I received it not much longer than 10 minutes ago, but I have had a look at it. I received it about half an hour ago. Do you have any written submissions on behalf of your client?

MR SHARP: No, we do not, your Honour.

HIS HONOUR: It is common in this Court, given the pressure that is on the Justices, to provide short written submissions before the hearing, even without directions, but - - -

MR SHARP: I understand that, your Honour. The compass of what we were proposing to put is relatively short.

HIS HONOUR: Yes.

MR SHARP: And I believe that, with all due respect to written submissions, the strength and attractiveness of an oral submission is that it does have immediate effect and can be immediately addressed, your Honour. I appreciate the strength of what your Honour says, but all I can say is no, we have no written submissions but the points I would seek to make are quite short.

HIS HONOUR: Yes, very well. You make those points and then I will ask Ms Mortimer to take me through the written submissions, so many as are relevant after we have heard what you have to say orally.

MR SHARP: Very well, your Honour.

HIS HONOUR: Bear in mind that I sat through the Cabal bail application and I have read the reasons of the Full Court in the Cabal decision and I am very conscious of the view which was expressed by the Full Court in that matter. Liberty is very precious and important, but so is the rule of law, and I have to conform to the approach that is expressed by the Full Court in Cabal v United Mexican States.

MR SHARP: I understand that, your Honour. The first point that I would seek to make is that we are dealing here with a matter of contempt. We are not dealing with crime. We are not dealing with immigration. So the fact of the matter is that contempt is sui generis. It is a unique jurisdiction. Just by way of highlighting that or exemplifying that, the Canadian law has been codified with, as I understand it, one exception, and that is the law of contempt. Contempt is a matter peculiarly within the ambit and control of the courts and it is on that basis that much of what is said with respect to other jurisdictions in regard to bail applications has no direct relevance with respect to contempt.

HIS HONOUR: Yes, we have a matter that stands for judgment which concerned arguments about the nature of contempt, whether it was truly and universally criminal in nature or not – Street v Hearne is the case – so I have that principle in my mind and I am aware that contempt has a lot of peculiarities.

MR SHARP: In particular, your Honour, I would rely on this, that many of the reasons which are often advanced for not granting bail in appellate courts, and particularly in this Court, is that it is important that the findings of fact, which more often than not when somebody is in custody have been the findings of a jury, should not be seen to be readily disturbed by a court acting as a matter of law and disturbing the ultimate decider of the matter, the jury.

In this type of proceeding the court is the be-all and end-all of contempt proceedings. In other words, it is a matter which originates from the court, is dealt with by the court, so that the question of disturbing the findings of fact by the jury and the undesirability of this occurring is not a relevant factor. It is the court which has control of this matter. It is the court that brought Mr Siminton before it. It is the court that has dealt with him and it is the court’s judgment on this matter which is to be decided by the court, and by that I mean the court system, the series of courts to which Mr Siminton has progressed to this stage.

HIS HONOUR: Can I ask you a practical question which has been curious for me? Even last week the Court – a leave panel was gathered to hear an application for leave from an order of Justice Crennan, and the order which is the subject of the special leave application was made, I think, on 5 June. Why did it take until 25 June to file the application for special leave to appeal, which is the foundation of any grant of bail in this case? Why was there not a motion to have that application expedited and heard out of time as, for example, was done last week in the challenge to the payment towards the World Youth Day in Sydney. I mean, this Court can bring matters on quickly if need be.

MR SHARP: We have endeavoured to put the best possible case forward in this matter. We have laboured throughout the proceedings, your Honour, as by way of explanation, on a lack of funding for the matter. The original order, two and a half years ago, completely deprived Mr Siminton of the use of his funding. The very matters that have brought him to this situation have been the use of funds which are said to have been in breach of this order. We were desirous of obtaining the transcript, and we had no funds in which to do so. In order to prepare the best possible case, it was decided that rather than try and proceed without the material and without being in a position to put the best argument by considering the matter thoroughly, we should prepare the matter before we attempted to proceed further.

It is that reason, your Honour, that we have now obtained funds from supporters which have enabled, quite recently – I cannot give your Honour the precise date – but only recently to obtain the transcript which would enable us to finalise what we consider to be the best possible arguments put before the court to discard some that had been previously aired and to focus instead on those arguments which were, in our view, best able to - - -

HIS HONOUR: Very well, thank you. As I understand it, the first day that a special leave application could now be listed, having regard to the intervening mid-year recess, is 8 August. Is that correct? Is that your understanding?

MR SHARP: We were told some time in August, yes. We do not know the precise date and the Court staff were unable to be more precise, but they told us that yes, the earliest possible time would be some time in August.

HIS HONOUR: Yes. My understanding from the Deputy Registrar is that it is 1 August.

MR SHARP: Yes. That was an indication that was given that it would be no earlier than 1 August.

HIS HONOUR: Yes.

MR SHARP: Insofar as – the best that they could hope for, the best that we could - - -

HIS HONOUR: If your application for bail is not successful, and I have not formed any view on that matter, my intention would be to expedite the hearing of the special leave application and to return it before the Court on 1 August.

MR SHARP: That would mean another month in very rough terms, your Honour. He has already served a month of a 12-month sentence.

HIS HONOUR: Yes, I understand that. But the point is made in the respondent’s submissions that, unlike earlier cases where there was either unlimited imprisonment, as in Cabal, or imprisonment for but six months, as in Pelechowski, in your client’s case there would remain 10 months of imprisonment and that, therefore, the grant of bail is not necessary as such to preserve the utility of the case and that utility is not lost by refusal of bail.

MR SHARP: Not total utility. I accept what your Honour says, that your Honour would ensure that the matter was dealt with early in August. Accepting that and that there was therefore a reasonable – we can say with reasonable confidence that it will be two months, that nonetheless, two months gaol is, where a case can be made, as I hope briefly shortly to be able to put to your Honour, that two months gaol should not be served if, in fact, such period of time, such loss of liberty is unjustified. I would be seeking briefly to - - -

HIS HONOUR: That is quite right.

