YOUNG v REGISTRAR OF THE COURT OF APPEAL [No 1] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 11 November 1992, 11 November 1992 [1992] NSWCA 284 PRACTICE AND PROCEDURE — bail — variation of — contempt proceedings in Court of Appeal — contempt arises out of earlier departure of contemnor from Australia — application by contemnor for leave to depart Australia temporarily on business visit to China — held: (by Kirby P): The contemnor's bail conditions should be varied to permit his departure from Australia conditional upon the deposit of security of cash, or equivalent, of $10,000 and security over his parents' real property and insurance policy. Kirby P Mr Gary Young is before the Court this morning on an application for avariation of conditions of his bail. The application is made by a motion. The motion is ancillary to a summons which has been filed by the Registrar of this Court. The summons claims that Mr Young has been guilty of contempt and should be dealt with accordingly. The proceedings for contempt are before the Court. They were originally listed for hearing in September 1992, but that date was vacated. They have not yet been re-listed for hearing. However, in the nature of the Court's list it is likely that that will now be heard some time in February 1993. The application for a variation of the bail conditions is made so as to permit Mr Young to proceed to Beijing, in the People's Republic of China, in the week of 14 to 21 November 1992 or thereabouts, depending upon airline timetables. The purpose of the visit is set out in a number of affidavits, which have been read before me this morning. Those affidavits, and certain oral evidence which Mr Young has given, suggest that he is in negotiation with interests in the People's Republic of China for the purpose of providing television receiving equipment, which will enable television signals to be received in Australia via satellite. This equipment is proposed to be sold within Australia. Mr Young is also negotiating for the raising of funds to establish a business in Australia for the purpose of marketing the receivers. I do not consider that it is necessary for me to go into the details of the proposed business or the negotiations. Translated copies of letters to the Chinese interests have been put before me. They have an air of verisimilitude. They certainly appear to indicate that some negotiations of the kind described are in fact proceeding. Mr Young says that although he could be represented in China by his brother, Mr Ronald Young, the prospects of success in the negotiations would be much greater if he were free to travel to China personally. That statement is confirmed by an affidavit of Mr Ronald Young. Having regard to the background of this case, one naturally pauses before providing any authority upon which Mr Young could, once again, leave Australia. The nature of the contempt alleged against him is that he left this county, on an earlier occasion, in defiance of the orders of the Supreme Court made by Hope J. 2 UNREPORTED JUDGMENTS However, Mr Young has offered to provide security as an assurance of his return. His offer is confirmed by his parents (Mr Kevin Young and Mrs Veronica Young) whose affidavits have been read. The security relates to their real property and an insurance policy. There is, as well, to be the deposit of a sum of $10 000 in cash or its equivalent. Having heard and seen Mr Young today and having read the affidavits of his parents, I find it difficult to conceive of the possibility that he would not return to Australia, realising, as he fully must, that were he to fail to do so there would be the gravest consequences for his parents' assets. I want him to be in no doubt that if he does fail to return, those assets will be forfeited to the full extent of the orders which the Court makes. The proposal for the amendment to the bail conditions should, therefore, be acceded to upon terms, the precise language of which is to be considered by counsel for the Registrar and counsel for Mr Young. They can be handed up later in the day, if agreed. Otherwise, they will be determined by me at 2 pm this day. It is, of course, necessary to say that the issue of travel documents to Mr Young is not within the gift of this Court. This will be determined by the Australian Migration or Passport authorities. However, so far as the Court is concerned, I would be prepared, on the conditions which I have foreshadowed, to permit Mr Young to proceed overseas. I understand that this is a precondition to his hope of success in securing the necessary travel document. He will have to make his own representations to the Australian authorities to get such document. Such document should be confined to a single return journey from Sydney to Beijing. It should be for the limited purpose during the limited time necessary for him to complete the negotiations to which he has deposed. The travel document should be surrendered on his return to Australia. The orders will be postponed until later in the day. If agreed, the orders may be handed up during the hearing of other proceedings before the Court. The orders will be made by the Court at that time. Otherwise, they can be handed up before me sitting alone at 2 pm today. The costs of the proceedings should be borne by Mr Young, as he is the person seeking a special benefit from the Court. I have been exercising, in this application, the powers of the Court under s46(1) of the Supreme Court Act 1970. 1. Undertakings giving effect to the orders proposed be prepared by the parties and handed to the Court; and 2. The claimant to pay the costs of the proceedings. Counsel for the Claimant (on motion): T M Healey Counsel for the Opponent (Registrar): S D Kalfas Solicitors for the Claimant (on motion): John Pearson, Legal Aid Commission Solicitors for the Opponent (Registrar): H K Roberts, Crown Solicitor