WITHAM v HOLLOWAY (No 1) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 24 August 1992 [1992] NSWCA 281 PRACTICE and PROCEDURE — contempt — failure of contemnor or solicitor to appear at call-over before Registrar — matter returned before Judge — whether stay of sentence for contempt ordered by Hodgson J should be lifted — evidence of withdrawal by former solicitors — HELD: (by Kirby P): Stay should not be lifted but orders for expedition and due prosecution of appeal made for default of which stay may be lifted. Supreme Court Act 1970, s46 (1). Kirby P Mr John Allen Witham appeals to this Court from an order made by Hodgson J on 22 April 1992. The hearing of the appeal has not yet taken place. The appeal was listed before the Registrar on 12 August 1992 for the purpose of settlement of the appeal papers. This is a step ancillary to the hearing of the appeal. Mr Witham did not appear. It seems that, shortly before that date, Mr Witham's former solicitors withdrew from representing him. The notice which was sent to him may not, in the clearest of terms, have informed him that he was obliged to be present when the papers for the appeal were listed to be settled by the Registrar. In such circumstances it would not be just to dismiss the appeal now for want of prosecution or to lift the stay of the execution of the sentence under appeal. It is imperative that the appeal should come before the Court without delay. This is because the sentence imposed by Hodgson J, for the contempt on the part of Mr Witham which his Honour found, has been stayed by the order of the Court effectively until the termination of the appeal. I must make it entirely clear that, if on the next occasion, Mr Witham does not appear before the Registrar so that the appeal papers can be settled in order that the appeal can proceed with due expedition, the matter will be restored to my list on the following day. I will there and then, after affording opportunity to Mr Witham to be heard, revoke the stay. The orders which I make are therefore: 1. Vacate the date fixed for the listing of the proceedings before the Registrar for the settlement of the proceedings before the Registrar for the settlement of the appeal papers on 20 October 1992; 2. Order that the appeal be called over before the Registrar on Thursday, 27 August 1992 at llam; 3. Order that the costs of the proceedings before the Court today be paid by the opponent, the appellant in the appeal; 4. Order expedition of the hearing of the appeal, category B to the intent that the appeal will be heard within a period of two months; 5. Continue the stay in the execution of the sentence upon the same conditions ordered by Mahoney JA on 20 July 1992, namely: JOBNAME: No Job Name PAGE: 2 SESS: 1 OUTPUT: Wed Oct 24 12:40:53 2007 /reports/caseml]/case/urj/9202881 UNREPORTED JUDGMENTS (a) the surrender of the appellant's passport which will remain in the custody of the Registrar of the Court pending determination of the appeal or any further or other order of the Court or of a Judge of Appeal; and (b) the due prosecution of the appeal in accordance with the Rules and the order for expedition which I have just made. That foregoing stay will remain in force until the determination of the appeal so expedited or until any further or other order of the Court or of a Judge of appeal; . Give leave to either party to restore the matter to the list upon one day's notice to the other; and . Order written submissions by the respondent. I do not order written submissions by the appellant, the matter being criminal in nature. However, if written submissions can be provided, they are generally helpful. 15 The orders which I have pronounced are the orders of the Court. Counsel for the Claimant: T Shulge Solicitors for the Claimant: Watsons 20 Counsel for the Respondent: NF Frances Solicitors for the Respondent: HK Roberts, State Crown Solicitor