MR SHARP: Very well, your Honour. I will not belabour your Honour further with that point which we submit is of course fundamentally important. The point to note in Pelechowski’s Case, which was, of course, a contempt matter, is of course that bail was granted and we say that the - - -

HIS HONOUR: I think Mr Pelechowski had already served two or three months at the time of the grant of bail, and the sentence was six months. Is that correct?

MR SHARP: Yes, I think that is correct, your Honour.

HIS HONOUR: So that there was a greater sense of futility of the process in the High Court if he had been refused bail, although in every case it is simply a matter of looking at the particular facts of the case.

MR SHARP: That was one of the aspects, your Honour. Even if the matter had been dealt with promptly it would have been significant. But first of all, I would say that the proportionality approach is not appropriate when one is talking about liberty. It is the absolute time that one should look at, rather than saying a year. It is only one-sixth. With six months it would be one-third and so forth. What one should consider is the amount of time in absolute terms, rather than contemplate it as some form of proportionality approach.

I would begin by stressing, perhaps, what is the obvious, but nonetheless I would seek to do so and that is to say that it is a paramount duty of any court to ensure that justice is done and is seen to be done. This is a matter in which that paramount duty, we submit, is of importance and it is worth making that point as an opening point.

The paramount duty of a court to do justice is within the discretion of the court when deciding whether or not to grant bail. This is a discretionary matter. It is a matter purely within the ambit of the court and, therefore, it is a matter that should not let arbitrary rules, which can only be that, guidelines to be adopted. They must give way ultimately to the primary duty of any court which is to ensure that justice is done and is seen to be done.

Having said that, your Honour, we say that this is a case in which, on at least one and probably two grounds, justice requires that bail, with respect, should be available and be granted because it is manifest, we say, on the documents themselves that justice requires that bail be granted. The point that we would say that brings this duty to the fore, and which we say is manifest, is the ruling which, with respect to the members of the Full Court, with greatest respect, it cannot be so.

The members of the Full Court have placed a meaning on the term of the order. For reasons which are manifest from the order itself, it cannot be said that the plain meaning of the order is as contended by the respondent. It cannot be said, reading the order, given the meaning of the words used, the grammar and the syntax, it is not possible – and I stress with the greatest respect to their Honours – to find that it is plain that it applies to future moneys in future accounts.

If that is confusing to your Honour without further explanation then I will briefly explain what the matter was about and why these words are relevant and what the relevant two meanings contended for were. It was contended by the plaintiff in these proceedings that the meaning of the words “the moneys standing in the account” – and perhaps I should take your Honour to the order of Justice Gray so that it is before you.

HIS HONOUR: Yes, where do I find that?

MR SHARP: Your Honour should have that as part of a bundle of documents which were served with the application for special leave. My learned friend points out that it is also within one of the exhibits to the affidavit of Ms Vannitamby.

HIS HONOUR: Is that an exhibit to the affidavit of Mr Erhardt?

MR SHARP: No, Ms Vannitamby, your Honour.

HIS HONOUR: I see. Thank you.

MR SHARP: I am told by my learned friend it is MV3.

HIS HONOUR: The first exhibit is the reasons for judgment of Justice Tracey, whereas logically this order of Justice Gray would precede that.

MR SHARP: Yes, it is at page 4 of his Honour’s reasons for judgment, paragraph 15.

HIS HONOUR: Page 4 of Justice Tracey’s reasons?

MR SHARP: But as I say it should also have been before your Honour by way of a document tendered.

HIS HONOUR: You have to help me now, Mr Sharp. Where in Justice Tracey’s reasons is the order of Justice Gray?

MR SHARP: Page 4 of the reasons for judgment.

HIS HONOUR: Are we talking about the same reasons? I have a lot of papers here now. This has had a long history.

MR SHARP: This is the affidavit of - - -

HIS HONOUR: I have the reasons of Justice Tracey of 7 November 2007 and page 4 does not contain an order of Justice Gray.

MS MORTIMER: Your Honour, may I explain it because it is our affidavit. MV3 in Ms Vannitamby’s affidavit is the reasons for judgment of the Full Court on the contempt appeal and in paragraph 16 of those reasons for judgment, the terms of the order made by Justice Gray are reproduced. So, paragraph 16 of exhibit MV3, your Honour.

HIS HONOUR: I have that, that is correct, and I have Justice Gray’s order in that form. Are you content that I look at that as the order of Justice Gray, Mr Sharp?

MR SHARP: Yes, I am, your Honour.

HIS HONOUR: Yes, very well. I have that now.

MR SHARP: As far as I am aware it reproduces it for my purposes. One begins with the beginning of paragraph 1, your Honour, and then goes to 1(e) – 1(e) was the relevant order which is alleged to have been breached.

HIS HONOUR: Yes.

MR SHARP: I will read it:

Until the hearing and determination of this proceeding or further order, the respondent, whether by himself, his servants or agents or otherwise be restrained from:

. . .

(e) dealing with, withdrawing or disposing of, or giving any instructions in relation to the disposition or transfer of, all or any part of –

Now, these are the relevant words –

the moneys standing to the credit of the Respondent and/or his nominee in any account –

I will read it through in its entirety but I just draw your attention to those particular words which your Honour might wish to underline or mark in some way –

(whether held alone, jointly or in conjunction with any other person, including any accounts or property in the name of the principality of Camside or the Terra Nova Cache and any account in relation to which the Respondent is a signatory or which the Respondent otherwise has authority to operate, whether or not the Respondent is named as an account holder and any account which may be operated for the benefit of the Respondent, the Principality of Camside or the Terra Nova Cache) in any bank, building society or other financial institution and, without limiting the generality of the foregoing, account number 3162 1027 8861 in the name of the Principality of Camside with the Commonwealth Bank of Australia - - -

HIS HONOUR: Yes.

MR SHARP: The plaintiff’s contention has been at all times, all relevant times, that the words “the moneys standing in any account” refers to present moneys in present accounts as at the time of the order. It was conceded by my learned friends on behalf of the respondents that if that contention was correct, then none of the charges could be made out because they all related to moneys which could not be shown to be present moneys in existing accounts.

