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". Mr Shulze, who has recently come into the matter, informs the Court that no steps have been taken to date with a view to the presenting of the appeal. The Notice of Appeal before me indicates the appeal papers are to be settled on 12 August 1982. Counsel are not able to inform the Court of any default which has presently taken place in relation to the pursuit of the appeal. I shall act upon the assumption that Mr Witham is not personally in default in that regard. If that be wrong, steps can be taken to deal with those matters. In the circumstances, as Hodgson J pointed out in his judgment, to refuse a stay might result in the appeal being rendered abortive. I have this in mind as an important, though not necessarily a determinative matter. If the appeal were delayed or proper steps not taken to bring it on then the Court might take a different view in relation to the stay. In the circumstances in which this case has been presented to the Court, I do not think it necessary to enlarge upon that at the present time. 2 UNREPORTED JUDGMENTS I think the appropriate order to be made is, stay of execution of the order be granted until 24 August 1992 in order to enable the parties to proceed with the preparation of the appeal in the matter and to enable the Court to have some information by that time as to what the nature of the steps that have been taken are. The order for stay should, however, be subject to conditions. Both parties are agreed that some conditions would be appropriate. I propose to order that it be a condition of the stay that Mr Witham proceed with due expedition and in accordance with the rules in the pursuit of the appeal. I order that the passport of Mr Witham be surrendered to the Registrar of the Court and held by him until the disposal of the appeal or further order and that that surrender be within three days from today's date. I make that a condition pursuant to the indication which has been given by Mr Witham in his affidavit of 17 July 1992 that he would be prepared to comply with such a condition. Mr Shulze has not dissented from that. I direct that Mr Witham notify the Court within three days of the city address of his present solicitor at which documents may be served. I direct also that Mr Witham indicate to the Court within forty-eight hours of such event any change of solicitor which may occur and any change of his present address and that he indicate within that time a place at which documents may be served upon him. Subject to those conditions, I direct that the order be stayed up to and including 24 August 1992. I give liberty to either party to apply on two days' notice should there be any breach of such conditions or a legitimate desire to alter the terms or the conditions. I will reserve the costs of today's proceedings.