case_text: I am also satisfied that the erroneous classification of the products amounts to an error of law. There has been some debate about whether a mistake as to the ordinary meaning of a word used in a statutory provision can of itself amount to an error of law. In Peacock v Zyfert (1983) 48 ALR 549 at 564-565, Lockhart J said: "I now turn to a submission made on behalf of the appellants that the question which was before the Customs for determination in this case was one of fact and that the primary judge erred in treating it as a question of law. Reliance was placed upon the principle that, where a word is an ordinary English word, its meaning is not a question of law and, accordingly, whether the facts of a given case fall within that meaning is a question of fact. Reference was made to Hope v Bathurst City Council (1980) 29 ALR 577 at 580-2; [1980] HCA 16 ; 144 CLR 1 at 6-8 (per Mason J); Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (No 2) (1980) 3 ALD 38 at 49-51 (per Fisher J) and at 55-6 (per Sheppard J); and Brutus v Cozens [1972] UKHL 6 ; [1973] AC 854, esp at 861 (per Lord Reid) where his Lordship said: 'The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. ... It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law, but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.' In my opinion this principle has no application in this case. If taken to its logical conclusion the appellants' argument really asserts that it is for the Customs to say in each case whether any, and if so which, provision of the Tariff applies to particular goods. But it is not a question of the Customs simply determining whether particular goods fall within the meaning of ordinary English words. What the Customs would be deciding, if the appellants are correct, is whether the description of particular goods falls within particular chapters, items, sub-items, paragraphs and sub-paragraphs of the Tariff. It must be a question of law whether a given description of goods falls within a particular part of the Tariff. Here the question is what particular part of the relevant Schedule, if any, applies. This necessarily involves a question of construction of the Tariff and is a question of law: see Whitton v Falkiner [1915] HCA 38 ; (1915) 20 CLR 118, per Isaacs J (at 127)." See also Fox J at 555-556. 27 Subsequently, the issue was discussed at some length by Burchett J in Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 (" Baxter Healthcare ") in a most helpful judgment. His Honour said at 471-472: "A preliminary point should be mentioned, since it is important, although little attention was paid to it in argument. Where there is a question whether something falls within a verbal description in a statute (as in a case raising the application of a tariff item), the answer may depend simply on findings of fact as to the meaning of the words constituting the description and as to the nature of the thing itself. With regard to the words, '[t]he question what is the meaning of an ordinary English word or phrase as used in [a] Statute is one of fact not of law': Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137 per Jordan CJ. Nevertheless, once the nature of the thing has been found as a fact, whether it falls within the verbal description will, in many cases, be a question of law. For, in the first place, it may not be a matter of applying merely the ordinary English meaning of words or phrases, but of applying a meaning derived from the statute by a process of construction, which is a process of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 10 per Mason J, with whose reasons Gibbs, Stephen and Aickin JJ stated their agreement. The principle that construction is a process of law has never been doubted, although the completeness of the proposition derived from it that '[t]he effect or construction of a term once its meaning or interpretation is established is a matter of law': Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645 at 648 per Gummow J; Collector of Customs v Pozzolanic Enterprises Pty Ltd (at 287), and the relationship between that proposition and the proposition that the meaning of an ordinary word or phrase is a matter of fact, were left in some doubt when Agfa-Gevaert v Collector of Customs was reversed on appeal by the High Court: see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 395-397. Gummow J, in Agfa-Gevaert Ltd v Collector of Customs , also held (ibid) that it is a question of law 'whether the facts as found fall within the terms of the law as properly construed; to this there is the qualification that, where the statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the decision as to whether they do so fall generally is a matter of fact'. His Honour added that the limitation 'generally' was required, even in this last case, 'because the law may use a word in an ordinary sense, but there may be a number of ordinary senses and it then is necessary to select that which is appropriate, and because whilst the word may have but one ordinary meaning that is imprecise, the word will take its colour from the context and that will require construction of the law, a lawyer's task. The result in such cases will be more than the matching of a set of facts with plain words'. The proposition that 'whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law' was stated to be sustained by '[m]any authorities' in the judgment of Mason J in Hope v Bathurst City Council (at 7). The same proposition was subsequently applied by Full Courts of this Court to cases where what was in issue was whether facts as found fell within the provision of a tariff item: Peacock v Zyfert (1983) 48 ALR 549; Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285 at 293, 306." 29 The first qualification arises where a statute uses a word whose meaning is clear but the word is inherently capable of more than one application or outcome in the circumstances of the case. In such a case, the question whether the statutory description is satisfied will often be simply a question of fact: see, for example, the discussion of Brutus v Cozens [1972] UKHL 6 ; [1973] AC 854 by Mason J in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7-8; and see also Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 14-15.


case_outcome: cited

case_title: Sharp Corporation of Australia Pty Ltd v Collector of Customs (1994) 59 FCR 6

case_text: The first qualification arises where a statute uses a word whose meaning is clear but the word is inherently capable of more than one application or outcome in the circumstances of the case. In such a case, the question whether the statutory description is satisfied will often be simply a question of fact: see, for example, the discussion of Brutus v Cozens [1972] UKHL 6 ; [1973] AC 854 by Mason J in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7-8; and see also Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 14-15.