HIS HONOUR: But would one not read that, given its purpose and object, and against the background of its history, as meaning the moneys standing to the credit of the respondent in that account from time to time?

MR SHARP: Your Honour, the first requirement of an order is to read the order and to read it in its plain meaning. If the plain meaning is plain, to repeat the word - - -

HIS HONOUR: Unfortunately, as the experience of this Court demonstrates, what is plain to one reader is not necessarily plain to another. That is why various canons of construction have been developed to help get to a certain degree of commonality about what is plain, but one - - -

MR SHARP: The meaning must be ambiguous, your Honour. For instance, if I can just take an example - if I say “The quick brown fox jumped over the lazy dog” then one poses a question, which animal jumped over which animal? The answer is plain. It is in the terms of the statement. However, if I said, “One animal jumped over the other” and I say “Which animal jumped over which other animal?” one has to go outside the terms of the statement. To describe something as plain, it must be manifestly self-obvious from the words themselves. If the words are capable, when asked a pertinent question, of being met with a response, “Well, it cannot be decided from the words themselves”, then the words are not plain.

In the context of this matter, the relevant question was, do the words refer to present moneys in present accounts as at the date of the order, or do they refer to future moneys in future accounts at any time which, of course, was what the respondent contended. Now, if the words do not themselves provide an unequivocal answer, they could not be said to be plain. That is the first step. We say that the words cannot, as they are written - - -

HIS HONOUR: All right, I understand that argument. What is the next argument?

MR SHARP: Our first contention, our primary contention was that they were, that the words were plain, that the use of a definite article and the present participle “standing” and the word “the”, the definite article, meant that the meaning was clear and unambiguous, that it referred to present moneys in present accounts. However, for the purposes of the argument we were prepared to concede that at the very least it could not be said to be as contended by our learned friends, that it could not be plain to mean future moneys in future accounts, that the very least it could be was ambiguous.

The argument proceeded that if the words were plain, then no extraneous material should or can be looked at as a matter of law. It was conceded that if the words were plain, then there was no basis to look at exterior material. If, however, they were ambiguous, then it was appropriate to look at external material, the point being that if external material was to be looked at, anything and everything relevant should be looked at. There should be no picking and choosing of what can be looked at.

Now, the first point, we say, is that one looks at the decision of the Full Court and one finds that their Honours have ruled, and we say that this is more than what Justice Tracey ruled. Justice Tracey’s ruling was not, we say, that the meaning was plain. But their Honours in the Full Court, which is the decision of course which your Honour is directly concerned with, have purported to say that the meaning is plain. We say, with all due respect to their Honours, that that cannot be so. It is not possible. If that is so, then it is manifest on the face of the record, it is manifest on the documents themselves, that, with respect, the ruling is incorrect.

That is the first point and that is one of the grounds if your Honour cares to refer to them. That is the first ground we have relied on, and in this instance with respect to bail we say it is a primary application. It is a primary objection, that it is manifest on the face of the record that this is wrong and this is erroneous and that, therefore, there is an excellent likelihood that this particular finding will be set aside, or should be set aside. In the interests of justice we say it should be set aside.

However, again, if we were to go on, a question then arises as to the question of ambiguity. Now, we say, on the question of ambiguity that we sought to tender at the trial the transcript. Given our primary contention was that it was plain, we relied only on the transcript if there was a question of ambiguity. We say that that was rejected.

The Full Court dealt with that also as a secondary, as an alternate, or as a – to use the phrase – “back-up proposition”. Bearing in mind that we say his Honour Justice Tracey at the trial in fact sought to remove the ambiguity, his ruling makes it clear that his Honour saw the wording of the relevant order as ambiguous and that he sought to remove the ambiguity, which is perfectly feasible. What we say is his Honour erred – and again we say that this, with respect, is manifest - is that his Honour looked at certain matters but declined to look at the transcript, which is what we say his Honour should have done. We had indicated that we wanted to tender the transcript.

We say that if, as is our contention, the ambiguity could be resolved in favour of the respondent by looking at the transcript, then by failing to look at the transcript a grave injustice will be done. The transcript will have revealed that the plaintiff’s contention is the correct one. His Honour, in the course of his reasons for judgment, makes clear that he seeks to ascertain the reasons and the intentions, the reasons for Justice Gray’s order and his intentions in making that order. Now, the obvious place to look for the reasons and intentions in order to remove an ambiguity if, as we say, his Honour Justice Tracey did, was to look at the transcript, and he did not.

If the transcript, in fact, supports our contention that in fact it would support the plaintiff’s contention as to the meaning of the word, then a grave injustice will be done. Something will have been excluded from consideration which has been sought to be relied on and that this will result in a grave injustice, because it is the meaning of the words in that order upon which this whole matter turns.

If we are correct in our contention as to the meaning of the order then defined to the contrary, without looking at all of the material, all of the relevant material, the material sought to be relied on, will result in a grave injustice and, we say, it is contrary to a court of similar standing to the Full Federal Court in the sense of it is contrary to the decision of the New South Wales Court of Appeal in Athens v Randwick City Council, I think, your Honour. It is referred to. It was relied upon before their Honours.

Athens v Randwick City Council, as part of our applications for special leave, we say ruled that all relevant material to resolve an ambiguity should be looked at – or can be looked at, whereas the Full Federal Court has said that – as best we can make out from the ruling of the Full Federal Court they have said that the only material to be looked at is the judgment, or reasons for judgment.

That would be a reason in itself why the High Court should now grant special leave if we have to go to that stage. We say the primary stage, the reason at this stage why bail should be granted, is that it is manifest that the primary reason of the Full Court is manifestly wrong. On the face of it, it cannot be said to be plain, as the Full Court found, which was their primary reason for judgment. That is, we say, with all due respect, the greatest of respect to the Full Court, manifestly, on the face of it, wrong.

If your Honour goes to the secondary stage, then there are reasons why this Court should grant special leave, if not to prevent a grave injustice, in order to resolve the conflict between the New South Wales Court of Appeal and the Full Federal Court.

