WITHAM v HOLLOWAY (No2) [1992] NSWCA 280

WITHAM v HOLLOWAY (No2)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, CRIPPS JJA and SAMUELS AJA 28 October 1992

[1992] NSWCA 280

Handley JA This is an appeal by Mr John Allen Witham from orders made by Hodgson J in the Equity Division who had found him guilty of civil contempt arising from disobedience of orders made by a Judge of that Division. On 22 April this year Hodgson J ordered that the appellant be committed to prison for one month for those contempts. His Honour also ordered the defendant to pay the plaintiff's costs of the proceedings.

On 22 May his Honour deferred the commencement of the sentence of imprisonment until 16 June on certain undertakings. thereafter on 20 July 1992 Mahoney JA, sitting as a single Judge of this Court under s46 of the Supreme Court Act, further stayed the execution of Hodgson J's order until 24 August and on that day the President continued the stay until the hearing of this appeal or further order.

Mr Kintominas, who has appeared for the appellant today, has challenged the orders made by Hodgson J on grounds going to the findings of guilt and upon other grounds going to the question of penalty.

His first submission was that the standard of proof in cases of so-called civil contempt is proof beyond reasonable doubt. In the present case the contempts found by the Judge arise from breaches of orders made in the Equity Division. The first order was that the appellant file an affidavit of his assets and liabilities. This order was made in the course of proceedings in which a Mareva injunction had been granted restraining the appellant from dealing with or disposing of his property in Australia.

The order made on 1 November 1989 was 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 of the same.