case_text: The Tribunal placed some reliance upon the following observations of Griffith CJ in Markwell v Wollaston [1906] HCA 91 ; (1906) 4 CLR 141 (" Markwell v Wollaston ") at 148: "In my opinion, the term insecticide, as commonly used in English, means, or at any rate includes, any preparation in the nature of a drug or chemical adapted solely or mainly to the destruction of insect life, and the effect of which is produced either by immediate contact with the insect or by some influence fatal to insect life inherent in or emanating from the preparation." It is noteworthy that Griffiths CJ did not confine the common meaning of insecticide to preparations aimed solely or mainly at the destruction of insect life. He expressly recognised that in common usage the term insecticide might be broader than the meaning he was concerned to address. 36 What is of much greater significance is that heading 3808 and its sub-headings contain other indications that the word 'insecticide' is used in a way that embraces products that are designed to exterminate, reduce, repel or control targeted insect populations. Sub-heading 3808.10, 'Insecticides', is elaborated by sub-headings 3808.10.10 and 3808.10.90. Sub-heading 3808.10.10 provides that certain types of insecticides, namely camphor, fly papers and mosquito spirals and coils, are to be free of duty, whereas other insecticides attract duty at the rate of 5 per cent. We know from Markwell v Wollaston that the mixture of oil and resin that is smeared on fly paper is a preparation that falls within the ordinary meaning of the term 'insecticide'. The terms 'camphor' and 'mosquito coils' are defined in the Macquarie Dictionary (3 rd Ed) as follows: "Camphor 1. a bicyclic, aliphatic, terpenoid ketone, C 10 H 16 O, obtained chiefly from the camphor laurel or by synthesis, and used in medicine, the manufacture of celluloid, etc. 2. any of various similar substances, for household use as an insect deterrent. Mosquito coil a stiff coil of insect-repellent material, which, when set on a stand and ignited, burns slowly and releases insect-repellent smoke." By treating camphor and mosquito coils as insecticides, it is apparent that heading 3808 and its sub-headings use the term 'insecticide' so as to include chemicals or products which repel or deter insects. The term is not used in a way which is confined to chemicals which directly or indirectly kill or exterminate insects. 37 The examples given in parentheses in heading 3808, namely sulphur treated bands, wicks and candles and fly papers, provide another indicator that points in the same direction. The first two examples suggest that the word 'insecticides' in heading 3808 is intended to include products that repel insects or that in some way modify the behaviour or physiology of insects so as to render them less pestilent. 38 The Tribunal failed to take these contextual indications into account. Both sets of indications support a wider meaning of 'insecticide' than that adopted by the Tribunal.


case_text: At the very least, the examples in heading 3808 and the references to camphor and mosquito spirals and coils in sub-heading 3808.10.10 suggest that there is some ambiguity about the way in which the term insecticide is used in the heading. To adapt the language used by Burchett J in Baxter Healthcare , a legal choice must be made about possible concepts conveyed by the statutory expression, and in making that choice it is appropriate to take account of the intent and purpose of the Customs Tariff Act . In my opinion, it would have been permissible for the Tribunal to have regard to the Harmonised System Notes as an extrinsic aid to the interpretation of heading 3808. Where the language of a heading is ambiguous or susceptible to different interpretations, the Harmonised System Notes are an appropriate extrinsic aid to interpretation: Gardner Smith v Collector of Customs Victoria (1986) 66 ALR 377 at 383-384; Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 103 ALR 565 at 571-573; and Toyota Tsusho Australia Pty Ltd v Collector of Customs [1992] FCA 282 at [22] - [30] .


case_title: Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 103 ALR 565


case_title: Toyota Tsusho Australia Pty Ltd v Collector of Customs [1992] FCA 282


case_text: The Tribunal held that it was necessary to find a class or genus of goods common to all of the particular descriptive words which proceed the phrase 'and similar products' in heading 3808. The appellant was critical of this approach, but there is nothing exceptional or unorthodox about it. Such approach is commonly referred to as an application of the ejusdem generis rule, but it overstates its proper function to call it a rule. It is no more than a guide to interpretation and must be used cautiously: see Pearce and Geddes, Statutory Interpretation in Australia (5 th Ed) at [4.19]-[4.24]. The rule has been criticised by Mahoney JA in Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 373 and by Wells J in Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 at 587. There will be occasions when it is not appropriate to apply the rule having regard to the context and purpose of the particular statutory provision. There will also be occasions where the descriptive terms that precede the general words are so varied that it is futile to search for a single genus or class that can be of assistance in giving meaning to the general words. Conversely, there will be occasions where it is both sensible and appropriate to give meaning to the general words by identifying the class or genus that is indicated by the preceding particular words. All in all, the surest approach is to give meaning to general words which follow particular words in a statutory provision by determining the meaning of those words in their context and by reference to the purpose of the provision, in the same way as meaning is given to other words in a statute.


case_title: Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541


case_text: The appellant argued that it is sufficient in law if the goods in question are similar to any of the goods previously described by name, citing Acrow Australia Ltd v Collector of Customs (1986) 12 FCR 129 at 132. The appellant also submitted that if the Tribunal had asked itself the question whether the products in question were similar to insecticides, it would have been bound to answer the question affirmatively. 49 It is unnecessary for me to express any concluded view about this aspect of the appellant's argument. I have some reservations about it. It begs the question as to what standard of similarity is to be applied. Moreover, if the term insecticides were properly defined in its statutory context in the narrow way that the Tribunal determined, it would not necessarily follow that the products were similar to insecticides. 50 The appellant submitted that the Tribunal erred in law in classifying the products under sub-heading 2905.29.00 because Ch 29 only applies to chemicals or mixtures of chemicals. The products in question were not merely chemicals but rather devices for dispensing certain chemical agents.


case_title: Re Bayer v Australia Ltd v Collector of Customs (NSW) (1985) 7 ALN 84

case_text: Paragraph 1(e) of the Note provides another indication that Ch 29 does not apply to dispensing devices. Its effect is that a chemical mixture will fall outside Ch 29 if the chemical compound in question is dissolved in a solvent for reasons other than safety or transport, or if the solvent renders the chemical particularly suitable for some specific commercial use rather than general use. An earlier version of the same provision was explained and applied in Re Bayer Australia Ltd v Collector of Customs (NSW) (1985) 7 ALN 84. That case concerned a chemical known as flumethrin which was the active ingredient in a cattle tick insecticide. The flumethrin was imported in 200 litre drums as a 60 per cent premix concentrate dissolved in a solvent. The Tribunal held that the chemical mixture was taken outside Ch 29 by the relevant paragraph of Note 1. This was because the addition of the solvent so as to make a standardised 60 per cent solution was not a normal and necessary method adopted solely for reasons of safety or for the purpose of transporting the goods as required by the Note; it was also adopted for several other reasons including the production of a workable solution at the place where final mixing takes place. 55 In my opinion, these indications are confirmed by a reading of the whole of Ch 29. 56 The Tribunal did not examine Note 1 to Ch 29. Nor did it specifically consider the question whether Ch 29 was confined to chemicals, and was incapable of applying to dispensing devices which incorporated a chemical dosage. Rather, the Tribunal moved directly to r 3 of Sch 2.