Those would be the matters, your Honour, whereby we say that your Honour should now be, with respect, persuaded, I trust, by those arguments, to exercise your Honour’s undoubted discretion and permit to the applicant for bail to bail.

Apropos the other matters which are normally considered, they are dealt with in the affidavit of my learned instructor as to likelihood of appearance, the availability for him to serve a sentence in due course, the necessity that for any particular reason the order should be dealt with, the imprisonment should commence forthwith – all of those aspects are dealt with in the affidavit. I will briefly allude to them. There is no indication – in fact, every indication to the contrary – that the applicant.....for bail is not fully conscious of these proceedings, fully conscientious of his endeavours to oppose them. He has not sought to avoid them in any way. He has answered every requirement by way of appearance. He has briefed and retained lawyers. He has argued the matter. There is nothing to suggest that he would evade or seek to avoid serving the sentence in due course if this Court were to so rule and there is no, as is often the case, manifest or pressing or obvious reason why the sentence should be served now in preference to awaiting the determination of the judge.

His Honour Justice Tracey granted bail. The judge concerned with the – when I say “bail” he stayed the order would be more precise. The judge most intimately and directly concerned with the matter, Justice Tracey, granted a stay in order for the appeal process and leaving aside the distinctions as to whether or not this is part of an appeal process, his Honour Justice Tracey indicated by his appearing to grant a stay that this was not a matter that required an immediate incarceration and we would say that this is the case.

All of those aspects are dealt with in the affidavit. There are no, we submit, usual or ordinary aspects which require the sentence to be served now rather than later, or any risk that the sentence will not eventually be served in due course if and so when determined.

Just to conclude, what we say is the reason why bail should now be granted is that there is the paramount duty to do justice, or to ensure that justice is done and the fact that the ruling of the Full Court can be shown to be, with respect, manifestly, on the face of it, in error. It cannot be plain. Those would be the submissions I would seek to put before your Honour at this stage. Unless there is something further I can assist your Honour by way of answering any queries that your Honour might have.

HIS HONOUR: I saw that in your special leave application, mention is made of a constitutional challenge.

MR SHARP: There are, your Honour. They would not be matters which would directly affect the question of whether or not bail should be granted, so I have not sought to address your Honour on those. But yes, there are a number of constitutional aspects we would seek to raise.

HIS HONOUR: But is not one of the considerations which is critical to whether or not your client would be granted bail the prospects of his succeeding on his special leave application and does that not take me to the prospects of his succeeding on an application in respect of the constitutional arguments?

MR SHARP: I can take your Honour to, if your Honour wishes to hear me on that, yes.

HIS HONOUR: Just tell me briefly, as you have in respect of the other grounds, what is the substance of the constitutional ground and have you - - -

MR SHARP: There is one other ground, your Honour, which is what I might call the practical ground rather than the theoretical ground. I use those two words somewhat loosely but to distinguish between the constitutional arguments and the factual or practical matters. The other practical matter which is of relevance is that his Honour took into consideration a number of – or drew, was prepared to draw, a number of inferences, unspecified inferences adverse to the plaintiff based on the fact that he did not give evidence or call evidence. But at that stage his Honour had not ruled and was hearing three matters. His Honour had not ruled or was about to hear and rule on a total of three matters.

Now, from memory, this particular matter was heard second in a continual series of three. They were heard virtually nose to tail, as it were, one after the other with the interruption of one day, I think, and a weekend. His Honour’s inference that - his Honour’s preparation or willingness to draw an inference completely failed to note or take account of the fact that his Honour was considering three matters, that any evidence that the plaintiff chose to give in this matter would be subject to cross-examination and yet his Honour had not ruled on the first matter he had heard and was going to hear a third matter, all of which would have been subject, or available, to be considered by his Honour before he concluded the three matters by hearing matters, evidence in this matter.

That is only briefly another ground that we seek to rely on, and I will refer and now allude to your Honour to the constitutional aspects. We say that that also is a very serious matter which should give the High Court a reason to rule on this aspect and inferences are being sought to be drawn in matters which are dealt with akin to criminal matters, such as contempt.

The constitutional issues are these, your Honour. There are three as listed and, in effect, a fourth, because we are aware that there is an indication that an order of a superior court such as the Federal Court has to be obeyed unless it is successfully appealed or otherwise set aside. So that if some contempt occurs before that happens, it is not normally an argument to say well the matter upon which the proceeding is based is unconstitutional or depends upon an unconstitutional piece of legislation.

What we allege is that section 65A of the Banking Act is unconstitutional, that everything turns on section 65A of the Banking Act. It gave the court the power to proceed. Briefly, and I will only allude to them briefly unless your Honour wishes some form of elaboration, we say that first of all section 7 and section 66 of the Banking Act are the cardinal points of reference on which section 65A focuses. They are both criminal offences. Section 7 of the Banking Act is in fact an indictable offence.

What section 65A purports to do is to enable, as it has been expounded and the proceeding went on this basis, that it enables a civil proceeding to be heard to determine whether or not sections 7 and 66 had been contravened. So that, in effect, as in fact Justice Tracey used this phrase at one stage, he said it enables the plaintiff to have a dry run. It enabled the court, in effect – and we say this is what it does do ultimately, it creates a court akin to the Star Chamber and the Star Chamber is something which has been found, and centuries ago now, found wanting. There are constitutional reasons why it cannot now be revived.

First of all, the court is purporting to hear in a civil proceeding a criminal matter, thereby eliminating all of the process, the procedures, the safeguards and the requirements of a criminal proceeding. To do that it has to have power in the Constitution. We say it has to have a head of power which enables a criminal matter to be held or dealt with as a civil proceeding. There is no such power in section 51 or in any other possible section of the Constitution which enables the court or the legislature to require that or enable a court to hear a matter as a civil proceeding rather than a criminal proceeding when as they are specifically said to be statutorily enjoined to be criminal proceedings.

