Witham v Holloway [1995] HCA 3

High Court of Australia Brennan, Deane, Toohey, Gaudron and McHugh JJ Witham v Holloway [1995] HCA 3

ORDER

1. Appeal allowed with costs.

2. Set aside paragraph one of the order of the New South Wales Court of Appeal and in lieu thereof order:

(a) Appeal allowed with costs.

(b) Set aside the order of Hodgson J made on 22 April 1992.

(c) Remit the matter to the Equity Division of the Supreme Court of New South Wales for rehearing.

(d) The costs of the earlier hearing before Hodgson J to abide the result of the rehearing.

Cur adv vult

The following written judgments were delivered:—

11 October 1995 Brennan, Deane, Toohey and Gaudron JJ.

This is an appeal from a unanimous decision of the Court of Appeal of the Supreme Court of New South Wales dismissing an appeal from an order of Hodgson J committing John Allan Witham (the appellant) to prison for one month for contempt of court. His Honour found the appellant guilty of contempt in that he failed to comply with orders made by Powell J in proceedings brought against him and others by John William Holloway (the respondent) as Commissioner for Consumer Affairs (the substantive proceedings). In those proceedings [1] the respondent sought injunctions restraining the appellant from carrying on any house removal business and also sought damages on behalf of persons who had suffered loss as a result of his business activities.

1. The proceedings were brought under ss 65 and 72 of the Fair Trading Act 1987 NSW.

As a preliminary step in the substantive proceedings, the respondent obtained an order that the appellant swear and file "a full and sufficient Affidavit setting out details of all his property in Australia of the value or values thereof, and of the location of the same and of any document or documents evidencing title to the same" (the disclosure order). Thereafter, he secured an order based, at least to some extent, on what was disclosed in the affidavit, restraining the appellant from "dealing with, or disposing of any of his property within Australia in such a way as to reduce the value thereof below the sum of $200,000" (the Mareva injunction). Judgment was eventually entered against the appellant in the substantive proceedings and, later, when it appeared that he had no assets to satisfy the judgment debt, the respondent brought proceedings for contempt, alleging breach of the disclosure order and, also, the Mareva injunction. Hodgson J found that there had been a breach of both orders.