case_outcome: referred to

case_text: In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 Gillard J identified the elements which it is necessary for a complainant to establish in order to make good a charge of civil contempt of Court. His Honour said: "[31] In order to prove a civil contempt of Court involving a breach of an order of the Court, the plaintiff has to prove the following: (i) that an order was made by the Court; (ii) that the terms of the order are clear, unambiguous and capable of compliance; (iii) that the order was served on the alleged contemnor or excused in the circumstances, or service dispensed with pursuant to the Rules of Court; (iv) that the alleged contemnor has knowledge of the terms of the order; (v) that the alleged contemnor has breached the terms of the order. [32] It is necessary for the plaintiff to prove each element beyond reasonable doubt in accordance with the principles of the criminal law, in proving element (v) it must be proven that the act or omission which constituted the breach of the order was deliberate and voluntary." 41 There is no dispute, and I am satisfied that: • Order 1(e) was made by Gray J on 10 January 2006. • A copy of Gray J's orders was served on Mr Siminton on 23 January 2006. An amended copy of the orders was served on him on 9 May 2006. The relevant amendment was the inclusion of the endorsement required by Order 37 Rule 2(3) of the Federal Court Rules . • Mr Siminton had knowledge of the terms of the orders. Mr Siminton has put in issue the questions of whether Order 1(e) is clear and unambiguous, whether the Order has extra-territorial operation and whether APRA has established beyond reasonable doubt that he engaged in deliberate conduct which was in breach of Gray J's orders.


case_text: In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 497-8 Merkel J summarised the current state of the law on when disobedience of a Court order will constitute a contempt of court. His Honour said: "Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australasian Meat Industry Employees Union v Mudginbeeri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106-107 and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530 ... However, as all proceedings for contempt are now regarded as criminal in nature, all of the charges must be proved beyond reasonable doubt: see Witham at 534." See also AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 112-3; Heatons Transport v TGWU [1973] AC 15 at 109.


case_text: On 10 April 2006 Merkel J ordered that Mr Siminton be imprisoned in respect of the various contempts: see Australian Prudential Regulation Authority v Siminton (No. 3) (2006) 230 ALR 528. 7 Mr Siminton lodged an appeal against the findings and orders made by Merkel J. His appeal was allowed in part because the sealed copy of the orders made by Sundberg J, although personally served on Mr Siminton, had not contained the endorsement required by Order 37 Rule 2 of the Federal Court Rules . The order that Mr Siminton be imprisoned was set aside. The Full Court, nonetheless, upheld Merkel J's findings that Mr Siminton had been guilty of contempt and substituted a penalty of $50,000: see Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129. 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. 50 I note that Order 1(e) is, relevantly, in identical terms to Order 2 (b) made by Sundberg J on 15 December 2005. When Mr Siminton was charged, before Merkel J, with having contravened this order he did not contend that it was ambiguous or uncertain or that he had not understood it. 51 The question of whether or not Mr Siminton, in the present proceeding, acted on a bona fide misunderstanding of the order, will fall for consideration, on the evidence, when it becomes necessary to determine what action the Court should take in response to any contravention on the part of Mr Siminton. 52 Mr Siminton also submitted that Order 1(e) did not have extra-territorial operation so as to apply to accounts, otherwise comprehended by its terms, which were held off shore. This objection, as I understood it, applied to Charge 1.9 which alleges that Mr Siminton gave instructions that a sum of money held in an account controlled by him in a bank in Austria should be transferred to the Holzheimer's Visa account.


case_text: 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."


case_text: It is trite law that injunctive orders of the Court "should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction: see ICA Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 per Lockhart J, with whom Gummow and French JJ agreed. What is not as clear is what is comprehended, in the context, by the word "unambiguous" and what consequences flow from a finding of ambiguity if it is sought to enforce an order in proceedings for contempt. In Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 the appellant contended that, unless the language of an undertaking was unambiguous and certain, it should not be enforced by contempt proceedings. This submission was rejected by the Court. Barwick CJ said (at 492): "If the order or undertaking is so expressed as to be meaningless, there is of course nothing which can be enforced. But, if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the order or undertaking in the sense in which the Court assigns to it. If the Court is satisfied that the party said to be in contempt bona fide believed himself bound only by a construction which the Court thinks to be erroneous, it may for that reason, in its discretion, refuse to make an order or, if it makes an order, refuse to make an order for costs against that party. But, even in such a case, the enforcement of the plaintiff's rights must not be left out of account. A party who has bona fide acted on erroneous view of an order or undertaking may, according to the circumstances, nonetheless be justly adjudged guilty of contempt in procedure. In my opinion, this is equally so where, because of its terms or circumstances, the order or undertaking requires construction in order to determine its meaning and will move ambiguities patent or latent." 48 In Universal Music Branson J (with whom Lindgren and Finkelstein JJ agreed), having referred to Morgan and a number of older authorities, concluded (at 119-120) that: "...the authorities discussed above reveal that an injunction is not rendered invalid, or incapable of founding a charge of contempt, merely because it leaves a respondent with room to wonder whether future conduct falls within it. At least where the true construction of the order is one which ought fairly to have been in the contemplation of the person to whom the order was directed ... the Court which entertains the charge of contempt will be required to determine that construction. Of course, it may be highly relevant to the question of punishment that a respondent failed to comply with the order because he, she or it placed a construction on the order that was not its true construction."


case_text: This objection must fail. At all relevant times Mr Siminton has been in Australia and subject to the jurisdiction of the Court. That jurisdiction includes power, under s 23 of the Federal Court of Australia Act 1976 (Cth), to make orders of the kind which Gray J made in this proceeding: see Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at 132; Australian Competition and Consumer Commissioner v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576 at 589. There was no jurisdictional obstacle to Mr Siminton being required not to perform certain acts in Australia which might lead to consequential action being taken overseas. In National Australia Bank Ltd v Dessau [1988] VR 521 at 522 Brooking J summarised the applicable legal principles as follows: "That a court of equity, acting as it does in personam, may order someone amenable to its jurisdiction to do or refrain from doing an act abroad was established quite early in our history, before even the days of the Boston Tea Party (Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132). The jurisdiction is grounded not on any pretension to the exercise of judicial power abroad but on the circumstances that the defendant, being amenable to the Court's jurisdiction can be personally directed to act or not to act ..."