If it were the case that they could do that, then any provision in the Crimes Act can simply be dealt with the same way. Just to take an example, piracy in the Crimes Act, it could be dealt with by a civil proceeding if that were constitutionally correct. The legislature could say that there shall be a civil trial for piracy and then the provisions which the court is enabled to grant, we say it is not a judicial proceeding. What happens next is that having given the court the power to inquire, to conduct an inquiry, which we say is an administrative procedure, something akin to a coroner’s inquest or a royal commission, the section purports to enable an inquiry to be held by the court to determine whether sections 7 and 66 have been breached and if the court, following this inquiry, determines that it has been breached, it can then make whatever order virtually it deems possible. It purports to say that the court can do whatever it likes.

I know that that has to be interpreted in accordance with reason and normal rules of interpretation, in other words, it would be dealt with judicially, but in effect, as this proceeding demonstrates, what it enables the court to do is to make orders of a legislative nature affecting people, or directly affecting people not before the court. In other words, it enables the court to make orders other than against parties before the court. That is not judicial, your Honour. It is not a judicial proceeding to enable the court to make such orders and we say that that is legislative and executive.

The third point is more particularly focused. It particularly is focused on section 65A(11) which says that on the application of APRA it can make orders for damages for third parties. We say that that is nothing to do with banking or any other power of the court as contained within the Constitution, that section 65A(11) is outside the ambit.

Why we say the rule that says that the order must be obeyed is that the court failed to take note of the fact that virtually from the beginning of these proceedings we have been attempting to challenge the orders that were made. The court took no note or consideration of the fact that we were attempting, insofar as we were able, to have the orders set aside.

Now, that in the United States has been a relevant factor where this similar rule applies. The Supreme Court of the United States in similar fashion has held it to be relevant to determine whether or not the rule that an order made by a superior court must be obeyed regardless has to be looked at and taken into consideration or whether or not the party concerned sought to overturn it. We did. We sought from the very beginning to overturn and, therefore, the Full Court taking into consideration and Justice Tracey insofar as he did, both enabled the constitutional arguments to be largely disregarded, which such a rule does, and did not take proper account of the fact that we sought to have them set aside. Those are succinctly, so far as I can, your Honour, what we say is relevant with the constitutional arguments.

Now, there is another case in which the constitutional arguments in which this case will be linked we presume if it is heard by way of application for special leave – there are two cases for which application is being sought. The other one is what I have referred throughout as the principal application; it is that the applicant was conducting a bank. The constitutional arguments also arise in that, which is M44, another application for special leave. I envisage that they will be probably dealt with together, and I would certainly be submitting they should be. The constitutional arguments certainly feature in that because it is our contention that it was erroneous to say that the plaintiff was conducting a bank. He was not conducting a bank, and the constitutional arguments will arise in that. I am sorry, your Honour, unless there are any queries?

HIS HONOUR: No, I needed you to outline in short form what the nature of those arguments were so that I would understand the content and have some idea of the strength of the application for special leave, and you have done that. Thank you very much, Mr Sharp. Is there anything else that you want to say?

MR SHARP: Only that I would seek or reserve the right to reply to anything that my learned friend makes which requires a reply, your Honour. That, I believe, would be the appropriate submission to make. Other than that, no.

HIS HONOUR: Yes, thank you. Now, Ms Mortimer, you have already given the Court assistance with the written submissions. Is there anything you want to say in response to the oral submissions made by Mr Sharp?

MS MORTIMER: Yes, your Honour. I will just try and address the matters that have been raised orally. If I can start with the question of the Court’s power, there is no dispute from the applicant obviously about the Court’s power nor about the applicable principles, which we have set out in our written submissions from paragraph 7 onwards, your Honour, save that it is being submitted to your Honour that because this is an application for special leave in relation to a conviction for contempt, some different principles should apply.

Our submission in response to that, your Honour, is that my learned friend has articulated no principles which he submits should apply in substitution for those set out in our written submissions, and the only point he makes is that Mr Siminton’s conviction did not arise by reason of a verdict from a jury.

Now, Justice Spender, when his Honour dealt with this application sitting as the Full Court, dealt with that argument and, in our submission, correctly observed that there is no relevant distinction. The point is, your Honour, that there has been an exercise of judicial power which has been reviewed by an intermediate appellate court and, as we set out in our submissions at paragraphs 18.3.1 and 18.3.2, it is not appropriate – picking up what his Honour Justice Brennan said in Chamberlain – to treat those findings of Justices of the Federal Court as provisional. That is, in essence, in our submission, what is sought to be achieved here.

Now, your Honour asks my learned friend why it took from 5 June to 25 June for a special leave application to be lodged. We have dealt with that, your Honour, in our written submissions at paragraph 15 and we do make the point that a draft application for special leave was before Justice Spender on 5 June. There are very few material differences between that and what has now been lodged, and there is otherwise no explanation – that is relevant, your Honour, only really in terms - - -

HIS HONOUR: Well, there was an explanation concerning the lack of funds, and I can understand that. We do not live in an unreal world. If the applicant is not in the same financial position, for example, as your client is, your client could be expected to move with great speed and would have appropriate resources to do so. But the applicant is incarcerated and raising funds in his circumstances would, I would be prepared to infer, not be easy.

MS MORTIMER: We accept that, your Honour, but there has been nothing put by way of submission by my learned friend this morning that in any relates to needing to wait for the transcript of the hearing before Justice Spender. The point is that the explanation given was that there are no funds to get the transcript, but my learned friend has not put anything to your Honour about what happened before Justice Spender. So the explanation - - -

HIS HONOUR: Anyway, this is really not a very significant aspect of the case I do not think.

MS MORTIMER: If your Honour pleases, I will move on. The next point, your Honour, I want to make is in relation to my learned friend’s submission that your Honour should not approach the application of the established principles by reference to any proportionality approach; that is, my learned friend invites your Honour not to look at how much of the sentence might have expired by the time the special leave application comes on, and our submission, your Honour, is that that submission is contrary to all the authorities of this Court which plainly do recognise that the length of the custodial sentence remaining to be served is a relevant consideration, and that is the approach that the authorities have adopted.

