WITHAM v HOLLOWAY [1992] NSWCA 279

WITHAM v HOLLOWAY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 20 July 1992

[1992] NSWCA 279

Mahoney JA This matter arises from an order made by Hodgson J on 22 April 1992 directing, inter alia, that the defendant in those proceedings, John Allen Witham, be committed to prison for a period of one month for contempt.

The contempt in respect of which the order is made was described by the Judge in his judgment on that date as being "serious". His Honour said:

"Tt was reckless in relation to the affidavit, and there was deliberate dealing with assets, clearly involving the risk that thereby assets would be dissipated below the limit of $200,000. The swearing of the affidavit helped the defendant avoid the appointment of a receiver; and by means of the affidavit and the dealing with the assets, he has frustrated the objective of the orders of ensuring that justice was done, by way of providing a means of satisfaction of a judgment in the event of a judgment being obtained. In the events that have happened, it appears that the obtaining of the judgment from Lee J has been an expensive and wholly fruitless exercise, largely because of the contempt committed by the defendant. I think it is necessary to impose a penalty to make it clear that these are serious matters."

The matter is, therefore, one to which particular attention should be given to ensure that what is done does not constitute avoidance of the obligation imposed by Hodgson J. I say that without, of course, in any way pre-empting the fate of the appeal.

An appeal has been lodged against the order that was made. The Notice of Appeal in manuscript form is directed to the essential question of "harshness of the order that was made". The only ground in the Notice of Appeal is, "that the imposition of a custodial sentence is harsh and severe in all the circumstances of this case and the evidence presented".