case_title: Heatons Transport v TGWU [1973] AC 15


case_text: It is trite law that injunctive orders of the Court "should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction: see ICA Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 per Lockhart J, with whom Gummow and French JJ agreed. What is not as clear is what is comprehended, in the context, by the word "unambiguous" and what consequences flow from a finding of ambiguity if it is sought to enforce an order in proceedings for contempt. In Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 the appellant contended that, unless the language of an undertaking was unambiguous and certain, it should not be enforced by contempt proceedings. This submission was rejected by the Court. Barwick CJ said (at 492): "If the order or undertaking is so expressed as to be meaningless, there is of course nothing which can be enforced. But, if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the order or undertaking in the sense in which the Court assigns to it. If the Court is satisfied that the party said to be in contempt bona fide believed himself bound only by a construction which the Court thinks to be erroneous, it may for that reason, in its discretion, refuse to make an order or, if it makes an order, refuse to make an order for costs against that party. But, even in such a case, the enforcement of the plaintiff's rights must not be left out of account. A party who has bona fide acted on erroneous view of an order or undertaking may, according to the circumstances, nonetheless be justly adjudged guilty of contempt in procedure. In my opinion, this is equally so where, because of its terms or circumstances, the order or undertaking requires construction in order to determine its meaning and will move ambiguities patent or latent."


case_title: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494


case_title: National Australia Bank Ltd v Dessau [1988] VR 521


case_text: Mr Siminton lodged an appeal against the findings and orders made by Merkel J. His appeal was allowed in part because the sealed copy of the orders made by Sundberg J, although personally served on Mr Siminton, had not contained the endorsement required by Order 37 Rule 2 of the Federal Court Rules . The order that Mr Siminton be imprisoned was set aside. The Full Court, nonetheless, upheld Merkel J's findings that Mr Siminton had been guilty of contempt and substituted a penalty of $50,000: see Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129. 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." 54 This objection must fail. At all relevant times Mr Siminton has been in Australia and subject to the jurisdiction of the Court. That jurisdiction includes power, under s 23 of the Federal Court of Australia Act 1976 (Cth), to make orders of the kind which Gray J made in this proceeding: see Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at 132; Australian Competition and Consumer Commissioner v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576 at 589. There was no jurisdictional obstacle to Mr Siminton being required not to perform certain acts in Australia which might lead to consequential action being taken overseas. In National Australia Bank Ltd v Dessau [1988] VR 521 at 522 Brooking J summarised the applicable legal principles as follows: "That a court of equity, acting as it does in personam, may order someone amenable to its jurisdiction to do or refrain from doing an act abroad was established quite early in our history, before even the days of the Boston Tea Party (Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132). The jurisdiction is grounded not on any pretension to the exercise of judicial power abroad but on the circumstances that the defendant, being amenable to the Court's jurisdiction can be personally directed to act or not to act ..."


case_text: Counsel for Mr Siminton sought to introduce expert evidence from a linguist as to how an ordinary person would construe the words " the moneys standing to the credit of the respondent" in Order 1(e). It was these moneys which Mr Siminton was prevented from dealing with. The expert opinion was that a reader of the order would understand it to apply to moneys which were in the relevant accounts on the date on which the order was made 10 January 2006 and not moneys thereafter added. I rejected the tender of this evidence because the proper construction of Order 1(e) was a matter of law, not a matter of fact: see Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110 at 116. 44 I allowed counsel to pursue an argument that, as a matter of law, the order was to be construed and understood in the manner contended for by the expert. As developed the submission was that "the moneys" was a reference to a definite article. When read in conjunction with " standing " the use of the present tense meant that the relevant moneys were those in the relevant accounts on 10 January 2006 rather than "future moneys" in "future accounts". 45 Counsel for APRA submitted that Order 1(e) was properly to be construed as applying to any moneys standing to the credit of a relevant account during the currency of the order. Attention was directed to other parts of Gray J's orders, for example, paras 1 (a), (b) and (c), which restrained Mr Siminton from doing things in the future. Counsel conceded that, if Mr Siminton's construction argument succeeded, no contraventions of Order 1(e) could be established. 48 In Universal Music Branson J (with whom Lindgren and Finkelstein JJ agreed), having referred to Morgan and a number of older authorities, concluded (at 119-120) that: "...the authorities discussed above reveal that an injunction is not rendered invalid, or incapable of founding a charge of contempt, merely because it leaves a respondent with room to wonder whether future conduct falls within it. At least where the true construction of the order is one which ought fairly to have been in the contemplation of the person to whom the order was directed ... the Court which entertains the charge of contempt will be required to determine that construction. Of course, it may be highly relevant to the question of punishment that a respondent failed to comply with the order because he, she or it placed a construction on the order that was not its true construction."


case_text: In seeking to make good each of these charges APRA invites the Court to draw certain inferences. This invitation is made in circumstances in which neither Mr Siminton nor any other persons, such as the Holzheimers, who might reasonably have been expected to have knowledge of relevant events, gave evidence. No adverse inference can be drawn merely because Mr Siminton has chosen not to give or call evidence in defence of the charges. The failure is nonetheless of potential significance. This is because, as the High Court explained in RPS v R [2000] HCA 3 ; (2000) 199 CLR 620 at 632-633: "...it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting and apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen: '[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.' "(footnotes omitted). The inferences which APRA invited the Court to draw are founded on uncontradicted evidence. Counsel for Mr Siminton did not make any specific submissions as to why the inferences for which APRA contended should not be drawn. 57 In each case I am satisfied beyond reasonable doubt that those inferences ought to be drawn, that the conclusions contended for by APRA are supported by the evidence and that the evidence does not support a finding that there is any reasonable or rational hypothesis consistent with Mr Siminton's innocence of any of these charges. 58 I am also satisfied that the affidavit and documentary evidence tendered by APRA strongly supports the case made by it and that this evidence establishes each of the matters of fact necessary to make good each of the charges.