HIS HONOUR: Well, it appears to have been the most relevant consideration in the order that Justice Gummow made in Pelechowski. The fact that – and, indeed, I think his Honour says that:

If matters proceed in their ordinary course, it is to be expected that the custodial sentence will, in whole or most substantially as to part thereof, have expired by the time the special leave application is disposed of.

So that his Honour was obviously addressing the issue of the proportion that would be outstanding, and that really is critical to the issue of the utility or futility of relief.

MS MORTIMER: Yes, your Honour. Of course in Pelechowski – and this again is a point we have made in our written submissions – there was a second highly material factor, and that was that the sentence for contempt had been imposed at first instance by the Court of Appeal.

HIS HONOUR: Yes, I read that. There had not been a facility of appeal - - -

MS MORTIMER: Mr Pelechowski had had no intermediate appellate court review as of right.

HIS HONOUR: Yes.

MS MORTIMER: So there were those two factors, in our submission, that substantially influenced his Honour Justice Gummow’s decision in that case.

HIS HONOUR: Yes.

MS MORTIMER: Now, your Honour, the principal ground in the special leave application that my learned friend has relied on this morning is the ground which alleges that both Justice Tracey and the Full Court erred in their construction of Justice Gray’s order. Your Honour, can I take you briefly, in order to address that, to the reasons of the Full Court, which is exhibit MV3, the one that your Honour has had open where Justice Gray’s order is reproduced.

HIS HONOUR: Yes, I still have it open.

MS MORTIMER: Paragraph 16, your Honour will see the terms of the order.

HIS HONOUR: Yes, I have that.

MS MORTIMER: I want to just take your Honour through how their Honours dealt with that issue. At paragraph 18 of the reasons their Honours make this point, that the orders, although termed “freezing orders” are in fact injunctions and in paragraph 19 their Honours make the point that they are orders which are to apply until the hearing and determination of the proceeding. Their Honours then run through the tenses used in the orders, and they do that in paragraph 19 - - -

HIS HONOUR: Yes, I do not really need your further assistance on that at this stage, at least on my present understanding of the argument.

MS MORTIMER: If your Honour pleases.

HIS HONOUR: Any further assistance would more appropriately be given at the return of the special leave application.

MS MORTIMER: If your Honour pleases. Now, your Honour, is that a position that applies, might I inquire, in relation to the remainder of our written submissions about the strength of the grounds for the special leave application?

HIS HONOUR: It is, yes. Yes.

MS MORTIMER: If I could just give your Honour an indication of the relevant passages of the Full Court’s judgment that deal with the constitutional arguments.

HIS HONOUR: Yes, I have looked at the Full Court’s reasons for judgment, so you do not have to repeat that.

MS MORTIMER: All right. Thank you, your Honour.

HIS HONOUR: If there was anything in particular that you wanted to draw my attention to I will have regard to that.

MS MORTIMER: No, your Honour, only that each of the arguments was dealt with and, in our submission, there are straightforward answers in uncontroversial and settled terms to the constitutional challenges put by the applicant.

HIS HONOUR: I want to emphasise that I am not saying that the applicant has no prospect of success at all in the special leave application, and the only extent to which I am required in this application to examine his prospects of success is to see whether he has what appears to be a strong case for the grant of special leave.

MS MORTIMER: Yes, your Honour, we accept that also because the Full Court in Cabal made it clear that prior to the grant of special leave, very strong grounds need to be shown, and that - - -

HIS HONOUR: Let me say, Ms Mortimer, that in Cabal there was compelling evidence that Mr Cabal was held in most arduous imprisonment conditions, repeatedly strip-searched, taken to court in manacles and humiliated in ways that have not been suggested in this case.

MS MORTIMER: Your Honour, that is an important distinction, and one that we have referred to in our submissions in this way. There is nothing in the evidence before your Honour to suggest that there are any exceptional circumstances personal to Mr Siminton.

HIS HONOUR: Yes.

MS MORTIMER: All that is relied upon is the deprivation of liberty, which we do not minimise, your Honour, and we would not want your Honour to take us as doing so, but the authorities are clear that
deprivation of liberty per se is an insufficient criterion, at the stage which the applicant has reached; that is, seeking special leave.

HIS HONOUR: Yes.

MS MORTIMER: Your Honour, that is really the material distinction between my learned friend’s reliance on what Justice Tracey did at first instance by way of granting a stay and now. Of course, his Honour was sitting at first instance recognising that Mr Siminton had a right of appeal to the Full Court, and that is plainly a different situation from the one facing your Honour.

Your Honour, the likelihood of flight is relied upon. It is not suggested on behalf of the respondent that there is any particular risk of flight, but what we do say at paragraph 16 of our written submissions is that risk of flight is not the starting point in the principles which your Honour has to apply. We accept it is a discretionary consideration, but it really comes at the end of a very different kind of evaluation about what should occur. If your Honour pleases, those are our submissions.

HIS HONOUR: Yes, thank you. Anything in reply, Mr Sharp?

MR SHARP: No, your Honour. I might raise the query about the admissibility of the material objected to which your Honour was going to rule on, I believe, before your Honour concluded.

HIS HONOUR: Yes.

MR SHARP: And that is only by way of perhaps a reminder that - - -

HIS HONOUR: Well, Mr Sharp, on the return of the special leave application you will have to face the affidavit, which I can foresee will be filed, which will endeavour to place this matter before the Court. A consideration before me is whether or not you have a strong case for the grant of special leave and I just do not see how, in weighing that up, I can ignore a matter which will be before the special leave panel. So if you want me to rule on it, I will admit those paragraphs because I believe they will be before the Full Court which is hearing the special leave application, which I am not.

MR SHARP: Your Honour, if they were to play a part – and I accept your Honour’s indication, I do not want to unduly delay the proceedings. If they are to play a part in your Honour’s decision, then I would seek to put before your Honour an indication that in fact they are selective, incomplete and distort and do not support what my learned friend has said by way of the tendering - - -

HIS HONOUR: Well, you can take it they do not play a significant part in my decision on this occasion.