case_outcome: related

case_text: On 20 December 2007 I made orders pursuant to s 21(2)(b)(i) of the Extradition Act 1988 (Cth) (the Act) on the application of Jan Tervonen quashing an order of the second respondent made on 6 June 2007 that Tervonen was eligible for surrender to the first respondent, the Republic of Finland, for certain offences, and the consequent issue of a warrant pursuant to s 19(9) of the Act ( Tervonen v Finland [2007] FCA 2067). That decision was based upon the judgment of Rares J in Tervonen v Minister for Justice and Customs [2007] FCA 1684 ; (2007) 98 ALD 589 and consequent orders declaring invalid and quashing successive notices purporting to have been given pursuant to s 16 of the Act ( Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898). That basis for the decision meant that I did not need to consider the other arguments raised on behalf of Tervonen. The Full Court allowed an appeal from the decision of Rares J ( Minister for Home Affairs v Tervonen [2008] FCAFC 24 , corrected in Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32). Consequently, on 6 March 2008, the Full Court allowed an appeal from my earlier decision, set aside the orders that I had made and remitted the matter to me to be determined according to law ( Republic of Finland v Tervonen [2008] FCAFC 25). 36 The validity of the amended s 16 notice, excluding offences 55, 57 and 58, has been established by the decision of the Full Court in Minister for Home Affairs v Tervonen [2008] FCAFC 24 with supplementary reasons Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32. In any event, in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; 185 CLR 528 , Brennan CJ, Dawson and McHugh JJ said (at 539): "Lacking any power to review those decisions [including the giving of a s 16 notice], a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made."


case_title: Minister for Home Affairs v Tervonen [2008] FCAFC 24


case_text: On 20 December 2007 I made orders pursuant to s 21(2)(b)(i) of the Extradition Act 1988 (Cth) (the Act) on the application of Jan Tervonen quashing an order of the second respondent made on 6 June 2007 that Tervonen was eligible for surrender to the first respondent, the Republic of Finland, for certain offences, and the consequent issue of a warrant pursuant to s 19(9) of the Act ( Tervonen v Finland [2007] FCA 2067). That decision was based upon the judgment of Rares J in Tervonen v Minister for Justice and Customs [2007] FCA 1684 ; (2007) 98 ALD 589 and consequent orders declaring invalid and quashing successive notices purporting to have been given pursuant to s 16 of the Act ( Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898). That basis for the decision meant that I did not need to consider the other arguments raised on behalf of Tervonen. The Full Court allowed an appeal from the decision of Rares J ( Minister for Home Affairs v Tervonen [2008] FCAFC 24 , corrected in Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32). Consequently, on 6 March 2008, the Full Court allowed an appeal from my earlier decision, set aside the orders that I had made and remitted the matter to me to be determined according to law ( Republic of Finland v Tervonen [2008] FCAFC 25).


case_title: Tervonen v Finland [2007] FCA 2067

case_text: On 20 December 2007 I made orders pursuant to s 21(2)(b)(i) of the Extradition Act 1988 (Cth) (the Act) on the application of Jan Tervonen quashing an order of the second respondent made on 6 June 2007 that Tervonen was eligible for surrender to the first respondent, the Republic of Finland, for certain offences, and the consequent issue of a warrant pursuant to s 19(9) of the Act ( Tervonen v Finland [2007] FCA 2067). That decision was based upon the judgment of Rares J in Tervonen v Minister for Justice and Customs [2007] FCA 1684 ; (2007) 98 ALD 589 and consequent orders declaring invalid and quashing successive notices purporting to have been given pursuant to s 16 of the Act ( Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898). That basis for the decision meant that I did not need to consider the other arguments raised on behalf of Tervonen. The Full Court allowed an appeal from the decision of Rares J ( Minister for Home Affairs v Tervonen [2008] FCAFC 24 , corrected in Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32). Consequently, on 6 March 2008, the Full Court allowed an appeal from my earlier decision, set aside the orders that I had made and remitted the matter to me to be determined according to law ( Republic of Finland v Tervonen [2008] FCAFC 25). 2 The general nature of the jurisdiction pursuant to s 21 of the Act is not in doubt it is a rehearing in which the Court reaches its own conclusions on the eligibility for surrender, although only having regard to the material before the Magistrate ( Dutton v O'Shane [2003] FCAFC 195 ; (2003) 132 FCR 352 at 386; Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121 per Black CJ at [20] [24] and [29] and Rares J at [73] [80]). Tervonen challenges both satisfaction of the conditions precedent in s 19(1) and the conclusions on the merits of surrender reached by the Magistrate pursuant to s 19(2). In Tervonen [2007] FCA 2067 (at [6] [9]), I discussed the question as to how a review is to be conducted in relation to s 19(1). It is convenient to deal with the questions arising pursuant to s 19(2) in the first instance. 33 I need not repeat the discussion concerning the proper approach to this provision in a s 21 review set out in Tervonen [2007] FCA 2067 at [6] [9]. The approach most favourable to Tervonen is that the issues are to be decided on the merits. I will consider them on that basis in the first instance. 34 Section 19(1) is as follows: "(1) Where: (a) a person is on remand under section 15; (b) the Attorney General has given a notice under subsection 16(1) in relation to the person; (c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and (d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings; the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country." 35 Tervonen does not dispute that he was arrested pursuant to a provisional arrest warrant and was remanded in custody pursuant to s 15 of the Act on 4 July 2006 and then again on 8 March 2007. However, he claims that he was not on remand in relation to all of the extradition offences. That may be correct in one sense as the amended s 16 notice was served after the second remand, but I accept the submission on behalf of Finland that s 19(1) does not require that the applicant be on remand pursuant to s 15 in relation to each and every extradition offence. In any event, the point is academic in the sense that the offences which had been added after the last remand (57 and 58) are now excluded because of the decision of the Full Court as to the s 16 notice.


case_title: Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898


case_text: On 20 December 2007 I made orders pursuant to s 21(2)(b)(i) of the Extradition Act 1988 (Cth) (the Act) on the application of Jan Tervonen quashing an order of the second respondent made on 6 June 2007 that Tervonen was eligible for surrender to the first respondent, the Republic of Finland, for certain offences, and the consequent issue of a warrant pursuant to s 19(9) of the Act ( Tervonen v Finland [2007] FCA 2067). That decision was based upon the judgment of Rares J in Tervonen v Minister for Justice and Customs [2007] FCA 1684 ; (2007) 98 ALD 589 and consequent orders declaring invalid and quashing successive notices purporting to have been given pursuant to s 16 of the Act ( Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898). That basis for the decision meant that I did not need to consider the other arguments raised on behalf of Tervonen. The Full Court allowed an appeal from the decision of Rares J ( Minister for Home Affairs v Tervonen [2008] FCAFC 24 , corrected in Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32). Consequently, on 6 March 2008, the Full Court allowed an appeal from my earlier decision, set aside the orders that I had made and remitted the matter to me to be determined according to law ( Republic of Finland v Tervonen [2008] FCAFC 25). 20 It appears that Tervonen put a similar argument to Rares J in the proceeding challenging the validity of the s 16 notice see Tervonen [2007] FCA 1684 ; 98 ALD 589 at [33] [44]. Rares J decided that it was open to the Minister to form the relevant opinion but did not consider the correctness or otherwise of that opinion, the proceeding before him being a challenge on administrative law grounds. 21 In my opinion, it is tolerably clear in the present case that only the first three warrants would normally be regarded as being "for the arrest of the person for the offence", the other warrants being connected with coercive investigation. To borrow from Art 1 of the Treaty, it was only those warrants by which Tervonen had been charged by a competent authority with the relevant offences against the law of Finland, bearing in mind that an extradition treaty must be a treaty relating to the surrender of persons accused or convicted of offences (s 5). That conclusion is assisted by the failure of Finland to produce material to the Magistrate explaining the system as it applied to the issues in the case.


case_text: The general nature of the jurisdiction pursuant to s 21 of the Act is not in doubt it is a rehearing in which the Court reaches its own conclusions on the eligibility for surrender, although only having regard to the material before the Magistrate ( Dutton v O'Shane [2003] FCAFC 195 ; (2003) 132 FCR 352 at 386; Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121 per Black CJ at [20] [24] and [29] and Rares J at [73] [80]). Tervonen challenges both satisfaction of the conditions precedent in s 19(1) and the conclusions on the merits of surrender reached by the Magistrate pursuant to s 19(2). In Tervonen [2007] FCA 2067 (at [6] [9]), I discussed the question as to how a review is to be conducted in relation to s 19(1). It is convenient to deal with the questions arising pursuant to s 19(2) in the first instance.


case_outcome: followed

case_text: However, counsel for Finland submits that this argument is effectively foreclosed to Tervonen by the decision of the High Court in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528. There are certainly similarities between that case and this, as extradition was sought by the Republic of Austria, a civil law country as is Finland. The Full Court of this Court had held that, on the material placed before the Magistrate on behalf of the Republic of Austria, he could not properly be satisfied in terms of s 19(2)(a) and s 19(3)(a) of the Act that the duly authenticated warrant that he had before him provided for the arrest of the appellant as a person "accused" of the offences to which the warrant referred ( Kainhofer v Director of Public Prosecutions (1994) 52 FCR 341 at 359G). The Court had held that the Act and the Treaty with Austria (which appears to be similar to that in the present case) provided for the surrender of a person only if the person was "accused" or convicted of an extradition offence. Their Honours said ( Kainhofer 52 FCR at 358 359): "Neither the Act nor the Treaty, however, defines the circumstances in which a person is to be regarded as being "accused" of the offence or offences in respect of which surrender is sought. In the jurisprudence of this country, one would not normally speak of a person as a person who is "accused" of a criminal offence in the sense in which that expression is used in the Act unless legal proceedings for the imposition of a penalty in respect of the offence have been commenced by the laying before a magistrate or other appropriate official of an information or complaint alleging the commission of the offence or by the presentation to a court of an indictment alleging such commission or unless the person has been formally charged with the offence before an appropriate official following upon his arrest. That statement may not be exhaustive but, in any event, it would not be sufficient to establish that a person was "accused" of an offence to show only that a complaint had been made to the police alleging the commission of the offence or that the police, or other investigating body, were conducting inquiries to determine whether there was evidence of the commission of the offence sufficient to warrant the person being "accused" of the offence in the sense mentioned." 24 It is not at all clear to me what meaning is to be given to the words "for the offence" in s 19(3)(a) in the light of the decision of the High Court. The submission for Finland reduces the content of s 19(3)(a) (and so s 19(2)(a)) to mere authentication of the warrant. So far as the substance of the warrant is concerned, all that is necessary is to tick off the offences against those in relation to which extradition is sought. It is difficult to discern any reason in principle why the opinion of the Attorney-General in relation to s 16(2)(a)(i) should not be examinable by the Magistrate where appropriate and yet the opinion in relation to s 16(2)(a)(ii) and s 16(2)(b) can be dealt with on the merits by the Magistrate notwithstanding the earlier opinion of the Attorney-General. It is even more difficult to understand why a magistrate's satisfaction in relation to a provisional arrest warrant pursuant to s 12 should decide the relevant issue to the exclusion of a magistrate pursuant to s 19 where appropriate. Neither the Attorney-General nor the first Magistrate has any better means of deciding the point than would be available to a properly instructed magistrate acting pursuant to s 19. However, I can see no escape from the conclusion that the decision of the High Court in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; 185 CLR 528 does have the effect as submitted on behalf of Finland. 25 On the merits of the issue, if it were open to be considered, in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; 185 CLR 528 , Gummow J said (at 564): "The fundamental question is whether the person whose extradition is sought under Pt II is one in respect of whom there has been taken by the competent authorities in the extradition country a decision to invoke the operation of the criminal law by the taking of whatever steps are necessary to initiate what might fairly be described as a prosecution." The fact that his Honour did not agree with the conclusion of the Full Court in that case on that issue would not be of any significance here, as the facts here are considerably stronger than the facts in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; 185 CLR 528. There is nothing in the majority judgment in the High Court to indicate that they would have taken a different view in principle from Gummow J if the question had fallen for determination. 26 In my opinion, there is no substance to the issues raised by Tervonen concerning authentication of the warrants, bearing in mind the provisions of s 19(7) and s 19(8) of the Act and Art 8(2) of the Treaty. The original documents are in evidence. 27 It was also submitted that warrants 1, 2 and 3 were vitiated by a conflict of interest on the part of the prosecutor making the claim for those warrants as he was a victim of one of the other alleged offences, and so the warrants could not be authenticated. Even if a conflict were established, it would not affect authentication and there is no other relevant ground to oppose surrender available under s 19(2) on that basis. 36 The validity of the amended s 16 notice, excluding offences 55, 57 and 58, has been established by the decision of the Full Court in Minister for Home Affairs v Tervonen [2008] FCAFC 24 with supplementary reasons Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32. In any event, in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; 185 CLR 528 , Brennan CJ, Dawson and McHugh JJ said (at 539): "Lacking any power to review those decisions [including the giving of a s 16 notice], a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made."