MR SHARP: Yes. Well, the only thing I wish to say, your Honour, is that they do not support my learned friend’s contention that we did not seek to put before his Honour the transcript for the purposes of removing an ambiguity.

HIS HONOUR: Before the Court is a summons seeking an order that Mr David Siminton (the applicant) be admitted to bail on conditions fixed by the Court.

The background to the application

On 7 November 2007, Justice Tracey, in the Federal Court of Australia, found the applicant guilty of multiple charges of contempt arising out of breaches of an order earlier made by Justice Gray in that court. Justice Gray made his orders on 10 January 2006.

For the contempt found, on 28 November 2007, Justice Tracey imposed a penalty of 12 months imprisonment on the applicant. The applicant appealed against that order. He challenged the basis for the finding of a contempt, although he did not bring a separate challenge to the penalty which was imposed by Justice Tracey.

Effectively, Justice Tracey stayed the order for imprisonment pending the resolution of the applicant’s appeal to the Full Court of the Federal Court. He did this by ordering that the warrant lie unexecuted in the registry of the Federal Court pending the hearing and determination of the applicant’s appeal to the Full Court, or further order.

On 30 May 2008, the Full Court of the Federal Court, constituted by Acting Chief Justice Spender and Justices Lander and Buchanan, dismissed the appeal from Justice Tracey’s orders. The Full Court made an order:

“Pursuant to order 6 of the orders of Justice Tracey in proceedings VID 1607 of 2005, made on 28 November 2007, the warrant for the committal of David Ross Siminton to prison for a period of 12 months, referred to in order 4 of those orders, be uplifted from the court file and be executed.”

On the same day, 30 May 2008, on the basis of an oral application made after the delivery of the orders of the Full Court and the publication of the reasons for judgment of that court, Acting Chief Justice Spender, exercising jurisdiction ancillary to that of the Full Court, stayed that order until 4.00 pm on 5 June 2008. That order was made on the basis of a submission on behalf of the applicant that he intended to apply to this Court for special leave to appeal against the orders of the Full Court and that he would bring on a notice of motion for a stay in the usual way.

A notice of motion and supporting affidavit were duly filed in the Federal Court and served on 2 June 2008, together with an outline of submissions and a draft application for special leave to appeal to this Court. On 5 June 2008, Acting Chief Justice Spender, again exercising the incidental jurisdiction of the Full Court of the Federal Court, dismissed the applicant’s application for a stay of the execution of the orders of that court.

Acting Chief Justice Spender found that the applicant’s then proposed application for special leave to appeal to this Court would not be rendered nugatory if a stay were not granted by the Federal Court. He also found that none of the matters advanced by the applicant in his proposed application for special leave to appeal enjoyed a real prospect of success.

The applicant was thereupon committed to prison on 5 June 2008. He remains there at this time. The draft application for special leave, which was before Acting Chief Justice Spender on 5 June 2008 was not perfected in the sense that no application for special leave was, in fact, filed in this Court until 25 June 2008. However, it was filed on that day. It is now before this Court. It is in the pending list of the Court and will be reached in the normal sequence of applications for special leave unless some measure of expedition is granted to it.

The nature of the proceedings and principles

As incidental to the application for special leave, and in order to protect the utility of that application, by summons, the applicant has now applied to this Court for the exercise of its own jurisdiction to grant him bail, pending the hearing and determination of his application for special leave or further order.

I do not doubt that this Court has the jurisdiction to grant bail to the applicant as incidental to the exercise of its jurisdiction to consider and determine his applications for special leave. Indeed, so much was not disputed by the respondent.

I remind myself that I am not sitting here on appeal from the orders of Acting Chief Justice Spender, or in a special leave application from those or earlier orders. I am sitting as a single Justice considering the application for bail, and that alone. I am not conducting a review of the order, or reasons for decision of Acting Chief Justice Spender on the determination by him of the application in the Federal Court for a stay of the operation of that court’s orders. My duty, and only duty, is to exercise the jurisdiction of this Court.

I take into account the fact that the liberty of the applicant is precious. I also take into account the fact that the imprisonment which the applicant is serving is for contempt of court. This is, in some ways, a peculiar wrong. It is not, as such, a criminal offence provided by legislation or otherwise, which has been executed following a decision by a jury or by a judge which has thereby resulted in his imprisonment.

Notwithstanding these considerations, in my opinion, the application for bail fails. Repeated authority of this Court has emphasised the exceptional character of a grant of bail by the Court prior to a grant of special leave to appeal to the Court and even, indeed, thereafter, pending the outcome of the appeal.

The provision of bail, as incidental to the attempt to invoke the jurisdiction of the Court, requires the demonstration of special, or exceptional, circumstances: see Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681; [1986] HCA 84 and Beljajev v Director of Public Prosecutions and Another (1991) 173 CLR 28; [1991] HCA 16.

The reasons for refusing bail to the applicant

In my view, special or exceptional circumstances have not been made out. I take into account all of the matters that have been urged upon the Court by the parties today. Chief amongst the considerations that bring me to my conclusion are the following:

First, bail is not necessary in this case to preserve the utility of the subject matter of the application for special leave or of an appeal by the applicant to this Court. The subject matter of such application, and if special leave is granted, such appeal will remain relevant, even if I refuse bail. On the estimate of the likely hearing time of the applicant’s application to the Court for special leave (which would be some time in August 2008) the applicant would still have about 10 months of his sentence then to serve. This, obviously, has a utility. The refusal of bail would not render the pursuit of the application nugatory or of no value to the applicant.

Secondly, in this case, unlike in Pelechowski v Registrar, Court of Appeal (1998) 72 ALJR 711, the applicant has had the facility of an appeal against the orders of Justice Tracey to the Full Court of the Federal Court. That court has considered his appeal on its merits. For reasons which it has published and which were unanimous, it rejected the applicant’s appeal. That is an important point of distinction from Pelechowski where one of the reasons that moved Justice Gummow to provide bail to the applicant in that case was the fact that “if matters proceed in their ordinary course it is to be expected that the custodial sentence will, in whole or most substantially as to part thereof, have expired by the time the special leave application is disposed of”. The other point of distinction is the fact that, in that case, exceptionally, the application for special leave was from the orders of punishment for contempt entered by the Court of Appeal of New South Wales. There had been no opportunity of intermediate appellate consideration.