case_outcome: discussed

case_text: However, counsel for Finland submits that this argument is effectively foreclosed to Tervonen by the decision of the High Court in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528. There are certainly similarities between that case and this, as extradition was sought by the Republic of Austria, a civil law country as is Finland. The Full Court of this Court had held that, on the material placed before the Magistrate on behalf of the Republic of Austria, he could not properly be satisfied in terms of s 19(2)(a) and s 19(3)(a) of the Act that the duly authenticated warrant that he had before him provided for the arrest of the appellant as a person "accused" of the offences to which the warrant referred ( Kainhofer v Director of Public Prosecutions (1994) 52 FCR 341 at 359G). The Court had held that the Act and the Treaty with Austria (which appears to be similar to that in the present case) provided for the surrender of a person only if the person was "accused" or convicted of an extradition offence. Their Honours said ( Kainhofer 52 FCR at 358 359): "Neither the Act nor the Treaty, however, defines the circumstances in which a person is to be regarded as being "accused" of the offence or offences in respect of which surrender is sought. In the jurisprudence of this country, one would not normally speak of a person as a person who is "accused" of a criminal offence in the sense in which that expression is used in the Act unless legal proceedings for the imposition of a penalty in respect of the offence have been commenced by the laying before a magistrate or other appropriate official of an information or complaint alleging the commission of the offence or by the presentation to a court of an indictment alleging such commission or unless the person has been formally charged with the offence before an appropriate official following upon his arrest. That statement may not be exhaustive but, in any event, it would not be sufficient to establish that a person was "accused" of an offence to show only that a complaint had been made to the police alleging the commission of the offence or that the police, or other investigating body, were conducting inquiries to determine whether there was evidence of the commission of the offence sufficient to warrant the person being "accused" of the offence in the sense mentioned."


case_outcome: applied

case_text: Tervonen argues that at least one charge (offence 5) is barred by a time limitation in Finland and that the limitation of time in relation to offence 8 and offence 9 expired on 5 July 2007. It is submitted for Finland that that question is irrelevant as it does not arise pursuant to s 19(2). That proposition follows from the wording of the section together with the authority of the Court in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 303. Tervonen submits that this should be qualified because Art 7(2)(d) of the Treaty requires setting out the relevant provisions of the statute creating the offence or a statement of the relevant law as to the offence including any law relating to the limitation of proceedings. It was also submitted on behalf of Finland that, certainly in relation to the first warrant, it is clear that criminal proceedings were commenced within the limitation period. 32 Whilst the effect of the Treaty when combined with s 11 of the Act may be to require production of information as to time limitations, there is nothing in the Treaty or the Act which would entitle the Magistrate to take that information into account in deciding eligibility for surrender. This may seem anomalous, but presumably the Attorney-General can take that information into account in exercising the discretions in relation to surrender pursuant to s 22 of the Act as well as the earlier discretion pursuant to s 16.


case_text: This is an appeal from orders of the Federal Magistrates Court made on 11 July 2007 dismissing an application for review of a decision of the Refugee Review Tribunal ('Tribunal'): SZJRW & Anor v Minister for Immigration & Anor [2007] FMCA 1099. On 19 October 2006, the Tribunal published its decision to affirm a decision of the delegate of the first respondent ('the Minister') to refuse to grant each appellant a protection visa under the provisions of the Migration Act 1958 (Cth) ('the Act'). 2 Appellant SZJRW, the primary appellant, is a citizen of the People's Republic of China ('China') who sought a protection visa based upon a contended well-founded fear of persecution on the ground of his participation in protests against the government of China, that is, by reason of his political opinion. Appellant SZKEM is his wife and sought a protection visa as a family member of the primary appellant. 3 In these reasons, I will use the term 'the appellant' as a reference to the circumstances, findings and contentions concerning the primary appellant unless otherwise apparent.


case_text: The appellant says a proper inference can not be drawn from the country information relied upon by the Tribunal that an applicant for a passport is of no interest to PRC authorities on grounds of prior protest conduct for reasons of political opinion, simply because the applicant obtains a passport and achieves an objective of lawfully leaving China. However, five things should be noted. First, the Tribunal was entitled to prefer the country information it obtained and rely upon it in discharging its fact-finding role ( NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 [11] and [41], relying upon VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 ; (2005) 141 FCR 291 and VAO v Minister for Immigration and Multicultural Affairs [2002] FCA 161 at [25] ). Secondly, the finding is primarily supported by the Tribunal's assessment of the appellant's evidence. Thirdly, the appellant accepted that he had not engaged in protest activity and explained the conjunction of circumstances causing that to be so. Fourthly, even if no proper inference arises out of the older country information, the Tribunal did not act on 'no evidence' in reaching its finding as evidence (that is, the appellant's own evidence) supported the finding. Fifthly, the question of whether there is any evidence of a particular fact is a question of law just as whether a particular inference can be drawn from facts found or agreed is a question of law. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, clearly enough, there is no error of law in simply making a wrong finding of fact. In addition, even if the reasoning upon which the decision-maker reached its conclusion of fact is demonstrated to be unsound, that would not amount to error of law ( Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ; (2002) 65 ALD 141 per Sundberg, Emmett and Finkelstein JJ at [34]). Even if it is accepted that the earlier country information did not support an inference drawn by the Tribunal, there was nevertheless evidence before the Tribunal supporting the findings of fact.


case_title: VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 ; (2005) 141 FCR 291


case_title: VAO v Minister for Immigration and Multicultural Affairs [2002] FCA 161


case_title: Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ; (2002) 65 ALD 141


case_text: The Tribunal's reference to the country information upon which it relied is said to reflect a less rigorous standard for assessing prospective risk and reflects an approach on the part of the Tribunal of simply relying upon out of date and irrelevant information rather than an inquiring or analytical approach to the question before it. Two things should be noted about this contention. First, it is clear from the Tribunal's reasons that it comprehensively reviewed all of the evidence both in terms of the appellant's written evidence and the evidence of the witnesses at the hearing. Thus, the Tribunal did not simply rely upon 'old decision templates'. Rather, the Tribunal asked itself whether it could be satisfied on all the material that the appellant held a well-founded fear of persecution for a Convention reason should he return to the PRC. Secondly, to the extent that the appellant's contention raises the notion of bias on the part of the Tribunal, there is no basis for such a ground of challenge. There is no evidence of pre-judgment by the Tribunal ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 , per Gleeson CJ and Gummow J at [71] and [72]). If the contention is one of apprehended bias rather than actual bias, no fair-minded lay observer examining the reasons of the Tribunal could reasonably apprehend bias ( Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28 ; (2001) 179 ALR 425 per Gleeson CJ, Gaudron and Gummow JJ at [27] - [32]; Ebner v Official Trustee [2000] HCA 63 ; (2000) 176 ALR 644 at 647 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Expectation Pty Ltd v PRD Realty Pty Ltd & Anor (No. 2) [2006] FCA 392 ; (2006) 151 FCR 160).


case_title: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28 ; (2001) 179 ALR 425


case_title: Ebner v Official Trustee [2000] HCA 63 ; (2000) 176 ALR 644


case_title: Expectation Pty Ltd v PRD Realty Pty Ltd & Anor (No. 2) [2006] FCA 392 ; (2006) 151 FCR 160


case_text: Section 91R(3) requires the appellant to demonstrate to the satisfaction of the Tribunal that his protest activities in Australia were undertaken for reasons other than the purpose of strengthening his claim to be a refugee. The onus of proof to the civil standard is borne by the appellant ( SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 per French, Lander and Besanko JJ at [39]; NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 per Wilcox J at [26]; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; 156 FCR 419 per Young J at [89] with whom Gyles J and Stone J agreed).


case_title: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536


case_title: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; 156 FCR 419


case_title: Perkins v Cuthill (1981) 34 ALR 669

case_text: The other formulation of the appropriate test is that an order may be made under s 15(1) of the ADJR Act if the applicant satisfies the Court that it is just in all the circumstances to make such an order. That was the approach suggested by Keely J in Perkins v Cuthill (1981) 34 ALR 669 at 671 and favoured by French J in Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 at 131. 37 In Snow v Deputy Commission of Taxation (supra), French J said that there may be cases where an order under s 15 of the ADJR Act will not be made, even though the test for the granting of an interlocutory injunction is satisfied. His Honour said (at 129): 'In my opinion however there may be cases where, for reasons peculiar to the administration of the Judicial Review Act and the particular legislative scheme on which it is operating, the establishment of a "serious question" to be tried and a balance of convenience in favour of an applicant, ordinarily sufficient to justify the grant of an interlocutory injunction, will be insufficient to warrant the making of an order under s 15. It is unnecessary for present purposes to attempt an exhaustive definition of the boundaries within which the powers conferred by the two sections may operate.' Allowing for that possibility, French J said that it would be preferable to adopt the test formulated by Keely J in Perkins v Cuthill (supra). 38 In many cases, including the present, the application of the test for an interlocutory injunction is the proper test to be applied on an application under s 15(1). Both parties to this application argued the application on the basis that the two requirements for an interlocutory injunction were both necessary and sufficient and I will proceed on that same basis. 39 I turn to consider whether there is a serious question to be tried.


case_title: Snow v Deputy Federal Commissioner of Taxation (WA) (1987) 70 ALR 672


case_title: Faingold v Zammit (1984) 1 FCR 87

case_text: In Faingold v Zammit (1984) 1 FCR 87 the Full Court of this Court considered the two formulations and said that, in practical terms, there may be very little difference between them. It held that the trial judge in that case had not erred in applying the test appropriate on the application for an interlocutory injunction.


case_text: To successfully challenge the Registrar's decision, the applicants must make out one of the above grounds in the context of a power the exercise of which is conditioned on the Registrar being satisfied of one of the grounds in s 71(2) of the Act. The question of the limits that this fact places on the scope of a challenge to a decision has been considered in a number of authorities, but it is unnecessary to pause on this point on this application: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110; Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602 per Gaudron and Gummow JJ at 628-629.


case_title: Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602


case_text: The Registrar authorised the preparation of the examination report pursuant to s 60. The examiner spoke to certain persons for the purposes of preparing the examination report. The applicants contend that there were persons the examiner should have spoken to, to whom he did not speak. The notice to show cause is based on the findings of the examiner, as set out in his report. As I have said, it seems that the delegate of the Registrar had a copy of the examination report before preparing the notice to show cause, but the examination report was marked 'Draft'. It was not until some time after the service of the notice to show cause that the delegate was told the examination report marked 'Draft' was in fact the final report. There is evidence before me that the delegate was told this some time in late February 2006. The conclusions of the delegate for the purposes of his decision to appoint an administrator were based on the findings of the examiner. The applicants asked for a copy of the examination report before responding to the notice to show cause, but it was not provided. I doubt that the failure to provide the examination report amounts to a breach of the rules of natural justice: see Jameson v Guri Wa Ngundagar Aboriginal Corporation [2001] FCA 1104. The applicants pointed to the fact that the Registrar did not raise any further concerns that she had despite their invitation by letter dated 5 April 2006 to do so. 47 It is not clear to me that there is a serious question to be tried. Had the fate of this application turned on that issue, I would have been disposed to allow the applicants to make further submissions on the issue. Although they have already had an adequate opportunity to do so, the decision is an important one from the applicants' point of view. As it is, I have reached the conclusion that the balance of convenience clearly favours the refusal of the application and it is unnecessary to pursue the issue of whether there is a serious question to be tried any further. 48 I turn now to consider the balance of convenience.