Thirdly, the case of the applicant is not “exceptional” or “special” as the authority of this Court repeatedly says is necessary for the provision of bail: see, for example, United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60. The applicant would not, here, have substantially served the sentence which he wishes to challenge. There would still be real utility in his application, and if special leave is granted, his appeal to this Court. The cases repeatedly emphasise that bail is not available from this Court simply because, in a pending matter, the applicant has been committed to prison by order of the court below.

Fourthly, I have reviewed the grounds of the application for special leave and considered these against the reasons for judgment of the Full Court of the Federal Court disposing of the applicant’s appeal to it. In my estimation, the applicant’s prospects of special leave cannot be said to be strong. I say this without prejudging the application. I have reached no final view upon it. However, necessarily, and in accordance with the authorities, I have had to consider whether there are strong prospects that special leave will be granted. If there were, that would be a consideration which would weigh in favour of the provision of bail.

Viewing the matter on my present understanding, and only for the present purposes, I would not describe the prospects of a grant of special leave as strong. Accordingly, in the exercise of the jurisdiction and power of this Court to grant bail to protect the process that has been invoked in this Court, I would refuse the applicant’s application for bail.

It follows that it is unnecessary for me to determine other questions, such as the risk of flight, which I would not, as at present advised, consider to be great. Nor is it necessary for me to determine the conditions that would be appropriate to a grant of bail, were I to make that grant.

Order for expedition and ancillary matters

Notwithstanding the foregoing conclusions, it is obviously highly desirable that the applicant’s application should come before the Court and be considered as quickly as possible. If the applicant were granted special leave by the Court, obviously, it would be open to him to apply to the Court again for the grant of bail, as, indeed, he can do at any time on the basis of new evidence or argument.

This being the case, I order that the hearing of the application for special leave be expedited so that it will be returned in the first available list that is convenient to the Court and to the parties.

I now ask a question, first of you, Mr Sharp. My understanding is that the matter could be listed on 1 August, but that is a Sydney list. I do not know whether it would be convenient for you to come to Sydney to make the application on that day? If it would, and if you want it returned on that day, I would make recommendation that a place be found in the Sydney list that day. Otherwise, it would be returned on the first occasion that the Court will be sitting in Melbourne. A question in relation to costs also arises.

MR SHARP: My learned friend indicates to me that your Honour might be mistaken, with respect. The indication here is that the August sittings are a Melbourne sittings – 1 August would be in Melbourne. Going on what I understood from both the Registrar and from my learned friend just then, your Honour, that, in fact, 1 August will be in Melbourne. That would be one fact I would seek to address, your Honour, and if that might be clarified. We would certainly not be in a position to go to Sydney for financial reasons. We would wish to be heard orally.

HIS HONOUR: I am told that you are, in fact, correct. There is a special leave hearing in Melbourne on 1 August. So I will amend what I earlier said. I will direct that the matter be expedited and included in the special leave list for Friday, 1 August 2008 in Melbourne for hearing.

MR SHARP: Thank you, your Honour. Just apropos that, we would wish and we would indicate that we would wish to make oral submissions – be heard orally, rather than on the papers. The second factor is we would seek that it be in Melbourne and, thirdly, your Honour, I note that there is the second matter – I have already alluded to the fact that this matter is being, as it were, run in tandem - - -

HIS HONOUR: You are dropping your voice, and I am not hearing every second word.

MR SHARP: I am sorry, your Honour. Just to reiterate in case your Honour did not hear what I had said previously, yes, we would wish to be heard orally in Melbourne and we would be indebted if your Honour would make that order for an expedited hearing in Melbourne. But, secondly, we note that there is a second matter which your Honour might be prepared at this stage to indicate should be linked and equally dealt with expeditiously in tandem with M45, and that is, as I have alluded to, M44, the hearing of the application for special leave relating to the principal application, the question as to whether or not, in effect, Mr Siminton was conducting banking.

HIS HONOUR: It would seem sensible to return them all before the Court on 1 August 2008.

MR SHARP: Yes, your Honour. I would only be concerned if they might be in some way separated in the - - -

HIS HONOUR: I am not sure whether the other matter is ready, or whether that is suitable to be expedited. I will not say anything about that except that it would be usual in such circumstances (and would seem to be sensible) that if the other application can be put in a state of readiness it should also be returned before the Court on 1 August 2008 – the two applications being interrelated.

MR SHARP: Yes, as far as we are concerned, both could be ready, your Honour, so it would only be a question of the Court. Yes, thank you, your Honour.

HIS HONOUR: Do you have anything to say on those matters, Ms Mortimer?

MS MORTIMER: Your Honour, not on those matters, but I am instructed to make an application for the costs of today.

HIS HONOUR: Why would one order costs in this matter? Is there not a principle that the Crown, or its successors, the Commonwealth, or its manifestations, neither seek nor receive costs in criminal matters?

MS MORTIMER: Your Honour, subject to what the Court will say in the reserved decision, the principles, as I understand them, are that a proceeding for contempt is a civil proceeding, albeit that it is decided on the standard of proof of beyond reasonable doubt and, your Honour, this matter has always been conducted as a civil proceeding.

HIS HONOUR: I notice that in the Full Court, Justice Spender refused the application for the stay order with costs.

MS MORTIMER: He did, your Honour.

HIS HONOUR: So he must have taken the view that you have just urged on me. What do you say about this, Mr Sharp?

MR SHARP: I will not trouble your Honour. We would not take a position on costs.

HIS HONOUR: Very well. I make the following order. The application for bail is refused. The applicant must pay the respondent’s costs. The hearing of the special leave application is expedited to the Melbourne list for hearing on 1 August 2008.

The Court will now adjourn.

AT 11.12 AM THE MATTER WAS CONCLUDED